Amicus Brief — Wolman v. Walter

RECORD PRESS, INC., 95 MORTON ST, NEW YORK, N. Y. 10014—(212) 243.5775

>_>

—_——~ ~« 976

Ocroser Term, 1976 [ wcwee POI

-

_——

—<—<- «=

No. 76-196

—_

Benson A. Woman, et al.,

Appellants,

—

Martin W. Essex, etc., ef al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

—X—K—K—K—K—X—KXK—X—X—X—X—X — —_—_—_——-

—_—_—_ ————— ——

BRIEF OF THE STATE CONVENTION OF BAPTISTS

IN OHIO, THE CHURCHES OF GOD IN OHIO (Ander-

son, Indiana Affiliated), THE OHIO FREE SCHOOLS

ASSOCIATION, AND THE OHIO CONFERENCE OF

SEVENTH-DAY ADVENTISTS, AS AMICI CURIAE

Leonarp J. ScHWARTz

Ayprew M. Fisuman

Scuwartz & FisumMan

150 EK. Mound Street

Columbus, Ohio 48215

(614) 221-2600

Attorneys for Amici Curiae

Puiwire Dunson

145 North High Street

Columbus, Ohio 43215

(614) 228-4859

of Counsel.

———

INDEX

PAGE

I ieee 1

Er 6

ARGUMENT

EEE 9

I 12

Ill. Ohio: “The Dark and Bloody Background” _...... 23

IV. The Court Should Reverse Allen and Adopt More

Concrete Standards ... : ee 27

EEE SESE 31

Taste or AUTHORITIES

Cases Cited:

Abington School District v. Schempp, 374 U.S. 203

0 5, 16

Board of Education v. Allen, 392 U.S. 236 (1968) ...passim

Cantwell v. Connecticut, 310 U.S. 296 (1940) 00... 14

Committee for Public Education and Religious Liberty

v. Nyquist, 413 U.S. 756 (1973) 2002222222222... 11, 19, 20

Early v. Di Censo and Robinson v. Di Censo, 403 U.S.

602 (1970) . sleiiatainnas 18

ii

PAGE

Everson v. Board of Education of Ewing Township,

ee 0 GD ceienetcenstiimentninmeniieneni passim

Essex v. Wolman, 409 U.S. 808 (1973), Motion for leave

to file petition for rehearing denied, 413 U.S. 923

a eT Te ee 19

Hunt v. MeNair, 413 U.S. 734 (1973) 00 19

Kosydar v. Wolman, 353 F. Supp. 744 (S.D. Ohio

1972), aff’2 sub nom. Grit v. Wolman, 413 U.S. 901

(1974) HERRERO ....6, 24, 25

Lemon v. Kurtzman, 403 U.S. 602 (1970) _.......... 18, 19, 23, 25

Levitt v. Committee for Public Education & Religious

Liberty, 413 U.S. 472 (1973) 19

Levitt v. PEARL, 413 U.S. 472 (1973) 202 .. 23

Meek v. Pittenger, 421 U.S. 349 (1975) —...... 3, 7, 9, 10, 21, 24

Murdock v. Pennsylvania, 319 U.S. 105 (1943) 2000... 14

Pierce v. Society of Sisters, 268 U.S. 510 (1925) _.......... 9

Public Funds for Public Schools of New Jersey v. Mar-

burger, 358 F. Supp. 29 (D. N.J. 1973), aff'd 417

U.S. 961 (1974) 22

Quick Bear v. Leupp, 210 U.S. 50 (1908) 9

Sloan v. Lemon, 413 U.S. 285 (1973) .......... »

Tilton v. Richardson, 403 U.S. 672 (1971) 2000000... 19

Walz v. Tax Commissioner, 397 U.S. 664 (1969) ........ 17,19

PAGE

Wolman v. Essex, 342 F. Supp. 399 (S.D. Ohio 1972)

Off’ d 409 U.S. 908 (1972) ..0.2.....-.2c-cereceeeeerersrensnensesers 18, 24, 25

Wolman v. Essex, CA 73-292 (S.D. Ohio 1973), vacaied,

A —————— 24, 26

Wolman v. Essex, 417 F. Supp. 1113 (S.D. Ohio 1976),

prob. juris. noted, 45 U.S.L.W. 3463 (Jan. 10, 1977)

9 a satenietniapamenaianistiiiniasttaiinnniee 24

Statutes Cited:

U.S. Constitution :

ye passim

Ohio Revised Code § 3317.06 .0.0............----ccecceeecceceeeneenees 6,7,8

Authorities Cited:

Areen, Public Aid to Nonpublic Schools: A Breach of

the Sacred Wall?, 22 Case W. L. Rev. 230 (1971) ... 14

Dauper, Everson v. Board of Education: A Product

of the Judicial Will, 15 Ariz. L. Rev. 307 (1973) ........ 14

Freund, Comment, Public Aid to Parochial Schools, 82

Ee 9,11

Nowak, The Supreme Court, the Religion Clauses and

the Nationalization of Religion, 80 Nw. L. Rev. 883

ee 10

Piekarski, Request and Public Aid to Private Mduca-

tion, 58 Marg. L. Rev. 247 (1975) -...---------eec-ceeeoeee 14

iv

PAGE

Skelly, Meek v. Pittinger: Will It Precipitate A Solu-

tion, 20 Catholic Lawyer 335 (1974) _.. . Z

SO Wash. L. Rev. G53 (1975) 2c cccceeeeeeeeeeeeeeee 11, 16

54 N. Car. L. Rev. 216 (1976) .3, 21, 22, 30

58 Minn. L. Rev. 657 (1974) ecco 14, 19

Note, Aid to Parochial Schools: The Test Flunks, 52

Chi-Kent L. Rev. 683 (1976) 9, 23

The Supreme Court, 1970 Term, 85 Harv. L. Rev. 3

(1971) 19

A Survey of Selected Contemporary Church-State

Problems, 51 Notre Dame L. Rev. 737 (1976) ........ 10, 23

Jefferson, “Virginia Bill for Religious Liberty” _... 13, 27

Madison, “Memorial and Remonstrance Against Re-

ligious Assessments” —

L. Pfeffer, Church, State and Freedom, 555-62 (1967) 14

ly THE

Supreme Court of the United States

Ocroser Term, 1976

No. 76-496

— —

Benson A. Wotmay, et al.,

Appellants,

—V.i—

Martin W. Essex, etc., et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

—_$—>—_

BRIEF OF THE STATE CONVENTION OF BAPTISTS

IN OHIO, THE CHURCHES OF GOD IN OHIO (Ander-

son, Indiana Affiliated), THE OHIO FREE SCHOOLS

ASSOCIATION, AND THE OHIO CONFERENCE OF

SEVENTH-DAY ADVENTISTS, AS AMICI CURIAE

Interest of Amici Curiae*

The State Convention of Baptists in Ohio is the govern-

ing body for the Southern Baptist churches in Ohio, repre-

senting approximately 400 congregations, and is affiliated

with the Southern Baptist Convention which has more than

ten million members in the United States. The Southern

* Counsel for the appellants and appellees have orally consented

to the filing of this brief. As soon as their letters of consent are

forthcoming, they will be filed with the Clerk.

