Warren E. Burger: We'll hear arguments next in number 153, Tilton and Others against Richardson. Mr. Pfeffer, you may proceed whenever you're ready.
Leo Pfeffer: Mr. Chief Justice and may it please the Court. This is a tax payer suit --
Warren E. Burger: I should comment to you, as we indicated before we opened this morning, Mr. Justice Marshall is unavoidably absent due to an illness and he will make his own decision as to the participation and if he does then participate, it will be on the basis of all of the usual papers and on the tape recording of the argument, of course.
Leo Pfeffer: Yes, Mr. Chief Justice. Counsel said--
Warren E. Burger: I understand that's entirely agreeable.
Leo Pfeffer: Yes. This is a tax payer suit challenging both the interpretation and, secondarily, the constitutionality of Title 1 of the Higher Education Facilities Act of 1963. The statute provides for grounds of federal funds to construct what is called academic facilities at undergraduate educational institutions at the post secondary level and, as far as it's relevant to this case, it defines academic facilities among others, as those which -- to exclude those used for sectarian instruction or religious worship or any part of which -- the school which is part of it, the school or department of divinity. Other than that, it does not contain any expressed exclusion on predicated part of the nature of the beneficiary institution. The questions as presented by this appeal, as we see it, first, is not, although that appears to be housing both, all appellees seek to frame it is not whether church-related colleges are disqualified from participating in the benefits of the statute. If it were, if that was the question, we would not be here. We concede and have never contended to the contrary that the mere fact that a college is church-related does not either statutorily or constitutionally disqualify it from receiving federal funds. The question, as we see it, is whether a sectarian institution is disqualified both statutorily and constitutionally. Now, we've defined in our complaint, in our briefs what we mean by sectarian and, specifically, we call it one in which the propagation, teaching, or practice of religion is a meaningful and major part of its existence.
Potter Stewart: Where is that written down in your brief?
Leo Pfeffer: This is-- well, the latest is in reply brief-- I'm reading from reply brief, page 3.
Potter Stewart: All right.
Leo Pfeffer: It's in our original brief as well, but I'm reading now from reply brief. It's in the original brief as well. The propagation in teaching, or practice of religion is a meaningful and major part of its existence. This case was brought before this Court decided Walz against Tax Commission of New York. Had this case been brought after that decision, perhaps it would've defined sectarian in terms of the Court's decision in Walz as one whose dominant policy is to assure future adherence to a particular faith by having control of their total education-- by having the -- to a particular faith by having control of their total education at an early age. That's in the Walz case.
Potter Stewart: What do you mean by the word “perhaps”? Are you suggesting that the two definitions are synonymous?
Leo Pfeffer: Basically--
Potter Stewart: One is preferable to the other?
Leo Pfeffer: No.
Potter Stewart: Or that they're different--
Leo Pfeffer: Well, they're preferable in the sense that it's wiser to use the language of a recent decision of the Courts than to use your own language.
Potter Stewart: Yes.
Leo Pfeffer: But, basically, I don't consider any substantial difference between them.
Potter Stewart: They're basically synonymous.
Leo Pfeffer: They're basically synonymous. Now--
William J. Brennan, Jr.: But wasn't that critical, meaningful, and major part of its existence so that total education --
Leo Pfeffer: Well, the total education, as I understand it, the total education involves, now I think, in the context, what it meant was that instead of assuring adherence to faith by teaching them only religion and allowing them to go to a secular institution for secular education, it says total education so that it has, as it were, control of both the secular and the religious aspects. That's how I interpret total education. I believe that's what was intended within the context.
William J. Brennan, Jr.: How many church-related Roman Catholic parochial schools, or Lutheran, or Jewish, I gather, both reformed and orthodox, aren't they?
Leo Pfeffer: How many are there?
William J. Brennan, Jr.: Church-related parochial schools. How many different faiths?
Leo Pfeffer: How many different faiths have--
William J. Brennan, Jr.: Yes.
Leo Pfeffer: For parochial schools or how many different faiths have church-related institutions, which is completely different--
William J. Brennan, Jr.: No, how many parochial schools?
Leo Pfeffer: Well, the major ones, as I know, the major ones are the Jewish, the Lutheran, the Seventh Day Adventist, and of course the Roman Catholics. Those are the majors, there are some Episcopalians.
William J. Brennan, Jr.: Now, under your definition, all four of them would be sectarian?
Leo Pfeffer: I have no definition which necessarily characterizes an institution as sectarian or merely church-related simply on the basis of a faith to which it bears relationship. There are many, many institutions which --
William J. Brennan, Jr.: Well, let me put it this way. Has any one of those four, can it be said that propagation, teaching, or practice or religion is not a meaningful and major part of the existence of the parochial schools?
Leo Pfeffer: I think so.
William J. Brennan, Jr.: It can be or cannot be so?
Leo Pfeffer: I think so, if we use the term church-related. If we use the term “sectarian,” no.
William J. Brennan, Jr.: No, I'm using-- I'm trying to get at this through your definition.
Leo Pfeffer: If it's not a meaningful or major, then it's not sectarian.
William J. Brennan, Jr.: Well, as to any of the four that you've named, Jewish, Roman Catholic, Lutheran, and what was the fourth, the Seventh Day Adventist?
Leo Pfeffer: Yes, but there are some of those in which the relationship to the church is so tenuous, it's a vestige of a nation's history.
William J. Brennan, Jr.: You mean by that that some particular, let's say, college identified with, perhaps, the Roman Catholic order may, in its particular circumstances, not be sectarian under your definition. Is that correct?
Leo Pfeffer: Yes, indeed. It may be very well be the mere fact that this Catholic does not necessarily mean it must be sectarian, and there are Catholic institutions which--
William J. Brennan, Jr.: Can you think of any Roman Catholic elementary schools that would not be sectarian under your definition?
Leo Pfeffer: Well, I'm afraid, I can't think of any, but--
William J. Brennan, Jr.: Can you think of any Lutheran elementary schools that that would be true?
Leo Pfeffer: I can't. I can think of Episcopalians. I can't think of Unitarians.
