Amicus Curiae Brief — Committee for Public Ed. & Religious Liberty v. Nyquist

In Tue

Supreme Court of the United States

: Ocroser Term, 1972

No. 72-694

~

Commarres ror Pusrtic Epucation anp REicious Liseaty,

ET aL., Appellants

— against —

Ewarp B. Nyquist, er at., Appellees

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF NEW YORK

Barer or tHe Barrist Jom

Commarrzz ow Pusiic Arrams

as Amicus Curmz

JOSEPH B. FRIEDMAN

1028 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorney for the Baptist Joint

Committee on Public Affairs

As Amicus Curiae

LUCAS, SELDEN, FRIEDMAN & MANN

1028 Connecticut Avenue, N.W.

Washington, D.C. 20036

Of Counsel

Interest of the Amicus Curiae

Statute Involved

Questions Presented

Statement of the Case

Summary of Argument

Argument

Conclusion

CITATIONS

CASES:

Anderson v. Laird, 466 F. 2d 288 (1972)

Board of Education v. Allen, 392 U.S. 286 (1968)

_ Committee for Public Education and Religious Liberty v.

Nyquist, 72 Civ. 2286 DCSDNY

(October 2, 1972) ............ 2, 8, 4, 6, 10, 18, 18, 20, 21

DiCenso v. Robinson, 408 U.S. 602 (1971) 15

Engel v. Vitale, 870 U.S. 421 (1962) 5, 18

Essex v. Wolman, 409 U.S. 808

(1972) 6, 10, 11, 12, 18, 14, 15, 16

Everson v. Board of Education, 330 U.S. 1 (1947) _. 12, 18

Kosydar v. Wolman, —— F. 24 —— (S.D. Ohio, Decem-

ber 29, 1972) 9, 14, 17, 19

Lemon v. Kurtzman, 408 U.S. 602 (1971) .... 18, 15, 16, 19

School District of Abington Township v. Schempp, 374

U.S. 208 (1968) 5, 7, 10, 12, 18

Walz v. Tax Commission, 397 U.S. 664 (1970) ..... 12, 16

Page

UNITED STATES CONSTITUTION:

First Amendment ...... 2, 8, 4, 5, 9, 10, 12, 16, 18, 19, 20

Fourteenth Amendment 2,3

STATUTE:

Chapter 414, Laws of New York 1972 ....... 2, 8, 4, 5, 7, 8, 9, 10,

11, 12, 18, 14, 16, 17, 18, 19, 20, 21

MISCELLANEOUS:

Jefferson, Thomas, Virginia Statute of Religious Liberty,

1786 42

O’Toole, Christopher, “Why Catholic Schools?,” National

Catholic Register, August 6, 1972, p. 7 6

Williams, Roger, The Bloudy Tenent of Persecution,

1644 19

In THE

Supreme Court of the United States

Octoser Term, 1972

No. 72-694

,

Commrrrer ror Pusiic Epucation anp Reticious Liserty,

ET AL., Appellants

— against —

Ewarp B. Nyquist, et au., Appellees

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF NEW YORK

Brier or THE Baprist Jomst

Committee on Pusiic AFFamrs

as Amicus CurIAE

re

INTEREST OF THE AMICUS CURIAE

The Baptist Joint Committee on Public Affairs con-

sists of representatives elected by each of eight cooperat-

ing Baptist conventions in the United States: the Ameri-

ean Baptist Churches in the U.S.A., the Baptist General

(1)

2

Conference, the National Baptist Convention of America,

the National Baptist Convention, U.S.A., Inc., the North

American Baptist General Conference, the Progressive

National Baptist Convention, Inc., the Seventh Day Bap-

tist General Conference, and the Southern Baptist Con-

vention. These Baptist groups have some 23 million

members who evidence a direct interest in church-state

relations. The Joint Committee has as one of its mandates

the obligation to respond “. . . whenever Baptist principles

are involved in, or are jeopardized through, governmental

action. ...” Among Baptists, religious liberty is a funda-

mental and sacred principle. Religious liberty is also a

fundamental legal right protected by the First and Four-

teenth Amendments to the Constitution of the United

States. It is the opinion of the Baptist Joint Committee

on Public Affairs that the principle of religious liberty is

jeopardized by the decision of the United States District

Court for the Southern District of New York, dated

October 2, 1972, which is on appeal in this case.

STATUTE INVOLVED

The statute involved in the case at bar is Chapter 414

of the New York Laws of 1972.

QUESTIONS PRESENTED

This amicus responds only to the technical question:

Did the United States District Court for the Southern

District of New York err in holding that Sections 3, 4

and 5 of Chapter 414 of New York Laws, 1972 do not

violate the Establishment Clause of the First Amend-

ment of the United States Constitution? Less technically

3

the question may be stated: Does the Establishment

Clause of the First Amendment to the United States Con-

stitution, made applicable to the states by the Fourteenth

Amendment, prohibit the state of New York from grant-

ing “ ... tax credit for tuition paid by parents to non-

public schools. . . .” (majority opinion Committee for

Public Education and Religious Liberty, et al., v. Nyquist,

et al., 72 Crv. 2286 DCSDNY, October 2, 1972 here on

appeal) on the elementary and secondary level which are

church-controlled and church-operated?

