Evening star., 1961-04-21
Law on School Aid
Your correspondent,

Jul CUII IICSPO1luCAlL, y.
Harry Byrne, overlooks a sig
nificant word in his anal
ysis of the First Amendment.
1t is the word respecting"
He does not even mention
it.
In writing the amendment
the founding fathers recog-
nized that it would be i'm
possible to cite every act of
Congress which was to be
prescribed as pointing to-
ward an establishment of re-
ligion. Hence they barred
any law respecting an estab-
liShment." That is, they
barred any law pertaining to,
pointing to, or relating to
an establishment. Congress
was not to move even vaguely
in this direction. 1t was to
keep out Of the realm Of
religion.
All the current proposals
to aid church schools come
under the ban of the First
Amendment for they would
obviously be laws respect
ing an establishment of re-
ligion." What, indeed. is the
difference between sIbsidiz-
ing q church and q school
which exists to promote that
church? Mr.. Byrne feels that
it Is all right to subsidiZe
such institutions provided
only that one denomination
does not get all the money.
That Is, he thinks that a
homogeneous marriage Of
church and state would be
wrong but that q polygam-
GUS marriage would be all
right. The founding fathers
intended the First Amend
ment to prohibit both.
All acknowledge that con-
st;tutionality of measures
providing public assistance
for church schools would be
highly doubtful. There is q
way to resolve this doubt.
Let the proponents of such
aid seek an amendment to
the Federal Constitution
which would settle the mat
ter. This. rather than de-
viousness and evasion. is the
honorable way to proceed.
Why is it that a constitu-
tional amendment has never
so much as been mentioned
by advocates Of Federal aid
to church schools?
C. Stanley Lowell
-
J. Harry Byrne states that
I'VE have failed to find any
United States Supreme Court
decision specifically inter
preting the constitutional
words establishment of re-
ligion,' True. some Of the
decisions contain obiter dicta
thereon, but dicta are far
from controlling"
This is not true. The
Supreme Court decision in
EverSon vs.. the Board of
Education contains an in
depreciation of this phrase.
This Interpretation was
quoted with approval in Nc
Collum VS.. the Board Of Ed
ucation. In these two de-
cisions the Court said:
The establishment of re-
ligion' clause OF the First
Amendment means at least
this: Neither a State nor the
Federal Government can set
up a church. Neither can
pass laws which aid one re-
ligion, aid all religions. or
prefer one religion over an
other. No tax in any
amount, large or small, can
be levied to support any ac-
tivities or institutions. what
ever they may be called, or
whatever form they may
adopt to teach or practice
religion. Neither a State nor
the Federal Government can,
openly or secretly, participate
in the affairs of any re-
ligiouS organizations or
groups and vice versa. In
the words Of jefferson, the
clause against establishment
of religions by law was in
tended to erect a wah of sep
aration between church and
state"
This is not an obiter die
tum. An obiter dictum is
a statement made by the
way, and not germane to the
issue at hand. In the Ever
son and McCollum cases the
meaning OF the words was
very definitely at issue, for
the Court was being asked
to determine whether certain
State laws ran afoul Of them.
In EVerson it was decided
that the law in question did
not, in McCollum it was de-
cided that 1t did.
Joseph Ryshpan