William J. Brennan, Jr.: Not-- I'm trying to limit it to your four for the moment. Can you think of any Jewish as to which-- elementary schools as to which that would be true?
Leo Pfeffer: Yes, I think it's quite possible. There are those--
William J. Brennan, Jr.: How about Seventh Day Adventist?
Leo Pfeffer: For example-- let me give you an example why there are Jewish, what are known as Sole Malachim schools which are Jewish secular schools. They do not have a religious commutation.
Harry A. Blackmun: I know elementary schools involved these cases.
Leo Pfeffer: No. I'm just talking about-- at this point, we're talking about colleges. We're not talking about anything else. As Mr. Justice Brennan's-- responding to Mr. Justice Brennan's inquiry, I'm not-- parochial schools--
William J. Brennan, Jr.: Let me finish it.
Leo Pfeffer: Sure.
William J. Brennan, Jr.: How about any elementary schools of the Seventh Day Adventist faith?
Leo Pfeffer: To my knowledge, all-- that they would all be deemed sectarian. I think there are Episcopalians which would not and, certainly, ethical culture, which this Court held--
William J. Brennan, Jr.: Are there some Baptist parochial schools?
Leo Pfeffer: Pardon me?
William J. Brennan, Jr.: Baptist.
Leo Pfeffer: Baptist? Baptists have very little parochial schools. They don't have that. They don't use that.
William J. Brennan, Jr.: How about Methodists?
Leo Pfeffer: I don't think they have parochial schools either. I don't think they have parochial schools. Now, the reason we have used the term “sectarian” in this brief and in our procedure because that's a term which has a long history behind it. 33 of the 50 states in the Union used the term “sectarian,” and none of them uses the term “church-related.” And, indeed, the statute which is initial here uses the word “sectarian” and does not use the word “church-related.” Now, the posture of this controversy, by reason of the fact that the Court below did not pass upon the basic issue which we presented, we had a trial in which we sought to present evidence with respect to four institutions in Connecticut, all Catholic, to show primarily to present to create a record as to what might be deemed sectarian and what might not be. We had precedent for that in State Court in Maryland just two or three years ago. there were four institutions which were challenged under a similar statute. The Court held three of them sectarian. One said the relationship of that fourth institution to a faith, to religion, was so tangential that it could not be deemed sectarian, but the Court took the position-- the Court--
William J. Brennan, Jr.: Hence then, did the Maryland Court of Appeals adopt your definition of sectarian in that case?
Leo Pfeffer: Basically. The Court below took the position that under the statute, and this was a position urged by the government and this is the position-- this is the interpretation that the Commissioner has applied throughout the nation, that it is completely irrelevant as to what the beneficiary institution is, what it was created for, what its purpose is, what its practice is. The sole test both as to meaning and as to constitutionality is whether the particular facility to which the federal funds have earmarked, whether that particular facility is not used either for sectarian instruction or religious worship. If that facility, an island of secularity surrounded by a sea of sectarianism, is clear of religion, then it matters not what the sea is and, therefore, the Court found that in finding of fact, the only finding of facts make laws that we presented no evidence. Indeed, we do not contend, we did not contest the fact that these four institutions, the facilities which were financed in part with federal funds, were not used for religious instruction or religious worship. Indeed, the evidence showed there was no crucifixes there, no religious images, that they were completely secular. And, the Court below, adopting the government's position, simply disregard and felt -- deemed irrelevant all the evidence presented as to the nature of these institutions. Now on the basis of that, the Court, in effect, held this. This is a fair conclusion, I believe, of what the Court has held and what the government contends that it is perfectly constitutional for the government to appropriate funds for building facilities and, I want to interrupt for one moment, the current facilities that had been interpreted by the Commissioner quite broadly, doesn't mean necessarily a building. A library or a chemistry laboratory in a building, the rest of the building, which is committed and devoted to religious teaching, so long as that library itself is not used for that purpose, that library can be financed. Now, an institution which admits only students of a particular religion, requires them to participate in religious activities, compels them to comply with the doctrines and documents of the religion, forces them to attend church, requires them under penalty of dismissal to take instruction in the theology and doctrines of that religion, and does everything to propagate and advance a particular religion other than conferred degrees in divinity, that such an institution can constitutionally receive governmental funds so long as, in its bookkeeping, it allocates those funds to the construction of a chemistry laboratory or a biology classroom. This is the crux of the Court's decision. I cannot see how the Constitution of the United States which forbids a religious test for public office, nevertheless, permits the financing of public facilities which are barred to anybody but members of a particular religion. This, yet, is what the government's position--
Potter Stewart: Does the record show in this case whether the Catholic schools in fact are, I think, only Catholics?
Leo Pfeffer: Well, we believe that such a finding could've been made by the Court. Among one of these institutions, over 95% of the students are Catholic. We do not contend necessarily that any one of these institutions fits this description, but we do not concede that they do not. We are unable to draw conclusions because the Court below made no relevant finding of the fact. It says all relevant -- irrelevant. We don't care how many students there are. We don't care if the students are required to take theology. We don't care if they're all Catholic. So long as the money is allocated to that part of the institution from which religion is excluded, this is, within the purview of the statute, unconstitutional.
Potter Stewart: Does the record itself in this case answer the question?
Leo Pfeffer: I think so. I think--
Potter Stewart: What did it show?
Leo Pfeffer: I think that at least shows at least one of the institutions has over 95% Catholic. It shows that it advertises a primarily Catholic periodical. It asks--
Potter Stewart: Your general statement was, at the beginning that this educational institutions would not admit anybody except Catholics.