Baptists, both in Ohio and nationwide, have traditionally

been in favor of a “wall of separation” between church and

state and oppose any type of financial assistance to private,

church-supported schools. See, e.g., Brief of the Joint Con-

ference Committee on Public Relations Representing the

Southern Baptist Convention and others as Amici Curiae in

Everson v. Board of Education of Ewing Township, 330

U.S. 1 (1947).

The Churches of God in Ohio (Anderson, Indiana Affili-

ated) are a confederation of 204 Ohio Churches of God con-

sisting of nearly twenty-five thousand, two hundred mem-

bers. The Churches of God in Ohio, speaking through their

Executive Council, are opposed to any expenditure of pub-

lic funds for the benefit of parochial schools.

The Ohio Conference of Seventh-Day Adventists com-

prises ninety-one (91) Seventh-Day Adventists churches

in Ohio having approximately ten thousand members.

Churches in the Ohio Conference operate twenty-three (23)

schools having approximately 1350 pupils, but they do not

accept the type of aid challenged in this brief. They believe

that the only proper sources of funds for their schools are

tuition and the voluntary contributions of their members

and other churches and not through the payment of taxes

to a government entity. The Ohio Conference of Seventh-

Day Adventists is opposed to any expenditure of public

funds for the benefit of church sponsored schools including

its own.

The Ohio Free Schools Association (OFSA) is an Ohio

not for profit corporation comprising approximately 1200

members throughout the state of Ohio interested in the pro-

tection and encouragement of the free public school system

—— — eee

in Ohio. More particularly, the OFSA is concerned with the

preservation of the First and Fourteenth Amendments’

guarantees of separation of church and state when applied

to the educational system. The membership of OFSA in-

cludes many educators, religious leaders and lay people of

a’! persuasions, who, collectively and individually, are work-

ing to oppose the enactment of legislation that threatens to

violate the establishment or the free exercise clauses of our

Federal Constitution.

This brief is filed to provide the Court with the views of

amici that a comprehensive and consistent First Amend-

ment Establishment Clause policy can be delineated from

the Court’s prior decisions, although the approach will re-

quire the overruling of Board of Education v. Allen, 392

U.S. 236 (1968)."

Amici also wish to record their belief that it is morally

and constitutionally wrong for any person to be forced to

support the activities of any church. When citizens are com-

pelled through taxation to support the parochial school,

they are being compelled to support the church of which

that school is an extension.

Since the parochial school is by definition a component of

a church, and the pupil is a component of the school, the

granting of tax funds, or of goods and services purchased

with tax funds, to the pupil is equivelent to granting those

funds to the church. It is obviously impossible to aid the

part without aiding the whole.

‘This general supposition is certainly not novel to Amici, see,

eg., 54 N. Car. L. Rev. 216, 224 (1976), nor is it unrecognized

by some members of the Court. Meck v. Pittenger, 421 U.S. 349,

8-79 (1975) (Brennan, J., concurring in part, dissenting in

part).

4

The verbal cosmetics used to disguise the tax support be-

ing given to church endeavors in the instance here under

consideration range from the claim that the aid is only for

the “non-religious” or secular parts of their educational-

indoctrinational operations, to the labeling of the aid as

“loans” to the pupil rather than as gifts to the school. As

for the former claim, it should be pointed out that church

schools like church buildings are comprised of many ele-

ments and constituents which, taken by themselves, are

strictly non-religious in character. Yet, when joined to-

gether and combined around a central and all-pervasive re-

ligious purpose, they comprise a religious entity, with every

part partaking of the nature and orientation of the sec-

tarian totality. The First Amendment will indeed be di-

vested of any real meaning or force if it is construed to per-

mit taxes to be levied for the support of allegedly non-

religious activities of churches.

As for the claim that text-books are “loaned” by the

state to the students who attend parochial schools, let us

ask—“When are these textbooks to be returned to the

state?” The answer is, “Never!” There is no provision

made in the enactment for their return. But, and if, they

are returned, it will not be by the students who “borrowed”

them, but by the parish schools, and they will be returned as

expendable items whose useful life is over. What is being

called a “loan” to the student is palpably a gift to the paro-

chial school system, and therefore to the church that oper-

ates that system.

The Amici submit that the massive parochiaid measure

here under consideration is unconstitutional not only be-

cause it violates the First Amendment’s religious liberty

stipulation, but also because it violates the “No establish-

ment” clause. In effect, this legislation accomplishes a de

facto establishment of a few churches and grants preferen-

tial treatment to the particular method that they have

chosen to use in teaching their youth. As Justice Douglas

once stated:

“The most effective way to establish any institution is

to finance it; and this truth is reflected in the appeals

by church groups for public funds to finance their re-

ligious schools.” (Schempp v. Abingion School Dist.,

374 U.S. 203 (1963)).

The Amici wish to point out that at least one large de-

nomination that operates almost all the nonpublic schools

in Ohio receiving benefits under the Auxiliary Services Act

obtains more in involuntary contributions (i.e. tax aid),

just for its educational activities on the elementary and

secondary level, than any other church receives from all

sources combined. When the state subsidizes one of the

main functions of the largest church in the state, it has

gone a long way towards establishing that church as the

official tax-supported religion of the land.

All religious groups are confronted with exactly the same

needs and problems in regard to teaching and indoctrinating

their youth, but most of them have chosen to use other

means to accomplish their purposes in this area, than the

operation of expensive elementary and secondary schools

which interweave secular and religious instruction. Other

churches are able to live within their incomes, without im-

posing the costs of their operations upon the general public.

We are speaking the often-repeated sentiments of these

bodies when we urgently request the Court to prevent any

church from using the tax-collecting power of the state to

compel those who do not subscribe to its tenets to pay the

costs of its operations.