STATEMENT OF THE CASE

Chapter 414 of New York Laws, 1972 is the fourth of a

series of laws passed by the state legislature over the past

two years which have been challenged in the courts as

violative of the Establishment Clause of the First Amend-

ment to the Constitution of the United States.

Section 1 of Chapter 414 provided public funds to

maintain and repair nonpublic elementary and secondary

schools. Section 2 of Chapter 414 authorized a tuition reim-

bursement to parents of children enrolled in nonpublic

elementary and secondary schools if those parents had a

New York taxable income of under five thousand dollars

per year. These two Sections were unanimously declared

violative of the Establishment Clause in the case here on

appeal.

Sections 6-10 deal with aspects of aid to public educa-

tion and are not in controversy in the pending case.

Section 11 is the severability clause which is in contro-

versy in this case. However, this raises a technical legal

question to which this amicus does not choose to respond.

4

The United States District Court for the Southern

District of New York, in the case here on appeal, on

October 2, 1972 held in a 2-1 decision that Sections 3, 4

and 5 of Chapter 414 are not violative of the Establish-

ment Clause.

Sections 3, 4 and 5 provide that an individual shall be

entitled to subtract, for state income tax purposes, from

his federal adjusted gross income an amount shown in a

table ‘ for his New York adjusted gross income, multiplied

by the number of his dependents, not exceeding three,

attending a nonprofit nonpublic school on a full time basis,

provided that he has paid at least fifty dollars in tuition

for each such dependent. This process is titled in the

New York tax law as amended, “Modification for non-

public school tuition” [§612(j)]. It is this progressive

tax credit and the rationale which underlies it which has

been challenged under the Establishment Clause in the

case now at bar.

1

If Adjusted Income Estimated Net Benefit to Family

Gross Exclusion One Two Three

Income is Per Pupilis child children ormore

Less than $9,000 $1,000 $50.00 $100.00 $150.00

$9,000 — 10,999 850 42.50 85.00 127.50

11,000 — 12,999 700 42.00 84.00 126.00

13,000 — 14,999 550 88.50 77.00 115.50

15,000 — 16,999 400 82.00 64.00 96.00

17,000 — 18,999 250 22.50 yi 45.00 67.50

19,000 — 20,999 150 15.00 * 30.00 45.00

21,000 — 22,999 125 13.75 27.50 41.25

23,000 — 24,999 100 12.00 24.00 36.00

25,000 and over 0 - @ 0 0

5

SUMMARY OF ARGUMENT

The argument below may briefly be summarized as

follows: s

1, Sections 3, 4 and 5 of Chapter 414 of New York

Laws, 1972 reflect a legislative purpose directed at pro-

viding public aid to religious parochial schools and, there-

fore, are inconsistent with the “primary purpose” test

established by this Court.

2. The Establishment Clause requires governmental

neutrality toward religion. Rather than achieving neu-

trality, the primary effect of Sections 3, 4 and 5 of

Chapter 414 is to grant public aid to sectarian religion

and its institutions.

3. Sections 3, 4 and 5 of Chapter 414 do not set up

sufficient administrative controls to guarantee that the aid

provided is used for secular purposes. Further, the sec-

tions excessively entangle government and religion

politically.

4. The tax credit provided for in Sections 3, 4 and 5 of

Chapter 414 and the religious character of the class of

schools to which they are applicable constitute an uncon-

stitutional public support by the government of the teach-

ing of religion.

5. Sections 3, 4 and 5 of Chapter 414 offend the Estab-

lishment Clause by creating a form of compulsory religion.

ARGUMENT

Religious groups operate and control elementary and

secondary schools—usually on a financially sacrificial

basis—for religious reasons. As a result of Engel v.

Vitale, 370 U.S. 421 (1962), and School District of Abing-

6

ton Township v. Schempp, 374 U.S. 203 (1963), a number of

Protestant schools have been established so that parents

_ might provide an education for their children which em-

bodies prayer and Bible reading as an integral part of the

school day. Long before these two decisions other church-

operated and church-controlled elementary and secondary

schools existed—and they continue to exist—in order to

perpetuate a religious belief and to provide an educational

milieu of which religion is an integral part.

In an article, “Why Catholic Schools?,” Father Chris-

topher O’Toole, C.S.C., stated:

The purpose of the parochial school is to permeate

with the Faith and the spirit of the Gospels the total

educative process. In a parochial school the teaching

of religion, for example, is not simply just another

subject to be learned and which is not taught in the

public schools. No, the entire curriculum is to move

forward in an atmosphere of faith in order to produce

a pupil who knows, at least in an elementary way,

how to relate all knowledge to its ultimate source—

God himself. National Catholic Register, August 6,

1972.

The basic purpose of denominational education is

to foster and maintain the teachings of a denomina-

tional religion. The religious aspect of the curricu-

lum must be the principal and dominant reason for

the existence of such schools. Essex v. Wolman, 409

U.S. 808 (1972).