Leo Pfeffer: I'm sorry. I don't think I said that. I said--
Potter Stewart: Well, that was--
Leo Pfeffer: I said the Court could have so found at least one of them. It could have so found. It made no findings. It could've made so found-- had it so found, I believe, such a finding would've been supported by the evidence in the record, but we don't know what the Court found. The Court said it doesn't make any difference, and but, more important, these four institutions are really not the important thing in this case. We brought them in only to create a record, to provide specificity to use the language in (Inaudible) of this Court. But, the Commissioner who is the real defendant in this case is applying this law nationwide. We're perfect in wanting to drop the suit against these four defendants. We have no desire to recoup any of the money they've gotten. We are seeking an adjudication which will be a guide to the Commissioner of Education in carrying out the functions, duties, and obligation under this Act. Now, we claim that, first, our argument is that it is not necessary for this Court to reach the constitutional issue. We believe that the statute can be reasonably read to limit it to such institutions which are not sectarian in the sense which we have indicated, in the sense which has been used in the State Courts in interpreting their own statutes, let's say there are 150 years of judicial interpretation of the word “sectarian.” We do not contend and we've never contended that merely because the institution is church-related that it's disqualified or Congress intended it to be disqualified. Now, we think it is reasonable and, under the well-established rules, the Court should seek if it really reads it that way, it should seek to interpret the statute according to the context in which I have suggested. Certainly, it's far more acceptable and far more defensible or far more acceptable an interpretation than, for example, the interpretation of Supreme Being in the Seigard (ph) case--
Byron R. White: It's actually been administered on the other premise on the--
Leo Pfeffer: Yes, indeed, it has administered in the other premise. That's why we're in Court, or else we wouldn't be in Court. But leaving aside any further discussions of constitutionality, how could we just inextricably wound up with constitutionality, we claim that it is part of the Constitutional law of the United States and of all the states in the Union that public funds may not be used to finance the operation and construction of an institution, a sectarian institution, of a type which we have described. We believe that is a principle which is as -- might be said to be part of the common law of the American Constitutional System. It was given its most, perhaps, broadest pronouncement in the Everson case in 1947 in upholding bus transportation. The Everson case, a 5:4 split, was -- would've meant nothing if there were not agreement that you could not finance the operations of the institution itself. The Everson principle has been criticized because of the term “no aid” is too broad in this Court, and it also suggested that may be too broad. The Everson principle is not a no-aid principle. The Everson principle is no subsidy principle, and the Court distinguished it. It distinguished it in Walz. It distinguished in Allan, the textbook case, between aiding an institution which the government does many times and subsidizing it, financing it. That, what we contend, is unconstitutional. Now, we have said in our brief, as the government takes exemption to it, that we have been able to find in the history of the United States a precedent to this Higher Educational Facilities Act of 1963, for governmental financing the construction operations of a sectarian institution. The government says, ever since-- in their brief, ever since the Moral Act, the Land Grant Act of 1962, the government has financed church-related institutions. We've said sectarian and gives us evidence for that, support, for that assertion a study made by the Brazilian Library of Congress which is reported in the congressional record, listing the educational institutions, church-related educational institutions which have received Land Grant funds. I should like to, with the brief list, I should like to list-- read you the list of, I think, less than a dozen institutions which are cited in support of this assertion. Brown University, Yale University, Rutgers University, Dartmouth University, University of Kentucky, University of Delaware, Atlanta University, Maryland State College, Auburn University, Kansas State University, University of California. Yes, University of California and Kansas State University. How are these church-related? Well, each one has a little comment to show how it's church-related. I will read only one, Kansas State University. To the naked eye, I assume one would not suspect Kansas State University to be church-related, but this government says it is. It reads as follows. Kansas State University: Methodist church gave Bluemont Central College to state as site for new agricultural college which was to receive Land Grant funds. The Kansas State Agricultural College became the state university. This is the whole comment. Ergo, it follows that the government has given money to a church related college. I submit, Your Honors, if this proves anything, it proves the opposite of what the government decided for. It proves the recognition that Bluemont College, so long as it was part of the Methodist church, could not receive government funds. So, what was done? A gift that was made to a state university of the State of Kansas, the State of Kansas made a public institution and it received funds. This is, I submit, an argument which does not stand strongly in this case. Now, I recognize that the Everson decision is a decision of this Court and what this Court gives, this Court can take away. And, if the Everson principle is dead, perhaps this Court should say so. My argument is that the Court has not said so, that notwithstanding the criticism and it is legion. There's hardly law reviews in the country which is said to have from time to time, now for showing how broad the Everson dictum is and criticizing for its over breath, but the supreme judiciary body of the United States is not the law reviews. It's not the briefs of counsel. It is this Court, and I submit that this Court has not in any way impaired the integrity of the basic principle of Everson of no financing of sectarian institutions.
Byron R. White: What do you say about the conclusion --
Leo Pfeffer: The conclusion is certainly not a--
Byron R. White: In the judgment.
Leo Pfeffer: The judgment said, and indeed this is how Everson has been interpreted every one of the cases. This statute is constitutional because it does not subsidize the operations of a parochial school. It does not finance it. This statute is constitutional because it cites-- it provides welfare or safety benefits. The Court said it deals with just the same as the policeman in the corner. It's to protect the children from the hazards of the road. It does not. And in Allan, the textbook case, the Court said the same thing. This statute does not subsidize, does not finance the operations of the parochial school.
Byron R. White: Of course the Court couldn't say the same thing in these cases.
Leo Pfeffer: It could say that. I wonder how it could say it if it says what--
Byron R. White: It could say so in Allan and if it could say so in Everson, perhaps it could say so in this case.
Leo Pfeffer: It could say it, but respectfully with a good deal less validity. I don't know how a Court can say that financing a building, which is part of the institution, not financing an institution.
Warren E. Burger: How do you distinguish a building, really, from the transportation facility as a tool of education?
Leo Pfeffer: Well, the answer is, Mr. Chief Justice, that Everson was based on the fact that transportation was not their tool. The majority claims were lost. The four justices, Justice Rattles, Mr. Justice Jackson asserted that loss, but the majority of the Court said it is not. They said it's a tool of public safety. It is to protect the children from getting run over. That's what the-- that's the premise of the Everson case and this is how it's been interpreted. Now, if the Court is prepared to overrule Everson, I think it should do so in clear unambiguous language. I should like to quote to the Court a short statement from the credos of Chief Justices. He said, in United States against Burke (ph), an opinion which is to overrule all former precedents and to establish a principle never before recognized should be expressed in plain and explicit terms. A mere implication ought not to prostrate a principle which seems to have been so well established, general expressions ought not to be considered as overruling the settled principles without a direct declaration to that effect. If this Court is prepared to correct a century-and-a half of error, I submit it should do so clearly and unambiguously. I submit further that it had not done so. In no case has this Court in any way impaired the integrity of the basic principle of Everson, no financing or subsidy of the operations or constructions of a sectarian institution in the sense which we are using that term.