Statement of Facts

Plaintiffs-appellants’ brought this action to challenge the

constitutionality of Ohio Revised Code § 3317.06 (herein-

after sometimes referred to as the “Statute” or the “Act”),

which makes certain services and materials available to stu-

dents attending non-public religious schools.’ The case

was tried before a three-judge district court which sus-

tained the Act and this direct appeal followed.

Following the example of the appellants’ Jurisdictional

Statement, see pages 4-7, the relevant provisions of the

Act will be summarized rather than quoted in full:

Section A provides for textbook loans to pupils or their

parents. This provision is, of course, a response to this

Court’s holding in Board of Education y. Allen, 392 U.S.

236 (1968).

Section B authoriz& local public school districts “to

purchase and to loan” instructional material to pupils at-

tending parochial schools. Although there is an attempt to

delineate between secular and non-secular materials, it has

been stipulated that this section approves the loaning of

the same materials which were authorized in a previous

* Hereinafter the parties will be designated as they were in the

trial court.

* While the statute involved here speaks in terms of aid to non-

public schools, religious and sgeular alike, the district court, in

previous church-state litigation, recognized that “the vast majority

of nonpublic schools {in Ohio] are sectarian.” Kosydar v. Wol-

man, 353 F.Supp. 744, 762 n.22 (8.D. Ohio 1972), aff'd sub nom.

Grit v. Wolman, 413 U.S. 901 (1974). Hence the characterization

of the statute as aiding “religious” schools is not unreasonable.

7

Ohio law which was declared unconstitutional in light of

Meek vy. Pittenger, 421 U.S. 349 (1975).

Public schools are empowered under Section C to loan

instructional equipment in an identical manner to that es-

tablished by Section B for instructional materials. And,

like the material authorized in Section B, the equipment

available under this section is the same equipment cata-

logued in the prior unconstitutional Ohio law.

Section D licenses the providing of “speech and hearing

diagnostic services to pupils attending nonpublic schools.

...” The services are to be performed “in the nonpublic

school[s].”

Medical, dental and optometrie services are sanctioned

within the nonpublic schools by Section E, Section F grants

diagnostic psychological services to pupils at the nonpublic

school while Section G provides for “therapeutic psycho-

logical and speech and hearing” assistance away from the

private school, “in public centers or in mobile units located

off of the nonpublic premises. .. .”

Section H allows “guidance and counseling services” to

be performed in public schools, public centers or mobile

units in language similar to that employed in Section G.

Also following the outline of Sections G and H, Section I

authorizes “remedial services” to be performed in public

schools, public centers or mobile units,

Section J prescribes “standardized tests and scoring ser-

vices” supplied by the public school system for the use by

students of parochial schools.

Section K charters programs to be implemented by the

publie school district “for the deaf, blind, emotionally dis-

turbed, crippled, and physically handicapped children at-

tending nonpublic schools within the district.” These pro-

grams, too, are to be furnished off of the premises of the

private school. ,

The last substantive section, Section L, provides trans-

portation for field trips for students in nonpublic schools.

The remainder of the statute is administrative but does

have some highly relevant language, some of which is set

out in detail in the appellants’ Jurisdictional Statement at

pages 7 and 8.

ARGUMENT

I.

Introduction

Amici’s position in this action is that this Court’s deci-

sion in Board of Education y. Allen, 392 U.S. 236 (1968)

(hereinafter sometimes cited as “Allen”), should be over-

ruled* since the case has generated the wave of constitu-

tional litigation that Professor Freund so astutely pre-

dicted in his 1969 Comment, Public Aid To Parochial

Schools, 82 Harv. L. Rev. 1680, 1681 (1969) (hereinafter

cited as “Freund”), See also 392 U.S. at 250 (Black, J.,

dissenting). In fact, amici would suggest that careful an-

alysis demonstrates that Allen is a constitutional fossil,

based upon a faulty premise, namely that the secular and

religious mission of the religiously oriented primary and

secondary schoo) can be divided into a pure religious com-

ponent and an untarnished non-religious component,’ see,

e.g., Meek vy. Pittinger, 421 U.S. 349, 365-66 (1975) (herein-

after sometimes cited as “Meck”) ; see generally Note, Aid

to Parochial Schools: The Test Flunks, 52 Cui-Kenrt L.

* Although we have particularized our argument as applying to

Allen alone, amici fully realize that Meck v, Pittenger, 421 US.

349 (1975), too validated a textbook loan plan; however, it seems

to have done so solely on the basis of stare decises. Cf., 421 U.S.

at 359, 362.

* Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Quick

Bear v. Leupp, 210 U.S. 50 (1908), were the authority the Court

used in Allen for its conclusion that nonpublie schools provided

secular education. Pierce involved the question of whether atten-

dance at a private school could qualify as attendance under a

compulsory education law. In Quick Bear the Court allowed

Indians to receive education at religious schools at their own cost.

Neither seems very relevant to the aid to parochial education issue.

10

Rev. 683 (1976), and that attempts to draw upon its prem-

ise have led to legal and factual distinctions without mean-

ingful differences. See, e.g., Nowak, The Supreme Court,

the Religion Clauses and the Nationalization of Religion,

80 Nw. L. Rev. 883, 890-91 (1976). This is a result which

several members of the Court have at times recognized.

Meek, 421 U.S. at 384 (Brennan, J., concurring in part,

dissenting in part).

As a result, amici’s particular interest in this case lies in

the textbook loan program which presents the Court with

the opportunity to review and, hopefully, overturn, Allen.*

This brief, then, is primarily concerned with the proposition

that Allen is no longer constitutionally sound and will leave

it to appellants to argue the limits of permissible services

that may be provided to children attending religious schools

after Meek.

However, our focus should not be taken as a repudiation

of the appellants’ position that Allen need not be overruled

for them to prevail. Rather, it is amici’s feeling that while

Allen can be distinguished and limited as it was in Meek,

a more fruitful approach to the entire establishment clause-

aid to sectarian education controversy can be established if

Allen, the “genesis of the confusion” apparent in this area

of the law, A Survey of Selected Contemporary Church-

State Problems, 51 Norre Dame L. Rev. 737, 761 (1976),

is allowed a respectable fast death as opposed to survival,

only to be amputated piece by piece. Without Allen inter-

* This is not to say that amici’s interest is solely limited to the

textbook loan program. However, we believe that any proper con-

struction of the First Amendment must begin with the overruling

of Allen.