The District Court for the Southern District of New

York in its opinion on the case now at bar stated:

In the case at bar, we are dealing largely with the

same parochial school system that was before this

7

Court in Committee for Public Education and Reli-

gious Liberty v. Levitt and Nyquist, 342 F. Supp. 439

(S. D. N. Y. April 27, 1972). The answers to inter-

rogatories made there established that New York

State construed as permissible beneficiaries schools

which (a) impose religious restrictions on admis-

sons; (b) require attendance of pupils at religious

activities’; (c) require obedience by students to the

doctrines and dogmas of a particular fai ; (d) re-

quire pupils to attend instruction in the or

doctrine of a particular faith; (e) are an integral

part of the religious mission of the church sponsoring

it; (f) have as a substantial purpose the inculcation

of religious values; (g) impose religious restrictions

on faculty appointments; and (h) impose religious

restrictions on what or how the faculty may teach.

(Answer to Interrogatory 7) There seems to be

no dispute that the statute here is also intended to

apply to such schools.

Because 93.5% of the students in nonpublic elementary

and secondary schools in New York are enrolled in

church-operated and church-controlled schools—more than

90% of which are Roman Catholic schools—it is sub-

mitted that the class created by Sections 3, 4 and 5 of

Chapter 414 of New York Laws, 1972 is overwhelmingly

religious in composition. Due to the limited nature of the

class created and to the predominance of one religious

group within that class, the principal beneficiary of this

statute must be organized religious activity.

1. Sections 3, 4 and 5 of Chapter 414 of New York Laws,

1972 do not reflect a primary secular legislative purpose and,

therefore, do not meet one of the tests of constitutionality

set by this Court in School District of Abington Township v.

_,ochempp, supra, at 222-223.

8

The difficulty of demonstrating that a legislative body

has other than a secular legislative purpose when it passes

acts dealing with education in church-operated and church-

controlled elementary and secondary schools when a de-

tailed, accurate record of all aspects of the legislative

process is not kept is granted. It is further granted that,

generally, legislative bodies, as coequal branches of gov-

ernment, have made their own determination on the issue

of constitutionality of their acts and that the courts

should usually assume prima facie constitutionality. How-

ever, Sections 3, 4 and 5 of Chapter 414 of New York

Laws, 1972 must be considered as an exception to the rule.

The New York legislature in Section 3 of Chapter 414

assumed the secular desirability of pluralism in education

and maintained that nonpublic elementary and secondary

schools perform a secular function by relieving the tax-

payers of the state of the burden of providing public

school education for those children enrolled therein

[§ 3(3)]. Despite these stated secular purposes the facts

in this particular case are such that one cannot logically

accept a primarily secular purpose in the legislature’s

action. :

Though the class of nonpublic elementary and secondary

schools is defined to include most of the nonprofit schools

in the state, the overwhelming preponderance of schools

included in the class has been shown to be chiarch-

operated and church-controlled. Only these - religious

schools were active in encouraging the legislature to enact

the contested legislation. They were most vocal in stat-

ing the essentiality of public financial aid*to their con-

tinued viable existence. It is highly unlikely that the

legislature would have considered a bill to grant financial

aid to nonpublic schools if the class of schools so aided

9

had not included the 93.5% of those schools which are

religious in their operation and control. It is doing the

New York legislature no injustice to infer logically from

the legislative records available that the main legislative

purpose of Sections 3, 4 and 5 of Chapter 414 was to aid

church-operated and church-controlled elementary and

secondary schools.

Even if a nonsecular legislative purpose is not in the

exact wording of Sections 3, 4 and 5 of Chapter 414, the

religious press of New York was not in doubt about legis-

lative intent. A reading of that press during the legisla-

tive action on Chapter 414 leaves no doubt that the legis-

lation was fostered by and intended to aid religiously

operated and controlled elementary and secondary schools.

It is a non sequitur to maintain that a secular legisla-

tive purpose is assured because public financial aid to

nonpublic schools relieves taxpayers of the financial burden

of providing public education to students now in nonpublic

schools. ;

The short answer to the argument that sectarian

schools benefit the general populace by reducing the

expenditures needed to support the public schools is

that our Constitution embodies values which override

considerations of mere cost efficiencies or school sav-

_ings. Kosydar v. Wolman, —— F.2d —— (S8.D. Ohio,

"December 29, 1972).

We agree with the court in Kosydar v. Wolman, id.,

that “. .. the Establishment Clause stands as a bar to aid

of Church schools, even though social pluralism may be

enhanced and tax dollars saved by virtue of these schools’

existence.” The New York legislature may have been

_ correct when it assumed that Sections 3, 4 and 5 would

_ help to achieve educational pluralism and, by giving some

10

public aid to nonpublic schools, would save taxpayers some

money. However, because the class of schools it estab-

lished to receive public aid is so decisively religious in

' character, because the total educational program of reli-

gious schools is permeated with the teaching of religion,

and because the type of aid provided is tied to tuition

actually paid to these schools, it cannot be assumed and we

cannot accept that the primary purpose of New York’s

legislature was secular in this act.

If individuals, for reasons of personal religious belief,

voluntarily undergo a financial handicap, foregoing

available public facilities by sending their children to

selected schools, the First Amendment stands as a bar

to their being reimbursed by the state for their

sacrifice. This principle is no less vital if, as a result

of such sacrifices, the state achieves cultural diversity

or derives economic benefit. Essex v. Wolman, supra.