William J. Brennan, Jr.: Mr. Pfeffer.
Leo Pfeffer: Yes?
William J. Brennan, Jr.: Sometime, would you comment on the Bradfield case?
Leo Pfeffer: Yes.
William J. Brennan, Jr.: Particularly in the light of the fact it is not cited in the government's brief?
Leo Pfeffer: I will – Bradfield, at this particular point and no point-- no need to respond. Bradfield against Roberts was an 1899 decision in which the Supreme Court unanimously upheld a contract between the City of Washington and a corporation formed by an order of nuns to operate the Providence Hospital in the City of Washington. The Court held the statute constitutional on two basic concepts. First, that there was nothing sectarian in the operation of the hospital. This hospital, as the Court said, is operated according to its charter and it is not the hospital which operates -- which treats ill people. It does not teach, it does not propagate religion. Within the term of “sectarian” as we've used in this case, it is not a sectarian institution. The Court indicated that as a separate corporation, but I don't think that's the critical factor. I think the law pierces a corporate veil to prevent fraud. I think the law would pierce a corporate veil to prevent violation of the First Amendment, but the critical factor is not whether this is a legal fiction, a separate corporation, but whether this is in truth and in fact an institution which propagates and practice religion. It says it does not propagate -- propagates blessing and teaches-- it teaches medicine. Secondly, here's another critical distinction, the Court pointed out that no person is denied admission and treatment to that hospital because of the religion or faith. It does not limit it to the members of that faith. It said, indeed, it had to be because, as part of its contract with the City of Washington, it had to take indigent patients. Now, I submit to you that a state cannot make a contract -- a federal government can't make a contract with a sectarian educational institution of the type of this kind whereby the state will pay that institution money and send its students there. It can do it with a hospital. But, the institution has a right to say, indeed, it has a constitutional right to say “under the Religious Liberty Clause, we will not admit anybody here unless he's part of our faith and, indeed, if he is part of our faith, as the record shows, he must take Catholic Theology or Lutheran Theology, must go to mass or to communion.” This is a condition which a sectarian institution has, under the Free Exercise Clause an absolute right to make. That was not followed in Bradfield against Roberts. Now, if I am correct that, up to the present, this Court has not impaired the integrity of the basis of Everson, I submit that the fact that the funds which are allocated are earmarked for a particular facility which, of itself, is not religion. I--
Byron R. White: Mr. Pfeffer.
Leo Pfeffer: Yes?
Byron R. White: I take it, from your discussion in Bradfield, although the-- since you say the separate corporation was not very important in the case, that the government may give money to a church, a religious organization, to carry on a non-religious activity.
Leo Pfeffer: A welfare activity.
Byron R. White: A non-religious activity.
Leo Pfeffer: Well --
Byron R. White: That's what they did in Bradfield. They gave money to the church to carry on a hospital, in which hospital there were no religious activities.
Leo Pfeffer: That was -- that's not all. In which activity was--
Byron R. White: Well--
Leo Pfeffer: Was available to everybody.
Byron R. White: Well, I agree with that.
Leo Pfeffer: But that's part of the picture.
Byron R. White: I know, Mr. Pfeffer, but nevertheless the government may give money to a church to carry on non-religious activities.
Leo Pfeffer: Subject to certain other qualifications, but not--
Byron R. White: Okay, so the answer is yes.
Leo Pfeffer: Yes, subject to qualifications. Yes, to a non-religious activity but not one which is limited to the members of that faith or which has a religious bar or determination as to who can get the benefit of that facility.
Byron R. White: Would it have made any difference in Bradfield if there had been a place for prayer and worship in the hospital?
Leo Pfeffer: It would've if every patient were required to go to the prayer as they are religious institutions. It would've made all the difference in the world. In these institutions, the record shows that Catholic -- participation in Catholic theology courses is required.
William J. Brennan, Jr.: Would it have made any difference in Bradfield if, as I think is the custom in Catholic hospitals, there were a crucifix on each-- the wall of each hospital room?
Leo Pfeffer: I don't think that would've been enough to make a difference. I don't think that-- if that's all there was, I don't think that would have bordered in to the framework of a sectarian educational institution of the type which I've discussed.
William J. Brennan, Jr.: Nor that each nurse was a nun wearing a--
Leo Pfeffer: Nor that each nurse was a nun. I think what's critical--
William J. Brennan, Jr.: Nor that the director of the hospital--
Leo Pfeffer: I don't think that was enough.
William J. Brennan, Jr.: Well, Mr. Pfeffer, I suppose the government could give the money to the church to carry on the non-religious activity even though the church might have carried it on any way.
Leo Pfeffer: Well, I don't see what the relevance of whether the church would've carried on anyway or not.
William J. Brennan, Jr.: Well--
Leo Pfeffer: I would say, yes. I-- in fact, I can't see what that-- how that makes the constitutional--
William J. Brennan, Jr.: Well, it would just say it's church money.
Leo Pfeffer: That, I don't--
William J. Brennan, Jr.: Bookkeeping really isn't important.
Leo Pfeffer: It's not that bookkeeping isn't very important. The point of bookkeeping is important for this reason. The bookkeeping is important that it's not because it saves the church's money, but because -- indeed, it's not important. I think it's absolutely not important, but not for the reason which you might be suggesting. It's not important because the money is used not to save the church money. Now, the church money may not have-- that might be a case of the church has to go indeed, as a claim. They have to go out of business, unless they get the federal funds.
William J. Brennan, Jr.: Well, Mr. Pfeffer, you certainly have to concede that what happened in that case was a subsidy of a religious order to operate the hospital, wasn't it? It was government subsidy with government money to operate activity of the religious order toward the hospitals.
Leo Pfeffer: It was not-- It was-- again, I must go back, Mr. Justice Brennan.
William J. Brennan, Jr.: Wasn't it that?
Leo Pfeffer: It was that, but it was more than that. It was more than that. It was to--
William J. Brennan, Jr.: But it was a subsidy, wasn't it?