11

fering, a common thread can be found that neatly ties to-

gether the previous aid to parochial education cases and

effectively weaves the tight comprehensive “wall of sepa-

ration” that amici believes the First Amendment commands.

We intend to demonstrate this thesis by first discussing

the reasons behind the First Amendment’s establishment

clause and the case law construing it. In this context we

will follow the Court’s development of the current “three-

prong” (or perhaps “four prong”) test utilized in assistance

to religious elementary and secondary education cases.

See generally, 50 Wasu. L. Rev. 653, 655-660 (1975).

Secondly, we will examine the history of the aid to sec-

tarian schools litigation in Ohio and the legislative attempts

to circumvent the First Amendment. We do so fully appre-

ciating the right of the state to enact legislation which at-

tempts to pass constitutional muster by eliminating the

evils pointed out in past decisions of the Court; however,

in the case of the establishment clause, this recurrent theme

has led to just the type of political debate and division that

the First Amendment sought to forestall. See, Committee

for Public Education and Religious Liberty v. Nyquist, 413

U.S. 756, 795 (1973); Freund, 82 Hanv. L. Rev. at 1692.

Finally, based on this foundation, we will suggest that a

possible test for measuring state programs of aid to re-

ligious schools, which is akin to Everson v. Board of Educa-

tion, 330 U.S. 1 (1947) (hereinafter sometimes cited as

“Everson’), can be found permeating this Court’s pre-Allen

and post-Allen parochial aid opinions.

12

Il.

The Historical Setting

The First Amendment to our Federal Constitution man-

dates that “Congress shall make no law respecting an estab-

lishment of religion or prohibiting the free exercise there-

of,” and, to be permissible, aid to primary and secondary

religious educational institutions must come within its re-

quirements.

That a strict separation between church and state was

incorporated into the Bill of Rights was not an accident.

Our founding father’s ancestors had come to this continent

in order to avoid the turnmoil, civil strife and persecutions

generated by religious differences. Yet few of these settlers

were advocates of religious freedom for others, for where-

ever they settled they established their own “state”—spon-

sored churches. The very charters granted these colonists

usually guaranteed the right to erect religious institutions

which all, believers or non-believers alike, were required

to support and attend.’

So the practices of the old world passed to the new, and

the old religious persecutions became new ones. And all

of the non-believers, according to the description in Everson

“were compelled to pay tithes and taxes to support govern-

ment-sponsored churches whose ministers preached inflam-

matory sermons designed to strengthen and consolidate the

established faith.” Everson v. Board of Education of Ewing

Township, 330 U.S. 1, 10 (1947).

* Examples of such charters can be found in the opinion of the

Court in Everson v. Board of Education of Ewing Township, 330

US. 1, 9 n6 (1947), where the Court examines in detail the

source of the First Amendment.

13

These practices shocked men like Madison and Jefferson

and this shock and indignation ultimately found its expres-

sion in the First Amendment. First, however, their vexation

became embodied in Madison’s “Memorial and Remon-

strance Against Religious Assessment”, which is attached

as an appendix to the dissent in Everson, 330 U.S. at 63, and

in Jefferson’s “Virginia Bill for Religious Liberty.”

When one reads these several documents out of our past,

he or she cannot quibble with Mr. Justice Rutledge’s asser-

tion that “no further proof is needed that the Amendment

forbids any appropriation, large or small, from public funds

to aid or support any and all religious exercises,” 330 U.S.

at 41 (Rutledge, J., dissenting), or with Mr. Justice Black’s

affirmation that “[t]he First Amendment has erected a wall

between church and state. That wall must be kept high and

impregnable.” Jd. at 18.

The first major case claiming that state aid to nonpublic

schools was in violation of the First Amendment was Ever-

son v. Board of Education of Ewing Township, 330 US. 1

(1946). Everson involved a plan whereby the state was to

reimburse parents of all school children for the cost of bus

transportation to and from school. The statute was chal-

lenged as being a law “respecting an establishment of re-

ligion” in that the benefit flowed through the parent to the

parochial school.

By a five to four vote the Court ruled that a state could

constitutionally finance the bus transportation of children

to parochial as well as public schools. Although the ma-

jority, speaking through Mr. Justice Black, found the plan

to be on the “verge” of an establishment, 330 U.S. at 16,

they upheld its constitutionality since the direct beneficiaries

were the school children rather than the church-related

14

schools. Justice Black recognized that there was some bene-

fit to the religious schools, but, he wrote, such benefit was

only incidental and indirect.* Moreover, the Everson Court

saw the statute as “public welfare legislation,” 330 U.S. at

18, necessary to assure that every child would be transported

in a safe manner.’

The Court at the outset made the point that “the State

contributes no money to the Schools. It does not support

them.” /d. at 18. The Court then proceeded to succinctly

establish the First Amendment prohibition against aid:

New Jersey cannot consistently with the establish-

ment clause of the First Amendment contribute tax-

raised funds to the support of an institution which

teaches the tenets and faith of any church.

Id. at 16. The fact that the Court used the phrase “institu-

tion which teaches the tenets and faith of any church” (em-

* The test established in Everson has become widlely known as

the individual or child benefit theory and is, according to one com-

mentator, “perhaps . . . one of the most frequently invoked ideas

in church-state litigation.” Dauper, Everson v. Board of Education:

A Product of the Judicial Will, 15 Ariz. L. Rev. 307, 325 (1973).

It has been extensively discussed as a means of justifying aid to

parochial schools. See, e.g., L. Pfeffer, Church, State and Freedom,

555-62 (1967); Areen, Public Aid to Nonpublic Schools: A Breach

of the Sacred Wall?, 22 Case W. Res. L. Rev. 230, 248-53 (1971).

However, much of the discussion has been sharply critical for

placing form over substance. 58 Minn. L. Rev. 657, 661 n.22

(1974).

* Everson is remembered not only for allowing state-aid to pa-

rochial schools, albeit on a very limited scale, but also because it

was the first case to apply the establishment clause of the First

Amendment to the states via the Fourteenth Amendment’s guar-

antee of “liberty.” In this context, see Murdock v. Pennsylvania,

319 U.S. 105 (1943) ; Cantwell v. Connecticut, 310 U.S. 296 (1940).

While there was little discussion of this aspect of the case, the

concept is now accepted as “given fact”. Piekarski, Request and

Public Aid to Prwate Education, 58 Marg. L. Rev. 247, 251 (1975).