2. Sections 3, 4 and 5 of Chapter 414 do not satisfy the

“primary effect” test also enunciated in Abington v. Schempp,

supra.

In his dissent on these three sections in the case now at

bar, Circuit Judge Hays compared them to Sections 1 and

2 of Chapter 414 which the three judge court unanimously

declared to be contrary to the Establishment Clause.

“The purpose and effect . . . are the same . . ., i.e., to sub-

___gidize religious training for children.” Committee for Pub-

lic Education and Religious Liberty, et al., v. Nyquist, et

al., supra |

a

Supporters of appellees’ position argue that Sections 3,

4 and 5 merely give a tax advantage to the parents of

children in nonpublic schools and that the parents may

spend the money they save in ‘taxes for whatever they

11

want. This, they assert, satisfies the “primary effect” test.

This position is entirely without merit.

The class of schools to which a taxpayer must pay

tuition in order to claim a tax credit is overwhelmingly

sectarian, the instruction in the sectarian schools is im-

‘ pregnated with sectarian religion, and the tax credit is

based on tuition already paid. Parents of children in

predominantly sectarian schools are rewarded by prefer-

ential tax treatment for the sole reason that they have

paid tuition to a suspect class of nonpublic institutions.

This can only have the primary effect of aiding religion.

To claim that indirect aid is not aid is specious reasoning

and is contrary to the holdings of this Court.

In Essex v. Wolman, supra, in dealing with an analogous

attempt to aid religious schools, the three judge District

Court for the Southern District of Ohio unanimously held

—and was affirmed by this Court (409 U.S. 808, 1972)—

that:

The state cannot claim it does not know what the

parents will do with their grants, for the expressed

intent of the statute is to “reimburse parents of non-

public school children for a portion of the financial

burden experienced by them” in sending their children

to parochial schools. Jt does not matter that the par-

ents are subsequently free to use the money received

for any purpose. The intent of the statute in provid-

ing the reimbursement must speak for itself. [em-

phasis added].

We submit that the effect of Section 3(5) of Chapter 414

which states:

5. The legislature hereby finds and determines that

similar modifications . .. should also be provided to

12

parents for tuition paid to nonpublic elementary and

“ secondary schools .. .

is identical to the effect of the reimbursement device pro-

scribed in Essex v. Wolman, supra.

“(T]t i is the use to which public funds are put” and

not to whom they are provided that is controlling. .

What may not be done directly may not Ss wae te.

directly lest the Establishment Clause becomes a

‘ mockery. Abington v. Schempp, supra, at 230 (Doug-

las, J., concurring).

It is correct that this Court did permit aid to parents

and students in Everson v. Board of Education, 330 US.

1 (1947) and Board of Education v. Allen, 392 U.S. 236

(1968), but in these cases the class of students was broad

and the aid provided—transportation and state-approved

textbooks—was ideologically neutral. In the case at bar

the opposite prevails. The class is predominantly sectar-

ian and the aid—tuition assistance—is not ideologically

neutral. The effect, therefore, is an affront to the Estab-

lishment Clause and cannot stand.

The prohibition against establishment of religion

cannot be circumvented by a subsidy, bonus, or reim-

bursement of expense to individuals for receiving

religious instruction and indoctrination. Everson,

supra, at 24 (Jackson, J., dissenting).

3. Sections 3, 4 and 5 of Chapter 414 engender excessive

entanglement of government and religion.

This Court enunciated the doctrine of, excessive en-

tanglement of government and religion in Walz v. Tax

Commission, 397 U.S. at 674 (1970), to set some standards

for constitutionally permissible church-state interactions

under the Establishment Clause. ‘The doctrine was elab-

13

orated in Lemon v. Kurteman, 403 U.S. 602 (1971), as was

the distinction between administrative and political en-

tanglement. Excessive administrative or political en-

tanglement were established as bases for a determina-

tion of unconstitutionality. By affirming Essex v. Wolman,

supra, this Court further delineated the doctrine.

In discussing Sections 3, 4 and 5 the majority in the

ease at bar stated:

In sum, we do not go behind the statements of the

New York Legislature, although it is manifest that,

regardless of the variety of secular arguments ad-

vanced to support the legislation, the prime legisla-

tive concern is to see that religious: parochial schools

do not go under for lack of financial support.

If it was the concern of the legislature in passing Sec-

tions 3, 4 and 5 that religious parochial schools not go

under for lack of financial support, it follows that the leg-

islature thought that the passing of this piece of legisla-

tion would provide, albeit indirectly, financial support to

“religious parochial schools” to keep them from going

_ under. Therefore, these Sections, by definition, provide

public financial aid to religious parochial schools. It must

be determined whether aid of this type results in excessive

administrative entanglement.

Essex v. Wolman, supra, stated that the criteria for

determining administrative entanglement as a result of

aid given to religious schools are: (1) the use to which

the aid is put, (2) the form in which the aid is provided,

(3) the person or institutions to which the aid is directed,

and (4) the extent to which the state must intervene to

determine that the aid is spent for constitutionally secular.

_ purposes.