Leo Pfeffer: It was a subsidy to operate a public service available to all of the public without any requirements of religion, without being required--
William J. Brennan, Jr.: No matter how you parse it, it was nevertheless the subsidy of a religious institution, wasn't it, to that extent?
Leo Pfeffer: It was not the sub-- I never said the constitution forbids a subsidy of a religious institution. I--
William J. Brennan, Jr.: Just forbidding the subsidy--
Leo Pfeffer: I said of an institution which is engaged in the propagation and teaching of religion.
William J. Brennan, Jr.: Well, didn't the Catholic Church?
Leo Pfeffer: This hospital did not engage.
William J. Brennan, Jr.: Didn't the Catholic Church?
Leo Pfeffer: The Cath-- but, not the hospital.
William J. Brennan, Jr.: So, you're saying that you may not subsidize an activity which is a religious activity.
Leo Pfeffer: Exactly, an activity which is a religious activity.
William J. Brennan, Jr.: The only question in this case is whether the teaching of mathematics in a building is a religious activity or not.
Leo Pfeffer: If teaching of mathematics in a building may be a religious activity, it may not--
William J. Brennan, Jr.: We have a very short point. We've only reached the point whether--
Leo Pfeffer: No.
William J. Brennan, Jr.: Whether the government can subsidize the construction of a building. We don't know what's going to be taught in it, but--
Leo Pfeffer: Well, I say the government cannot subsidize the construction of a building whether they called it religious or not religious.
William J. Brennan, Jr.: Then why should it subsidize the operation of a hospital?
Leo Pfeffer: Because nobody was barred from entering that hospital because of religion, and I cannot get away from that. This is a critical difference.
William J. Brennan, Jr.: Well, I suppose the government could've come into the business of building hospitals of its own.
Leo Pfeffer: But it could not-- it should, but it could not bar a non-member of any particular religion because there isn't funding, and I cannot see how, if the government can do it itself, it could subsidize somebody else to do what it's hoping to do.
William J. Brennan, Jr.: I suppose that the government would be barred by the First Amendment from building a sectarian school. I supo--
Leo Pfeffer: Indeed, it would. It will do it. Now, if you take, Mr. Justice Brennan, if you take your argument and carry it out--
William J. Brennan, Jr.: I'm not making an argument.
Leo Pfeffer: I mean, you're--
William J. Brennan, Jr.: You're making an argument.
Leo Pfeffer: I'm sorry. Your suggestion--[Laughter] Your suggestion. Thinking to meet your question, suppose you have a church which does nothing but prayer and worship, and the government gives it money to be used only for construction of new furnace room because the furnaces are out of order and the church had no money. So, the government gives it money to construct the furnace room of that church. Is that constitutional? I don't--
William J. Brennan, Jr.: That's not the case we have, is it?
Leo Pfeffer: It is indeed. The argument which we make and the case which we make and the Court said that even, by its decision, that even so, if the chemistry laboratory, if the biology laboratory, is there an order to make it possible for a student to get all of their education under religious hospices which is what the Court said in Walz, then, this chemistry lab is just as much part of the whole religious unit as is the room used for teaching religion or for prayer. Now, I must-- in view of the time, I must go, if you'll permit me, to the Walz test which is the latest voice of this Court, the latest statement of this Court on what the Establishment Clause means. The Walz--
William J. Brennan, Jr.: Did this Connecticut case-- was that decided before we decided Walz?
Leo Pfeffer: Yes, indeed. I'm--
William J. Brennan, Jr.: I gather, from your brief, you're suggesting that we may have a different test in Walz than the one we have-- than the purpose and effect test we had in Schempp?
Leo Pfeffer: No, I am not contending that at all. I'm contending all tests: Everson, Schempp, Allen, and Walz.
William J. Brennan, Jr.: Are all the same?
Leo Pfeffer: Are basically all the same. They are different formulations of what I've said to be 150 years of constitutional law of the United States. If there's going to be a change, this Court has to make it. I am not challenging the constitutional law.
William J. Brennan, Jr.: I have read some judicial opinions attempting to draw a distinction between an exemption and a subsidy.
Leo Pfeffer: Yes, indeed. Walz doesn't. Walz said and the difference is that exemption applies no surveillance, no entanglement, subsidy does. And, entanglement and surveillance here, there is galore. The Act provides that for 20 years a facility is used, if any time in the 20 years a facility financed with federal funds is used for sectarian worship or prayer, the institution must pay back to the government. For 20--
William J. Brennan, Jr.: At the end of 20 years, what happens?
Leo Pfeffer: It belongs to the institution.
William J. Brennan, Jr.: And then it can be converted for the church, can't it?
Leo Pfeffer: It could.
William J. Brennan, Jr.: Even though the government paid for it?
Leo Pfeffer: At then Even and, presumably -- I am not saying that's constitutional but, presumably, the government feels that 20 years is the life expectancy of the building. After 20 years, it is so depreciated in value, perhaps you can do anything you want. I presume that's the rationale, but look-- but if Your Honors please, what is required under this statute? The government must keep an eye on that institution for 20 years unless religious teachings be bootlegged in to a humanity class because, if it does, it violates the law. This is surveillance for 20 years. Moreover, in Everson, this Court ruled not only that it's unconstitutional for a public institution to finance institution to teach the Genesis version of creation, but it's unconstitutional not to teach the Darwinian version of creation, of evolution. So that, this Court – United States will have to police these colleges, make sure not only they do not teach Genesis evolution or creation according to Genesis, that they must teach creation according to Darwin. This is surveillance of the most extreme kind. This is the entanglement of the state and religion of a type which every decision of this Court. Going back to Watson against Jones, 1870, every decision which the Court said that governments keep out, censoring, looking into the-- what's happening in the religious institution. It's done it in the Russian Orthodox cases. It's done that in the Catholic against Connecticut. It says this-- we are not to go into the insti-- the ecclesiastical, theological, or religious institution and spy upon them or oversee them or entangle ourselves in their activities. I cannot see how, under this statute, the government, to be faithful to its constitutional obligation, because I'm sure everybody can see that the government may not finance a facility which is used for religion.