15

phasis added) in drawing its stricture is of some note. Ob-

viously, the line of demarcation is much narrower under the

above interdiction than it would have been had the Court

only limited the prohibition to the use of tax-raised funds

to teach the faith. Nor was the choice of words simply an

accident, for the Court went on to conclude that:

No tax in any amount, large or small, can be levied to

support any religious activities or institutions, what-

ever they may be called, or whatever form they may

adopt to teach or practice religion.

Id. at 16 (emphasis added).

Here, then, was a “wisp of doctrine” that those who

sought public monies for church schools could grasp. For

while Mr. Justice Black spoke of the “wall of separation”,

he found a way to save the New Jersey program. As a

result of this opinion, “all manner of public aids to religious

schools were advanced as benefiting individuals and not

institutions.” Morgan, The Establishment Clause and Sec-

tarian Schools: A Final Installment?, 1973 Sup. Cr. Rev.

57, 61.

On the other hand, what the supporters of parochial

aid failed to perceive was that Justice Black meant his

opinion to be a “deliberate statement” setting the outside

limit of permissable aid and not as a cornerstone to support

various sorts of aid programs. Board of Education v. Allen,

392 U.S. 236, 250 (1968) (Black, J., dissenting). The ob-

vious factor, although not articulated by the Court then or,

for that matter, as yet, was that the aid granted in Everson

did not cross the threshold into the school building. That

is, the State did not enter the religious institution. If

16

Everson is so limited, and one cannot study his dissent

in Allen without believing that Mr. Justice Black would

approve of such a reading, the interpretation of the estab-

lishment clause becomes simple, though hardly simplistic.

Hence, while Everson dug the channel through which aid

could flow to the private, religious schools, “it simultane-

ously constructed the gates by which it might later stop

the flow of such aid.” 50 Wasu. L. Rev. 653, 656 (1975).

Although dealing with Bible reading in public schools,

Abington School District v. Schempp, 374 U.S. 203 (1962),

is important to this area of the law because it provided

various members of the Court an opportunity for an ex-

haustive inquiry into the core meaning of the First Amend-

ment. For our examination, however, it is sufficient to

focus only on the holding, later applied to state aid cases,

that:

[T]jo withstand the strictures of the Establishment

Clause there must be a secular legislative purpose and

a primary effect that neither advances nor inhibits

religion.

Id. at 222. (Emphasis added.)

In Allen, 392 U.S. 236 (1968), this Court applied the

two-pronged Schempp test to uphold a New York statute

authorizing textbooks to be provided, ostensibly on loan,

to children attending non-public parochial schools. Mr. Jus-

tice White, who wrote the opinion for the Court, purport-

edly followed Everson’s individual-benefit theory but, in

doing so, fused it with the Schempp “purpose and primary

effect” test.

Mr. Justice Black, whose opinion in Everson was theo-

retically controlling, was incensed. Professor Richard

17

Morgan, writing in the 1973 Supremz Court Review, de-

scribed Black’s position thusly:

“Justice Black, whose Everson opinion was supposedly

being followed, thought it was not, and that the New.

York arrangement represented precisely the sort of

danger he had warned against in 1947.

Clearly Justice Black was right. The decision in Allen

went a step beyond Everson....”

Morgan, The Establishment Clause and Sectarian Schools:

A Final Installment, 1973 Sup. Cr. Rev. 57, 63.

It was this step over the “verge” that has haunted the

Court ever since. As will be seen, cases that followed Allen

to the Court were burdened by the albatross. This is so

because the premise that clearly underlies the Court’s think-

ing in Allen is that education in a parochial school is sepa-

rable inte religious and non-religious components. Freund,

82 Harv. L. Rev. at 1688. And, we suggest, this premise is

wrong. There must be a religious element that is pervasive

and inseparable, for, if not, there is no reason for parochial

schools, whose entire raison d’etre is religious. Id.

The next major establishment clause case to come before

the Court was Walz v. Tax Commissioner, 397 U.S. 664

(1969). While not an aid case, we mention it in passing

because it was at this juncture that the Chief Justice nur.

tured what was to become the “third prong” of the estab-

lishment clause test. Although upholding a tax exemption

for property used exclusively for religious purposes, the

Court examined the exemption to see if the benefit created

an “impermissible entanglement” between State and church.

397 U.S at 674.

18

During the 1970 Term, the Chief Justice completed the

development of the three-prong test that had only been

ailuded to in Walz. The vehicle for his analysis was three

cases’® jointly decided under the title of Lemon v. Kurtz-

man, 403 U.S. 602 (1970) (hereinafter cited as “Lemon”.”

The plan in Lemon provided for direct reimbursement to

the nonpublic school for actual costs of books, instructional

materials and teachers’ salaries. The plan challenged in

Early and Robinson enabled the state to pay a portion of

the salaries of teachers employed by private schools.

The Court found that each plan had an excessive entangle-

ment between church and State. However, even in reject-

ing the aid plans, the Court was beginning to be shadowed

by Allen. The attempt to distinguish Allen on the ground

that the statutes involved in Lemon provided aid directly

while in Allen the aid went to the students is gossomer

at best. See 403 U.S. at 621. And, Mr. Justice White

scores the majority hard, when he points to the Court’s

“frank acknowledgement that ‘we can only dimly perceive

the boundaries of permissable government activity in this

sensitive area of constitutional adjudication’ [citation

omitted) and that ‘(j)udicial caveats against entanglement’

% The cases decided besides Lemon, were Early v. DiCenso and

Robinson v. DiCenso, 403 U.S. 602 (1970).

™ The Lemon Court was the first to actually refer to a “three-

prong” test: “First the statute must have a secular legislative

purpose; second, its principal or primary effect must be one that

neither inhibits nor advances religion . . . finally, the statute

must not foster ‘an excessive entanglement with religion.’” 403

U.S. at 612-13. The development of the test is tracted in Wolman

v. Essex, 342 F. Supp. 399, 406-11 (S.D. Ohio 1972), aff'd 409

U.S. 808 (1972).

19

are a ‘blurred, indistinct and variable barrier.’” 403 U.S.

at 671 (White, J., dissenting).

On June 25, 1973, the Court handed down four opinions

in the church state area. Three dealt with primary-sec-

ondary schools” while the fourth, Hunt v. McNair, 413 U.S.

734 (1973), upheld a South Carolina program which pro-

vided benefits to sectarian institutions of higher learn-

ing by allowing the institutions to borrow on the credit of

the state.”