14

We have demonstrated that public aid was provided to

religious schools (which overwhelmingly make up the class

created by the legislature) and was tied to tuition actually

paid to them.

Tuition forms the major part of a school’s general

fund and moneys derived from it can be used for any

purpose it deems legitimate. Such funds may be used

for the construction of a chapel as well as a gymnas-

ium; for the purchase of religious icons as well as

laboratory test tubes. Id.

The aid was given in the form of balloon “deductions”

which, when simple mathematics are applied, are revealed

as a system of thinly disguised tax credit for tuition

already paid to schools in this suspect class—declared

unconstitutional by a three judge court in Kosydar v.

Wolman, supra. The New York legislature provided that

- aid “to see that religious parochial schools do not go

under for lack of financial support” be given to those

schools indirectly through parents who paid tuition to

those schools. However, this Court has held that this type

of conduit for aid does not have a cleansing effect Essex

v. Wolman, supra _ and is not constitutionally permissible.

The first three tests for administrative entanglement —

clearly are not satisfactorily met by Sections 3, 4 and 5 of

Chapter 414.

On their face, Sections 3, 4 and 5 provide for less direct

state administrative intervention than previously invali-

dated attempts to aid religious schools have: However, if

financial aid is given either directly or indirectly for any

purpose, it is axiomatic that those who supply the aid and

those who receive it must be held accountable. Basic can-

nons of legality and responsibility are involved.

15

. It is this fourth prong of the test for excessive admin-

istrative entanglement which presents the legislatures with

a dilemma from which they will find it difficult to extricate

themselves either legally or logically. In Lemon v. Kutre-

man, supra, and DiCenso v. Robinson, 403 U.S. 602 (1971),

it was held that the administrative rules established were

such that the government was excessively entangled with

religion. Ohio’s legislature then passed a tuition reimburse-

ment act which is analogous to the act challenged in this

ease. In Ohio a portion of tuition paid to an almost

identical class of schools was returned to parents who had

ehildren enrolled in those schools. No restrictions were

set by the state to guarantee that the reimbursed tuition

money would be spent for non-religious purposes. This

lack of administrative control was held to be a defect by

a three judge court in Essex v. Wolman, supra, which was

affirmed by this Court:

The parent has voluntarily undertaken an obligation

to pay tuition to a non-public school and the school in

return has agreed to educate that child in an atmos-

phere oriented, if not dominated, by the teachings of a

specific religion. At the end of the transaction, the

parent has applied for and received reimbursement

from the State .. . solely and. specifically because he

has paid that sum to the denominational school. . . .

Since the parents im this scheme serve as mere con-

duits of public funds, the State retains a responsibil-

ity of insuring that the public moneys thus provided

and which retain their public character throughout

the transaction, are used for constitutionally permis-

sible ends and continue to be so used. [emphasis

added].

Thus, if aid to religious schools, while avoiding exces-

«

16

sive entanglement with state administrative supervision,

does not incorporate sufficient administrative controls to

insure that the aid is used for strictly secular purposes,

it is defective with reference to the Establishment Clause.

Sections 3, 4 and 5 of Chapter 414, we submit, are so

defective.

. «+ @ny general purpose aid, lacking non-entangling

restrictions on. use, constitutes an almost per se viola-

tion of the Establishment Clause. Jd., at fn. 20.

Sections 3, 4 and 5 fail to satisfy the established tests

for administrative entanglement, and the political en-

tanglement which this piece of legislation generates is an

additional fatal defect.

In a separate concurring opinion in Walz v. Tax Com-

mission, supra, Justice Harlan emphasized that the Court

must look closely at legislation challenged as giving rise

to excessive entanglement between government and reli-

gion to see if that legislation avoids the “risk of politi-

cizing religion” and “political fragmentation on religious

lines.” 397 U.S. at 695.

In Lemon v. Kurtzman, supra, the Court, in addressing

itself to the divisiveness of political entanglement, said

that though ordinarily

. . . political debate and division, however vigorous

or even partisan, are normal and healthy manifesta-

tions of our democratic system of government...

political division along religious lines was one of the

principal evils against which the’ First Amendment

was intended to protect... . The potential divisive-

ness of such conflict is a threat to the normal political

process.... To have States or communities divide on

the issues presented by state aid to parochial schools

17

would tend to confuse and obscure other issues of

great urgency. ... Here we are confronted with

successive and very likely permanent annual appro-

_ priations which benefit relatively few religious groups.

Political fragmentation and divisiveness on religious

lines is thus likely to be intensified. 403 U.S. at 622-

623.

Sections 3, 4 and 5 of Chapter 414 almost guarantee that

such political fragmentation and divisiveness on religious

lines will be intensified. The amounts of money allowed

to be deducted from gross income for New York tax pur-

poses are subject to annual review, If these sections gre

allowed to stand, the legal basis of constitutionality will

be established and, in response to demands on the political

system for increased aid, divisive religious confrontations

periodically will ensue. Because this open-ended type of

aid invites controversy and because religious belief in- —

volves emotions, legislation such as this will increase at a

geometrical rate the religious divisiveness already created

by the existence of the questioned legislative act.