William J. Brennan, Jr.: Now, what is that form of surveillance?
Leo Pfeffer: Well, accord--
William J. Brennan, Jr.: That's for 20 years, you're telling us.
Leo Pfeffer: Yes. According to--
William J. Brennan, Jr.: And what form does it take?
Leo Pfeffer: Well, according to what appeared from the government, the government will be-- will probably be in better position to answer this than I. If they have any reason to believe that there may be use of the premises for religion, they inspect it and they can and do exercise control to make sure that either that's discontinued or that appropriate countermeasures are taken. Now, I don't know-- I'm not privy to how they administer it. What I'm saying is that there's no way of avoiding it. There's no avoiding either the constitutional barrier or the statutory barrier.
William J. Brennan, Jr.: Well, isn't it an expressed statutory provision which says you shall keep this surveillance over 20 years?
Leo Pfeffer: No, it says you shall-- the statute says if this facility is used in violation of this provision as well as other provisions, I'm not talking only about this provision, within a 20 year period, that the institution must reimburse the government funds.
William J. Brennan, Jr.: And are the procedures for surveillance set up by regulation, is that it?
Leo Pfeffer: I don't know. I could not answer.
William J. Brennan, Jr.: Well, maybe I should answer--
Leo Pfeffer: I think the government would have to answer that, but whether there are or aren't I think is not constitutional. I think if they aren't, it means only that the government is neglecting its constitutional statutory obligations. The test is not whether it's doing it. The test is whether it's required by the law and the constitution to do it.
William J. Brennan, Jr.: Well, that's why I was asking you whether they were required by law to do it.
Leo Pfeffer: Yes, indeed, they are required by law and the constitution to uphold the statute out of the constitution. Now, this requires no other way, unless they take the institutions. At least they don't -- at least they don't if there's some evidence to the contrary.
William J. Brennan, Jr.: And you say the surveillance is un-consequent and it makes-- adds to the unconstitutionality.
Leo Pfeffer: Under the Walz test. It is not the only thing. There is far more than that, but this is -- it is our contention that no matter how you look at this, how you look at this is unconstitutional. The basic premise is a premise which has only estops the constitutional law. These troubles which have been had both before this Court and the law reviews and the law rights of how to formulate that, but the heart and blood of it is that you cannot tax the whole community to support a religious enterprise whose purpose is to propagate to teach religion and it bars from its facilities those who are not of that faith. That, to me, is basic constitutional law and I don't think any test, however formulated, can get away from a face to face encounter with that basic proposition. Now, one word --
Byron R. White: So you fundamentally, I take it, you just take issue with the notion from the ground up that there's more than one activity going on in a sectarian school that everything that goes on in it is sectarian--
Leo Pfeffer: I didn't -- that's not the ground. I didn't say that. I said--
Byron R. White: Well, is there any secular education going on?
Leo Pfeffer: Surely.
Byron R. White: But do you think it's inextricably intermingled with a secular?
Leo Pfeffer: Absolutely. I'm saying that that secular -- under the entanglement test, it doesn't make any difference. Under the entanglement test makes no difference because it still requires surveillance to keep it that. You can't-- unless you want to overrule--
Byron R. White: Do you think it's irrelevant that some schools, you would classify as sectarian under your definition, if some school undertakes to live up to the conditions of the grant, that you must nevertheless disregard the conditions in order to say it's unconstitutional for them to agree to those conditions.
Leo Pfeffer: Yes, unless the Court wants to overrule Everson, wants to overrule Walz and, I believe, overrule Howe too.
Byron R. White: No, I take it you would agree that you can subsidize a church, give money to a church to carry on an activity which activity itself is not aimed at propagating the faith.
Leo Pfeffer: Yes, subject to the condition which I've repeated many times.
Byron R. White: Yes, well--
Leo Pfeffer: I can't get away from it.
Byron R. White: What was up with that?
Leo Pfeffer: Because, otherwise, the mere fact--
Byron R. White: What's up with that?
Leo Pfeffer: The mere fact--[Laughter] More than that-- it's more than that. I hope so. There mere fact that the institution is limited to the members of the faith, as the members of the faith are required to accept instruction, which they are, in that faith as a condition to using that facility which is a case here. It indicates to me, sir, that that facility is a means now and then. It's there in order to make sure that we get kids who will take religion. They won't take--
William J. Brennan, Jr.: By facility, you mean the institution, not the particular--
Leo Pfeffer: No.
William J. Brennan, Jr.: Not the particular laboratory building, do you?
Leo Pfeffer: That's what I mean. I mean, why does an institution which is, in this --
William J. Brennan, Jr.: No, but I thought what we were dealing with here was the construction of a building which was to be used as a laboratory, or something, for chemistry and the like that had nothing whatever to do with any religious teaching, and you say that that's prohibited.
Leo Pfeffer: It has nothing to do with religious, Mr. Justice Brennan. If its-- anybody could go in there, it is not part of the institution. It's not a means to achieve the end of the institution. We cannot--
William J. Brennan, Jr.: Well, recently, you may know it, Mr. Pfeffer. It has opened, on the campus of a Catholic University, a theater.
Leo Pfeffer: Oh, Yes.
William J. Brennan, Jr.: Father Hartke's. He's a director. He's a priest. That's open to the public of course, but with that -- if the government had built the Father Hartke's Theater, would -- since it's on the campus of Catholic University, he's on the faculty of the Catholic University.
Leo Pfeffer: That is not enough for--
William J. Brennan, Jr.: Would you--
Leo Pfeffer: That is not enough for me and those facts are not enough for me to express an opinion, but I don't have that here. I'm not required to express an opinion there. That's not in any of these cases.
William J. Brennan, Jr.: It wouldn't necessarily be in some--
Leo Pfeffer: It would not necessarily, but if -- in order to get into that theater you had to go first through a chapel where you got a sermon on the religion and then you went to the theater, I would say we'd have an analogous case here. That's what I would say because that's exactly what the government might say it is perfectly permissible.