Of the four cases, however, Committee for Public Edu-

cation and Religious Liberty v. Nyquist, 413 U.S. 756 (1973)

(hereinafter cited as “Nyquist’’), is the most important.

In Nyquist a New York plan designed in the hope of satis-

fying the tests established in Lemon, Walz and Allen, 58

Minn. L. Rev. 657, 660-61 (1974), and which reimbursed par-

ents for tuition paid, made direct grants to schools for the

costs of maintenance and repair, and provided a tax credit

for tuition payments to private schools was struck down.

The Court concluded that all three components of the law

12 The related cases decided on the 25th and not discussed in

the above text were: Levitt v. Committee for Public Education

& Religious Liberty, 413 U.S. 472 (1973) (invalidating a New

York statute providing for reimbursement of private schools for

certain costs of state required testing materials) ; Sloan v, Lemon,

413 U.S. 825 (1973) (holding unconstitutional a Pennsylvania

statute providing tuition reimbursement to parents of nonpublic

school children). See also, Essex v. Wolman, 409 U.S. 808 (1973),

motion for leave to file petition for rehearing denied, 413 U.S. 923

(1973).

‘8 Hunt and its predecessor, Tilton v. Richardson, 403 U.S. 672

(1971), are not consequential in this case since the differences

between higher education and primary and secondary education

raise different principles. See, ¢.g., 413 US. at 746. But ef., The

Supreme Court, 1970 Term, 85 Harv. L. Rev. 3, 172 (1971).

20

had a “primary effect that advances religion.” 413 U.S. at

774."

The primary objection was that no effort was made “to

restrict payments to those expenditures related to the up-

keep of facilities used exclusively for secular purposes.”

413 U.S. at 774.

As in Lemon, the Nyquist Court was bothered by the

shadow of Allen. Mr. Justice Powell, the author of Nyquist,

attempted to distinguish the program before the Court

In this case the Court also stressed a fourth factor: “One

factor of recurring significance in this weighing process is the

potentially divisive effect of an aid program.” Jd., at 795. It

stated that while perhaps this factor was not conclusive, it was

certainly a “warning signal” not to be ignored. /d., at 797.

To the extent the Court has carved exceptions to the strict

mandates of the establishment clause, states are now permitted

to provide, whether directly or indirectly, certain types of aid

to religious schools.

As such aid is permitted to continue, these schools will become

more and more dependent upon it for their very existence.

Today we are faced with a political climate wherein the pro-

ponents of state aid to religious schools have the willing ear of the

legislature.

One factor that appears to have been overlooked to a large degree

is that there is no requirement that the state provide this aid.

Suppose therefore that the political climate changes and that the

state legislatures become dominated by opponents of religious aid.

What is to stop them from attempting to impose conditions upon

the continuance of state aid. Suppose for example, they were to

attach as a condition to an appropriation bill the requirement that

all religious artifacts be eliminated from religious schools or that

the tenets of the particular religion not be taught therein. What

could be a clearer example of entanglement, or, indeed, of direct

state intervention? And yet how could the church challenge so

manifestly unjust a requirement? Any effort on their part to do

so would result in the withdrawal of the state aid upon which they

rely for their existence.

he potential for abuse of religion by the states is so enormous

that it seems obvious that the “wall of separation” is likely to

crumble in the dust of politico-religious turmoil and upheaval.

21

from those approved in Allen by pointing out that in Allen

the textbooks were loaned to all children whereas only non-

public school children participated in the Nyquist programs.

But, the question still remains, why are textbook loans ac-

ceptable but not other types of secular loan programs di-

rected solely to students? See 413 at 800-05 (Burger, C. J.,

dissenting.)

in Meek v. Pittinger, 421 U.S. 349 (1975), the Court was

again faced with the Allen problem when it reviewed an

auxiliary services and textbook loan program from Penn-

sylvania. The statute before the Court provided for loans

of textbooks, instructional materials, instructional equip-

ment and auxiliary services to students of qualifying non-

publie schools. All aid, in seeking to avoid the objections

raised in Lemon was limited to non-sectarian, neutral and

non-ideological functions. Further to avoid the objections

of Lemon and Nyquist, the equipment, materials and

auxiliary services were “loaned”. Only the students and

not the parochial schools were to benefit economically. And,

in an effort to avoid further religious involvement, the

auxiliary services were to be provided by employees of the

public school system.”

This Court upheld only the loan of textbooks finding it

to be substantially identical to the plan affirmed in Allen.

Although hardly distinguishable from textbooks by any

rule of reason, 54 N. Car. L. Rev. 216, 222 (1976), the Court

struck down instructional materials (clearly non-religious)

since :

1° The equipment allowed under the Pennsylvania act included

projectors and recording equipment—clearly adaptable to religious

training—and this portion of the act was struck down by the dis-

trict court which approved the remainder of the program.

[e]ven though ear-marked for secular purposes ‘[w]hen

[aid] flows to an institution in which religion is so

pervasive that a substantial portion of its functions

are subsumed in the religious mission,’ state aid has

the primary effect of advancing religion.

421 U.S. at 366."*

The Meek Court’s upholding of the textbook loan provi-

sion on the basis of Allen simultaneously with its invalidat-

ing the loan of clearly nonreligious instructional materials

on the basis quoted above, makes Allen the triumph of form

over substance, 54 N. Car. L. Rev. at 222-23.

Reaching this same conclusion, one commentator states:

Thus, the line drawn by the opinion of the Court in

Meek is no more satisfactory than that drawn in

Nyquist. The Court was again unwilling to resolve

the more basic issue, t.e., whether or not the secular

educational and religious training aspects of these

schools really are separable. Until the Court is will-

ing to either accept the separability concept and apply

it consistently or reject it entirely, the patently incon-

sistent opinions of the past eight years are likely to

be repeated in the future.

The Court noted that Public Funds for Public Schools of New

Jersey v. Marburger, 358 F. Supp. 29 (D.N.J. 1973), aff'd 417

U.S. 961 (1974) directly supported their conclusion regarding the

material and equipment loan provision of the act. Not surpris-

ingly, the fact that Marburger affirmed the invalidation of a statute

providing reimbursement to nonpublic school parents for their

expenditures on secular textbooks was not discussed. See, Mar-

burger, 358 F. Supp. 29, 31 (D.N.J. 1973).

sm 8 ae eee ee

23

A Survey of Selected Contemporary Church-State Prob-

lems, 51 Norre Dame L. Rev. 737, 769 (1976).*"

The efforts of the legislature to avoid the objections pre-

viously found by the Court in Lemon and Nyquist, to-

gether with what has occurred after Meek as discussed in

the next section of this brief, make it clear that so long as

Allen remains the law of the land, this Court will be forced

to rule on statute after statute, each statute evading prior

objections, each hopeful of making further inroads into the

separation of church and state. See generally, Note, Aid to

Parochial Schools: The Test Flunks, 52 Cut.-Kent L. Rev.