As we have said, the class of schools aided by Sections

3, 4 and 5 is decisively sectarian. There is a direct rela-

tionship between the degree to which a class is sectarian

and the degree of entanglement that results. If a class

receiving public financial aid is decisively sectarian, then

it is essential that the element of entanglement be closely

scrutinized. Kosydar v. Wolman, supra. The statute

involved in the case at bar does not stand that scrutiny.

Inevitable political entanglement at an unconstitutional

level is manifest.

4. A special tax incentive or tax credit to reimburse parents

for tuition paid to a class of nonpublic elementary and sec-

schools which is overwhelmingly church-operated and

18

church-controlled is an unconstitutional financial support by

the government of the teaching of religion.

The business of religion is religion. The business of

religiously controlled and operated elementary and second-

ary schools has been shown to be the infusion of sectarian

religion into every facet of a student’s educational pro-

gram.

Cireuit Judge Hays, in his dissent against the three

judge court’s decision on Sections 3, 4 and 5 said:

The benefits of the tax exemption allowed by sec

tion 3 are of the same nature as those accorded under

the tuition reimbursement provisions of section 2.

There is no essential difference between a parent’s

receiving a $50 reimbursement for tuition paid to a

parochial school and his receiving a $50 benefit be-

cause he sends his child to a parochial school. In both

instances the money tmvolved represents a charge

made wpon the state for the purpose of religious edu

cation. [emphasis in last sentence added].

Since the benefits to parents under Sections 3, 4 and 5

are, in fact, charges made upon the state for the purpose

of religious education, they are an affront to the Establish-

ment Clause.

This Court ruled in Abington, supra, and Engel, supra,

that public schools supported by public funds may not

teach religion through either compulsory prayer or com-

pulsory Bible reading. The melding of public funds into

nonpublic schools makes for government support of the

teaching of religion in these schools. This Court has held

that government must neither aid nor inhibit religion and

that “[nJo tax in any amount, large or small, can be lev-

ied to support any religious activities or institutions, what-

ever they may be called, or whatever form they may adopt

to teach or practice religion.” Everson v. Board of Edu-

cation, swpra, at 15-16

The granting by a state to a taxpayer of the privilege of

deducting the face value of any contribution to a legally

recognized class of potential recipients is not in dispute in

this case. Instead Sections 3, 4 and 5 create essentially a

sectarian class and any tuition paid to a school in that

class is in anticipation of services to be received. There-

fore, we are not dealing here with contributions but with

the granting to taxpayers who send their children to

religious schools of a tax “deduction” of a substantial sum

of money which, in fact, has not been “contributed” and

logically cannot be considered a generous gift without an-

ticipation of personal gain. It is clear that these sections

do not provide for bona fide deductions but rather for a

tax credit to parents of children in religious schools.

Because tax credits have been held unconstitutional in

Kosydar v. Wolman, supra, and direct aid to religious ele-

mentary and secondary schools is proscribed in Lemon v.

Kutrzman, supra, under the entanglement doctrine, so then

this indirect attempt to achieve identical ends is unconsti-

tutional and proscribed. The New York legislature has

attempted, by indirection, to circumvent this Court’s pro-

scription against the use of public funds to support the

teaching of religion. Such legislative action is contrary to

the Establishment Clause.

5. Public financial aid to church-operated and church-con-

trolled elementary and secondary schools constitutes compul-

tory religion.

_-The principle of religious liberty antedates the Ameri-

ean republic and abhors compulsory religion. Roger Wil-

liams wrote: “Forced worship is a stinck [sic] in the

nostrils of God” (The Bloudy Tenent of Persecution) ; and

z

20

2

Thomas Jefferson wrote inthe Virginia Statute of Reli-

gious Liberty: “no man shall be compelled to frequent

or support any religious worship, place or ministry what-

soever, nor shall be enforced, restrained, molested, or bur-

thened in his body or goods, nor shall otherwise suffer on

account of his religious opinions or belief” (Sec. II). This

is a part of the philosophy bound up in the religion clauses

of the First Amendment.

In Anderson v. Laird, 466 F.2d 283 (1972), (cert. demed

by this Court), the United States Court of Appeals for the

District of Columbia held that compulsory chapel attend-

ance at the three federal military academies was compul-

sory religion and, therefore, repugnant to the religion

clauses of the First Amendment.

The majority which affirmed the constitutionality of

Sections 3, 4 and 5 of Chapter 414 in the District Court

for the Southern District of New York declared in the case

now at bar that these sections provided aid to “religious

parochial schools.” Those religious parochial schools

comprise 93.5% of the schools in the class created by this

legislative act. These schools teach sectarian religion

throughout their academic curriculum.

The aid to religious parochial schools comes from tax

credit for tuition already paid and constitutes funds which

are subject to state control. When public funds, which are

collected from all taxpayers regardless of religious belief

or lack of religious belief, are used to aid, either directly

or indirectly, elementary or secondary schools which teach

religion, all taxpayers are compelled to assist in the sup-

port of that teaching of religion. State-coerced financial

support of religion is one of the oldest and purest forms of

the establishment of religion and is clearly at odds with

the Establishment Clause of the First Amendment.