Warren E. Burger: Mr. Pfeffer, suppose, against the background that we have in this country of shortage of doctors and probably a shortage of lawyers, the government embarked on the grant program to grant to any school, any university including Georgetown and Catholic University, grants for law schools and basic science and medical schools which we build on the land owned by the university and to revert to them as it does here in fee after 20 years. Would you -- I'm not clear from what you've said now whether that would or would not be permissible constitutionally.
Leo Pfeffer: I would say it wouldn't -- I will not say whether it will be permissible, but I'm saying what conditions it would not be permissible. I think -- because, that, I think is what's relevant here. We are not required to spell out for the government what it may do, we are here to say -- to try to convince the Court that what it has done, it may not do. It may not say you cannot go to the law school unless you take theology, unless you participate in mass, unless you are of the Catholic religion or Lutheran or--
Warren E. Burger: I should have included in my hypothesis what I believe to be the fact that Georgetown University you can go to the law school without going to any other school, going to--
Leo Pfeffer: Then I say a very good case could be made out for saying that, as in the Maryland case, that the relationship of that institution to the church is reached a point where it's no longer sectarian. And, indeed, this is what's happening with many with many institutions. It's what happened with Yale, with Harvard, with Columbia, with Princeton. They started out as sectarian institutions. This is what happened to some Catholic institutions. They're going through the same procedure. For them, Georgetown, Notre Dame -- I wouldn't be surprised that in 10 or 15 years the relationship between Notre Dame and the Catholic Church will be somewhat analogous to the relationship of Columbia University and Episcopal Church or Princeton and Presbyterian Church, all the institutions. Now, many of the institutions are going through the same development, and they reach a time, as the-- as was the Court of Appeals of Maryland held, when you can say that this is no longer a sectarian institution. The public school system where the United States went through the same metamorphosis, it started out as protestant schools, as Bible schools, and it was against this context that these state constitutions were written -- provided that they cannot be supported because of they're Protestant, not that they're Catholic, they are Protestant Church relationship, church sectarians, and they use sectarians. But, little by little, through a period of development they became truly non-sectarian institutions, and I say that there are many such institutions of higher education which have a church relationship, but --
William J. Brennan, Jr.: Well, Mr. Pfeffer, let's take these specific institutions here that the government include students who want to go to these schools in a generally applicable scholarship program?
Leo Pfeffer: Scholarship to students who could choose any college they want to go to?
William J. Brennan, Jr.: Any -- it's a scholarship program based on financial need, but if -- but he can take his scholarship and go anywhere he wants to.
Leo Pfeffer: If Your Honor please, I would like to exercise my privilege of not replying to a question which I believe is not relevant to this case --
William J. Brennan, Jr.: Yes, but you certainly deny it.
Leo Pfeffer: Because the issue is a difficult one and I don't want to foreclose any possible position which I could take at a future time.
William J. Brennan, Jr.: Of course, in that situation, the government would be furnishing the most critical element of a religious activity, namely the people.
Leo Pfeffer: Well, then perhaps if that's so, then I would say, if assuming you say that I say it's constitutional, I'd be grateful to have to, but I'm not prepared at this point either to make the claim or to defend it. I'm not required to in the light of this case, nothing in the Court's opinion below, nothing in the position taken by the government.
William J. Brennan, Jr.: Well, I thought you read Allen as -- in part as being-- going on the ground that it went to the students instead of the institution.
Leo Pfeffer: I--
William J. Brennan, Jr.: Where would I find that in your brief?
Leo Pfeffer: I said that Allen stressed that there was no subsidy to the institution.
William J. Brennan, Jr.: Well, isn't that the same as saying it went to the students instead of a school?
Leo Pfeffer: No, there was no subsidy there involved at all, the use of books were involved and Allen, as I interpret Allen--
William J. Brennan, Jr.: Do you think it might have been different if the youngster got money to go to a bookstore and buy the books? Do you think Allen would've come out differently?
Leo Pfeffer: I'd rather not speculate perhaps what Allen would've decided. I would say it did not decide that. What I think Allen decided was this. That just as a Catholic child or a Lutheran child can go to a public library to borrow a book which he needs to help him in his studies, he can in this statute -- under this statute, get it from a state directly without going to the public library. But, I do not interpret Allen to say that the fact, that this book is limited only to persons of a particular religion would nevertheless make it constitutional.
Potter Stewart: Does the record show how many of the institutions, who are receiving this aid, are sectarian?
Leo Pfeffer: Well, in Connecticut here's what we did. We show on the record those who brought the suit, I mean those who examined the various institutions in Connecticut which they could and they chose -- in bringing the suit, they chose those which they deem to be basically religious. They did not choose others which were not sectarian according to the language we used, but did have church-relation. If Your Honors please, I should like to reserve the balance of my time for rebuttal. Thank You.
Warren E. Burger: Very well, Mr. Pfeffer. Mr. Friedman.
Daniel M. Friedman: Mr. Chief Justice and may it please the Court. The Higher Educational Facilities Act of 1963 rests on findings by Congress that, at that time, there was an urgent need for a tremendous expansion of the higher educational facilities in the United States and, in order to enable the young people of this country to obtain an education which they needed and which held out great promise for the future, the provision in Title I for grants to educational institutions only permits grants upon a determination that the grant will result in the creation of urgently needed expansion of facilities which will increase enrollment of the colleges so that the critical fact of this statute is that it was designed in order to enable this country to expand its higher educational facilities at a time when existing facilities were inadequate. Now the statute, as Mr. Pfeffer has indicated, is very explicit that no federal grants may be made for any facility which is used for sectarian instruction or sectarian worship and in addition, no grant may be made for any facility which is whole or part of a school of divinity, and school of divinity in turn, is defined very broadly. It's defined as a school for the education of students to prepare them to become ministers of religion or to enter upon some other religious vocation or to prepare them to teach theological subjects.
William J. Brennan, Jr.: Now, once a grant is made though, Mr. Friedman, I gather --
Daniel M. Friedman: Pardon me?
William J. Brennan, Jr.: Mr. Pfeffer suggested that once a grant is made, once you get over these hurdles and the institution qualifies for a particular facility, then is the right policing arrangement?