683 (1976).

III.

Ohio: “The Dark and Bloody Background”

As stated in the Introductory section of this brief, it is

our position that the Court’s reluctance to overrule Allen

has led to the adoption of a test which, at best, is confusing

and, at worst, nonworkable. Moreover, the continued at-

tempts to distinguish Allen from fact patterns brought be-

fore the Court have created just the type of political and

social divisiveness that the First Amendment was meant

to halt. Cf., 421 U.S. at 372. As fast as courts void a re-

pugnant statute, another is passed. Cf., Lemon v. Kurtz-

man, 403 U.S. at 624. Within each decision the proponents

of parochial aid can always find just enough gliramer of

hope to make another run to the legislature. Cf., e.g.,

Skelly, Meek v. Pittinger: Will It Precipitate a Solution,

20 Catrnotic Lawyer 335, especially at 344-45 (1974). Usu-

‘7 Of course, it is amici’s opinion that separability is a fiction.

421 US. at 366. Cf., Levitt v. PEARL, 413 U.S. 472, 480 (1973).

ally time demonstrates that the hope was illusory but the

legislative fights have long since occurred, leaving wounded

feelings, deep scars and religious bigotry.

A good example of this can be found by looking at the

history of aid to parochial education in Ohio, one state which

has experienced more than its share of difficulty in this area.

The Ohio legislature is subject to massive political pres-

sure to provide vast amounts of financial aid to the paro-

chial schools."° When acts are passed, they are couched in

secular terms, but usually form is placed far above sub-

stance.””

Each legislative attempt to appropriate aid to sectar-

ian schools has been met with a court challenge. See,

Wolman v. Essex, 417 F. Supp. 1113 (8.D. Ohio 1976), prob.

juris. noted, 45 U.S.L.W. 3463 (Jan. 10, 1977) (No. 76-

496); Wolman vy. Essex, No. CA 73-292 (S.D. Ohio 1973),

vacated, 421 U.S. 982 (1975); Kosydar v. Wolman, 353 F.

Supp. 744 (S.D. Ohio 1972), aff'd sub nom. Grit v. Wolman,

413 U.S. 901 (1974); Wolman v. Essex, 342 F. Supp. 399

(S.D. Ohio 1972), aff'd 409 U.S. 808 (1972) (hereinafter

cited as “Wolman I”). And each successful court challenge

has occasioned a new and more vigorous attempt by the

Ohio Legislature to provide massive aid to the Ohio paro-

chial schools.

“The case at bar, for example, involves an appropriation of

over 88 million dollars. Cf., Meck v. Pittenger, 421 U.S. at 365

n.15, where Mr. Justice Stewart points out that Pennsylvania

appropriated $16,660,000 in 1972-73 for supplying just instruc-

tional materials and equipment to the state’s parochial schools.

* The plans vary in degree of originality and have led Mr.

Justice Brennan to write that “.. . it should be observed that

sophisticated attempts to avoid the Constitution are just as invalid

as simple minded ones.” Meek, 421 U.S. at 381.

25

The first such attempt to skirt the Constitution came in re-

sponse to Lemon v. Kurtzman, 403 U.S. 662 (1971), when

the legislature passed and the Governor signed a plan for

tuition reimbursement. On the very day that the act be-

came law, Wolman I was filed and, on April 17, 1972, a three

judge court ruled that the plan was unconstitutional.

Little over two months later, the Ohio General Assembly

passed another bill. This time, a tax credit for parents of

students enrolled in private schools was the means to at-

tempt to circumvent this Court’s opinions. Strikingly, the

amount of money set aside to fund the program was al-

most the identical amount appropriated prior to, and which

was in issue in, Wolman I.

Moreover, on the day the bill was passed, but before it

was signed into law by the Governor, a suit was filed in state

court by the State of Ohio* seeking a declaratory judgment

to clarify the constitutionality of the Act. Upon filing, state

officials boasted publicly that they had beat the opponents

on this one. Defendants in that suit were persons who had

previously challenged the constitutionality of aid to paro-

chial schools." The defendants subsequently removed the

ease to federal Court where the Act was declared illegal.”

*° Actually the case was brought in the name of the Tax Com-

missioner.

*1 In addition, parents of nonpublic school children were joined

as defendants but were realigned as parties plaintiff by the United

States District Court. Kosydar v. Wolman, 353 F. Supp. 744, 749,

749 n.2 (S.D. Ohio 1972), aff'd sub nom. Grit v. Wolman, 413

U.S. 901 (1974).

2 The district court held in a per curiam opinion that the legis-

lature had indeed eliminated the unconstitutional direct grants in-

volved in Wolman I. However, the tax credits substituted for the

direet grants accrued to the same sectarian group as before and

the ploy was recognized by the Court. Id.

26

It takes little imagination, however, to suggest that it

was divisive in the extreme to have proponents and op-

ponents of parochial aid quarreling in the courts at the

instigation of the State.

During the summer of 1973, the Ohio General Assembly

again became the arena for the antagonists. The General

Assembly appropriated 81.4 million dollars under an “aux-

iliary services” plan. This plan led to the filing of Wol-

man III. Wolman v. Essex, CA 73-292 (S.D. Ohio 1973),

vacated, 421 U.S. 982 (1975). This was the third time in

as many years that the Ohio legislature had appropriated

the same approximate amount of money for aid to privately

maintained religious primary and secondary schools. Again,

only the terms had been changed—form still taking preced-

ence over substance.

The District Court ruled in favor of the appropriation,

reasoning that the materials and services were not religious

in nature and, therefore, in line with Allen, could be pro-

vided to the parochial schools. Following Meek, Wolman

III was vacated and remanded for reconsideration. Id.

When it became obvious to all that Meek would be ap-

plicable to the auxiliary services program, the legislature

changed the form, but still not the substance, of the legisla-

tion and, for the fourth time, appropriated the same money.

It is this Act, signed into law just prior to the beginning

of the 1975-76 school year, that is the subject of the cur-

rent litigation.