21

CONCLUSION

That portion of the decision of the District- Court for

the Southern District of New York dealing with Sections

3, 4 and 5 of Chapter 414 of New York Laws, 1972 should

be reversed.

Respectfully submitted,

JOSEPH B. PRIEDMAN

1028 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorney for the Baptist Joint

Committee on Public Affairs

As Amicus Curiae

LUCAS, SELDEN,.FRIEDMAN & MANN

1028 Connecticut Avenue, N.W.

Washington, D.C. 20036

Of Counsel

IN THE

| SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

‘NO. 72-694, COMMITTEE FOR PUBLIC EDUCATION AND

‘RELIGIOUS LIBERTY VS. NYQUIST

- 72-753, BRYDGES VS. COMMITTEE FOR PUBLIC EDU-

CATION AND RELIGIOUS LIBERTY

_ NO. 72-791, NYQUIST VS. COMMITTEE FOR PUBLIC EDU-

CATION AND RELIGIOUS LIBERTY

NO. 72-929, CHERRY VS. COMMITTEE FOR PUBLIC EDU-

CATION AND RELIGIOUS LIBERTY

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK

CONVENED PURSUANT TO TITLE 28,

SECTIONS 2281 AND 2283

- MOTION AND BRIEF OF AMICUS CURIAE

_ UNITED AMERICANS FOR PUBLIC SCHOOLS

sre Gout US.

FILED

HENRY C. CLAUSEN

234 Van Ness Avenue

San Francisco, California 94102

Attorney for Amicus Curiae

_apenerti )

Washington, 0.C. © THIEL PRESS « (202) 393.0625

;

.

i

i

z

(i)

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE BRIEF AS

I NN 5 56a S56 8A ak i ve a ere

TABLE OF AUTHORITIES

Earley v. Di Censo, 403 U.S. 602(1971)..............

ne: Gees Roend, 377 US. 218. 2... eS

Kosydar v. Wolman (United States District Court for

the Southern District of Ohio, Eastern Division,

decided Dec. 29, 1972) Supreme Court Title, Grit

et al. v. Wolman, number 72-1139-ATX ............

Lemon v. Kurtzman, 403 U.S. 602 Serer etre ee ek

Lemon v. Sloan, 340 F. oe, ee Le | eae

Tilton v. Richardson, 403 U.S. at 688 ...............

Wolman v. Essex, 342 F. Supp. 399, 41 L.W.

NN ek

Other Authorities:

Act for Establishing Religious Freedom, The (1785),

ON 6k 65h 6 A Cee eee cael wes

(ii)

Bill of Rights (1780), Massachusetts ....-------+++*°° 11

Bill of Rights (1777), New York ...---+--+--ss-erttt' 11

Charter of Rhode Island (1663) ...-----+++s-crt""" ll

Constitution, First Amendment .....------+-**"""" 11

Declaration of Rights and Liberties, The (1774), First

Continental Congress ...-----++serrrrsr ttt 11

Declaration of Rights (1776), Maryland ....-----++++ 11

Declaration of Rights (1776), Virginia ...----+-+++++° 11

Declaration of the Rights of Men, The (1772),

Adams, Somme og oc once ees ce nen ceneers 11

Feudal and Canonical Law (1768), Adams, TOM cwacess 11

Maryland Toleration Act o) peer eee 11

When Parochial Schools Close, Larson, Martin A. ....++->+ 11

IN THE

SUPREME COURT OF THE UNITED STATES

fj OCTOBER TERM, 1972

NO. 72-694, COMMITTEE FOR PUBLIC EDUCATION AND

RELIGIOUS LIBERTY VS. NYQUIST

NO. 72-753, BRYDGES VS. COMMITTEE FOR PUBLIC EDU-

CATION AND RELIGIOUS LIBERTY

NO. 72-791, NYQUIST VS. COMMITTEE FOR PUBLIC EDU-

CATION AND RELIGIOUS LIBERTY

NO. 72-929, CHERRY VS. COMMITTEE FOR PUBLIC EDU-

CATION AND RELIGIOUS LIBERTY

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK

CONVENED PURSUANT TO TITLE 28,

SECTIONS 2281 AND 2283

MOTION FOR LEAVE TO FILE BRIEF

AS AMICUS CURIAE

United Americans for Public Schools respectfully

moves this Court for leave to file its annexed brief as

amicus curiae.

Applicant is a California nonprofit corporation,

formed in 1953 and operating since then to investigate,

discuss and study governmental affairs in the United

States of America and in the State of California, with

special reference to the public schools and the Constitu-

tions of the United States and of the State of California,

and to disseminate to its members and to the public,

2

related, objective and educational facts and findings to

preserve the purposes of public schools and of the said

constitutions and to foster adherence thereto and support

thereof.

Applicant has an interest in this case and is vitally

concerned in the outcome in that it now has pending in

the United States District Court for the Northern District

of California a complaint attacking laws that the Cali-

fornia Legislature enacted January 17, 1973 and in which

the basic question involved is similar to that presented for

decision in the instant cases. It is felt there are state

constitutional, as well as federal constitutional points

involved, and this Court has held that where the Federal

Court has jurisdiction it is authorized to determine all the

questions in the case, local as well as federal, and the

court in this respect has considered state constitutional

standards in the interpretation of the Constitution.