This short history demonstrates the complicated struggle

to provide aid to parochial schools in almost apparent

contravention of the First Amendment. The Ohio legisla-

ture, bowing to intensive lobbying, has attempted time and

27

again to thread the needle between Allen and the various

other standards established by the Courts. In Ohio,

Nyquist, Lemon and Meek have only intensified the serious

and, sometimes bitter, dispute over aiding schools main-

tained by religious groups. Rather than ending religious

divisiveness, the adoption of each new test and each at-

tempt to distinguish Allen has brought new litigation and

increased religious-political strife. We believe that adop-

tion by the Court of the test set forth below will eliminate

the need for this perpetual litigation and halt the religious-

political strife which such protracted litigation breeds.

IV.

The Court Should Reverse Allen and Adopt More

Concrete Standards.

As we have amply demonstrated in the first three sec-

tions of this brief, Allen has not served the First Amend-

ment well. In fact, Justice Rutledge’s words in his dis-

sent in Everson, after quoting Thomas Jefferson’s Bill

for Establishing Religious Freedom, ring truer today than

when written:

I cannot believe that the great author of those words,

or the men who made them law, could have joined in

this decision. Neither so high nor so impregnable today

as yesterday is the wall raised between church and state

by Virginia’s great statute of religious freedom and the

First Amendment, now made applicable to all the

states by the Fourteenth. New Jersey’s statute sus-

tained is the first, if indeed it is not the second breach

to be made by this Court’s action. That a third, and

28

a fourth, and still others will be attempted, we may

be sure. For just as Cochran v. Louisiana State Board

of Education, 281 U.S. 370, has opened the way by

oblique ruling for this decision, so will the two make

wider the breach for a third. Thus with time the most

solid freedom steadily gives way before continuing

corrosive decision.

330 U.S. at 29 (emphasis added).

Yet, amici believe that Justice Rutledge overstated the

case in Everson. For, if properly applied, Everson can be

a wall which is as impregnable as the First Amendment re-

quires. Of course, as has been suggested throughout this

brief, a proper application of Everson to this case neces-

sitates the overruling of Allen. We would also propose

that several principles from the majority opinion of Mr.

Justice Black in Everson are the benchmarks of a valid

employment of the decision.

1) The Court is concerned with substance, not form.

Everson v. Board of Education of Ewing Township, 330

U.S. 1, 15 (1946). This proposition was emphasized in

language on which the Court was unanimous:

No tax in any amount, large or small, can be levied

to support any religious activities or institutions,

whatever they may be called, or whatever form they

may adopt to teach or practice religion. ...

330 U.S. at 15-16 (emphasis added) ; accord, 330 U.S. at 33

(Rutledge, J., dissenting).

2) The Court felt that the facts in the case approached

the “verge” of the restraints of the establishment clause,

29

id. at 15, and certainly did not intend the doctrine to be

extended beyond its facts.

3) The Court felt that the benefit to the religious insti-

tution was a mere by-product of unintended aid. Surely the

policeman on the beat, to which the Court analogized, has

no direct intention of aiding religious institutions as he

performs his duties. 330 U.S. at 25 (Jackson, J., dissent-

ing). The legislation, according to the Court, “does no

more than provide a general program to help parents get

their children, regardless of their religion, safely and ex-

peditiously to and from accredited schools.” Id. at 18.

4) The Court in upholding the action as general welfare

legislation and in analogizing the benefits conferred thereby

to those bestowed by virtue of police and fire services, could

never have intended that the case be extended to the loan

of school books to students of sectarian schools. The utter

outrage expressed by Justice Black in his dissent in Board

of Education v. Allen, swpra, makes this obvious.

5) The case involved aid which did not cross the thresh-

old and invade the sanctuary. And, while this fact was

not pronounced by the Court, it is apparent that it is the

fulerum on which the opinion stands. Compare Everson,

supra, with Allen, 392 U.S. 236, 251 (1968) (Black, J., dis-

senting).

From this analysis of the Court’s decision in Everson,

we believe that a two part test can be abstracted as follows:

Aid will be allowed if either:

(1) it confers a benefit which is a by-product of un-

intended aid, i.e., fire and police protection (Civil services

such as the fire department are not established with the

intention of aiding the parochial schools) ; or

30

(2) (i) the aid does not, either directly or indirectly,

cross the threshold of the religious institution, and (ii) the

student is the sole beneficiary of the aid. Under the sec-

ond test, the bussing allowed in Everson qualifies; yet the

textbook grants or loans ratified in Allen must fall. In ad-

dition, off-campus medical, dental and other social services

will survive challenge.

We presume, however, that the mobile classroom or office

parked at the curb near the parochial school, while tech-

nically off school property, is across the forbidden

threshold. Amici arrive at this conclusion since any test

that the Court uses must never permit form to govern over

substance.

It is respectfully suggested that the above test will sup-

port, and is reconcilable with, every primary-secondary pa-

rochial school case decided by this Court except Allen and

the textbook holding portion of Meek. Textbooks are an

inseparable part of the primary educational functions of

parochial schools and are inextricably intertwined with their

religious mission. The textbook programs should have been

invalidated, if not in Allen, then, at least, in Meek. This

may be the last opportunity for the Court to take “the

bolder actions of overruling Board of Education v. Allen

and striking the textbook program in Meek.” 54 N. Car. L.

Rev. 216, 224 (1976). This incisive step “would more clearly

establish the lines of state neutrality without requiring the

sacrifice of consistency,” id., and resurrect the “wall of

separation” that Mr. Justice Black forged when he au-

thorized Everson.

31

CONCLUSION

Wherefore, amici respectfully ask this Court to overrule

Allen and insure that the “establishment of religion” clause

of the First Amendment still means at least this:

“Neither a state nor the Federal Government can set up

a church. Neither can pass laws which aid one religion,

aid all religions, or prefer one religion over another

... No tax in any amount, large or small, can be levied

to support any religious activities or institutions, what-

ever they may be called, or whatever form they may

adopt to teach or practice religion. ...”

330 U.S. at 15-16.

Respectfully submitted,

Leonarp J. ScHWARTz

Anprew M. FisHMan

Scuwartz & FisHMAN

150 E. Mound Street

Columbus, Ohio 43215

(614) 221-2600

Attorneys for Amici Curiae

Puitre Dunson

145 North High Street

Columbus, Ohio 43215

(614) 228-4859

of Counsel.