While applicant’s case is not now before the Court, it

might well be in the near future. It is believed that the

arguments applicant makes in the annexed brief will be

involved.

Amicus Curiae has applied for consent of the parties

herein within the time prescribed for filing briefs but

responses have not yet been received. Counsel for amicus

curiae is a resident of California and will not be able to

review all the briefs filed to ascertain the complete

specifics of need for additional commentary. But having

reviewed some of said briefs, it appears there now is such

need and that the points raised in the annexed brief will

present additional points not yet covered and will be

helpful to the Court. A three-judge court in the District

Court of the United States for the Southern District of

Ohio, Eastern Division, rendered or December 29, 1972

_ eee

3

its opinion holding unconstitutional legislation similar to

that involved in the present case. It is felt the Court

should have the benefit of analysis of said opinion by

amicus. The special considerations will appear more fully

herein.

It is therefore respectfully requested on the grounds

above that this application for leave to file a brief as

amicus curiae be granted.

Respectfully submitted

UNITED AMERICANS FOR PUBLIC SCHOOLS

By

Attorney for Movant.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

NO. 72-694, COMMITTEE FOR PUBLIC EDUCATION AND

RELIGIOUS LIBERTY VS. NYQUIST

NO. 72-753,, BRYDGES VS. COMMITTEE FOR PUBLIC EDU-

CATION AND RELIGIOUS LIBERTY

NO. 72-791, NYQUIST VS. COMMITTEE FOR PUBLIC EDU-

CATION AND RELIGIOUS LIBERTY

NO. 72-929, CHERRY VS. COMMITTEE FOR PUBLIC EDU-

CATION AND RELIGIOUS LIBERTY

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK

CONVENED PURSUANT TO TITLE 28,

SECTIONS 2281 AND 2283

BRIEF

INTEREST OF THE AMICUS CURIAE

United Americans for Public Schools, a California

nonprofit corporation, and its members, citizens and

taxpayers of the United States and of the State of

California, are vitally interested, both personally and

economically, in the issues of the instant case because (1)

of its concern generally with preserving the purposes of

public schools and of our traditional Constitutional

Doctrine of Separation of Church and State and because

(2) Amicus has filed its complaint in the Northern United

States District Court of California to enjoin execution of

6

California Legislation similar to that which appellants

attack, and said suit involves issues similar to those in the

instant case.

STATUTES INVOLVED

The statutory provisions involved in these cases appear

in Appellant’s Jurisdictional Statement which amicus by

reference incorporates herein.

QUESTION PRESENTED BY THIS BRIEF

To avoid redundancy in briefing, Amicus poses the

following additional single question:

(a) Whether this court should adopt the reasoning and

analysis set forth in the three-judge opinion of the United

States District Court for the Southern District of Ohio,

Eastern Division, Civil Actions Numbers 72-212 and

72-222, decided December 29, 1972, subsequent to the

decisions below, titled Robert J. Kosydar, Tax Commis-

sioner of Ohio, et al., Plaintiffs, v. Benson A. Wolman, et

al., Defendants, Benson A. Wolman, et al., Plaintiffs, v.

Robert J. Kosydar, Tax Commissioner of Ohio, et al.,

Defendants.

Appellants therein have appealed to this Court (titled

herein James Grit, et al., Appellants vs. Benson A.

Wolman, et al., and numbered herein 72-1139-ATX). A

copy of the opinion is annexed as Appendix B to

Appellants Jurisdictional Statement. Application for stay

of injunction was made and denied January 22, 1973.

Motion to expedite and to advance oral argument was

made and denied February 26, 1973., «

7

STATEMENT OF THE CASE

Reference is made to the foregoing motion and to

Appellant’s Statement.

ARGUMENT

A brief preliminary review of some authorities may be

helpful. In June 1971 this Court struck down laws of

Pennsylvania and Rhode Island that would have diverted

public funds to parochial schools and thus would have

entangled excessively the state and churches, and would

have advanced the indoctrination of religion in violation

of the First Amendment to our Constitution. The

Pennsylvania plan in Lemon v. Kurtzman, 403 U.S. 602

(1971), would have given public funds to church schools

under the guise of “purchasing secular services,” i.e.,

paying the parochial schools to educate children in

subjects supposedly without religious significance. The

Rhode Island device in Earley v. Di Censo, 403 US. 602

(1971), would have given to teachers of secular subjects

in church schools state funds as supplementary salaries.

In October 1972 this Court struck down as unconstitu-

tional an Ohio Plan in Wolman v. Essex, 342 F. Supp.

399, affirmed __—-U.S. __, 41 L.W. 3167 (1972), for

reimbursing from public funds parents of parochial and

private school children for tuition paid. The Supreme

Court cited its earlier decisions and upheld a ruling of the

* Ohio special three-judge federal panel holding the pro-

gram violated the Constitution as an “establishment of

religion.” A Pennsylvania three-judge district court in

Lemon vy. Sloan, 340 F. Supp. 1356 (1972) also held such

a plan unconstitutional and said this in part:

“[We] do not perceive any constitutional signif-

icance in the fact that payments are made in the