Daniel M. Friedman: Let me tell -- say specifically what the-- there's no policing, as we use the term for--
William J. Brennan, Jr.: Well, what's the statutory provision that deals with this?
Daniel M. Friedman: There's no statutory provision with that. The only statutory provision is that academic facilities cannot be used for sectarian instruction or as a place for religious worship. Now, what the Office of Education has done in this area is it relies primarily upon the representations made by the institutions when they seek a grant. They're required to certify that none of these facilities will be used for religious purposes. They're specifically instructed in several places on the application forms that this is the limited purpose. They do have some on-site inspections. The on-site--
William J. Brennan, Jr.: Is this under some standard procedures, regulations, or--
Daniel M. Friedman: No, this is just under what I might call informal procedures. They have informal procedures from time to time --
William J. Brennan, Jr.: No regional setups throughout the country.
Daniel M. Friedman: They have regional offices, but they do not have regional inspection procedures. The information they have given me is that since the statute -- since the funds were received in 1965, there'd been approximately 3,200 grants. Of the 3,200 grants, approximately half or 1,600 result in facilities that have now been completed. And, of the 1,600 completed, there have been approximately 400 on-site inspections, but the nature of these facilities, since these are buildings, the nature of these facilities means that the inspection, the kind of inspection is relatively simple. In other words, they look to see -- look at the catalog to see what courses are --
William J. Brennan, Jr.: Where did I-- did I read in one of the briefs? There's so many briefs here. I can't be sure. That there had been an incident about some institution in Mississippi, is it?
Daniel M. Friedman: There are, shown in the record in a stipulation on pages 82-84, three instances where information came to the attention of the Office of Education that three institutions apparently had been using some of their facilities for religious purposes. In two instances, the institution agreed to stop it and the third instance where they were using an assembly hall for a chapel, the institution decided to return to the federal government the money it had received from the grant. something perhaps it's self-evident. The federal government in these grants does not, of course, pay the full amount of the facility. It's only a proportionate amount.
William J. Brennan, Jr.: Now, is it so that at the end of the period of 20 years, I think Mr. Pfeffer suggested, then the fee goes over--
Daniel M. Friedman: That--
William J. Brennan, Jr.: And I gather, at that time, the assembly hall could be converted into a chapel.
Daniel M. Friedman: That's right. 20 years, I think, is a recognition by Congress that this is a point at which the connection is so remote. One thing I should say, however, that if during the 20-year period it has discovered that an impermissible use is being made of one of these facilities, it does not necessarily automatically revert back to the government and they do not necessarily have to refund the amount. They have the privilege of terminating the impermissible use which is what happened in two or three of these hypothetical cases.
Hugo L. Black: What happens if they do not terminate?
Daniel M. Friedman: If they do not terminate the use?
Hugo L. Black: Yes.
Daniel M. Friedman: Then they are required under the statute to refund what they have received from the government, but it's on a formula under which they refund the relative value of what they got from the government to the total cost of the facility on the basis of the then value of the facility.
Hugo L. Black: Is that a statutory formula or--
Daniel M. Friedman: Yes, that is the statutory formula.
Hugo L. Black: What if they don't return it.
Daniel M. Friedman: Well, if they -- I presume the government could then either bring a suit to --
Hugo L. Black: What happens to the building?
Daniel M. Friedman: Well, I suppose this would depend on what relief the government seeks. The government building might revert to the government.
Hugo L. Black: Does the statute provide that it does?
Daniel M. Friedman: The statute is not explicit on that. The statute merely states that if--
Hugo L. Black: You mean it is not clear on it.
Daniel M. Friedman: It's not clear on that, that's right, and we're hopeful that no such cases will arise. This is, at least as of this time, there have been no instances where the government has had to resort to that except for these three instances. Now, let me -- since Mr. Pfeffer has been talking largely about what I might call theoretical institutions, let me say that as far as these four colleges are concerned, the record in this case is unequivocal that there has been no prohibited religious use of any of the facilities here. It was testified to without any question and the appellants here introduced no evidence that there was no religious use made of any of these buildings, that there were no religious plaques, no religious symbols in any of these buildings.
Byron R. White: Mr. Friedman, in these -- what does the evidence show about whether these institutions limit their students to one with the legislation.
Daniel M. Friedman: The evidence is very explicit on that that they do not. There was, again, un-contradicted testimony by the heads of all of these institutions, but --
William J. Brennan, Jr.: But the Court made no findings.
Daniel M. Friedman: The Court made no findings.
William J. Brennan, Jr.: And its implication was it wouldn't have made any difference.
Daniel M. Friedman: Presumably.
William J. Brennan, Jr.: So we must consider this case as though it were a case involving an institution that did limit admission?
Daniel M. Friedman: I don't think, Mr. Justice, it would necessarily make any difference, but I don't think the Court should consider on that basis because even though the District Court did not make any findings, we have this record and this record is un-contradicted. One, that they do not discriminate, that they do permit members of any faith to attend the school.
William J. Brennan, Jr.: Does it -- excuse me, does it -- what does the record show about whether or not people who attend these institutions must attend chapel?
Daniel M. Friedman: The evidence is, again, un-contradicted that no non-Catholic is required to attend any religious service.
William J. Brennan, Jr.: What about Catholics?
Daniel M. Friedman: Catholics, it varies, I believe. In some of the testimony, it wasn't. In some of the institutions, they were not required to and some they were. Some of the --
William J. Brennan, Jr.: What about the ones that where they require some of the students, namely Catholics, to -- as a condition for participating in the secular education program to attend chapel and to take a course in religion?
Daniel M. Friedman: Well, Mr. Justice, let me -- I'd like to correct my answer. I'm thinking back because the testimony is by the precedence of these colleges that the Catholic students are not required to attend any religious services. They say that Catholic doctrine may require them in some circumstances to do so, but that is a matter for their own conscience. The school does not--
William J. Brennan, Jr.: In other words, that is independent of any -- without the compulsion of any school regulation.
Daniel M. Friedman: That is correct. The--
William J. Brennan, Jr.: It's just a matter of faith.
Daniel M. Friedman: That's right. There is--
William J. Brennan, Jr.: How about a school that does require, Mr. Friedman, and some schools do, West Point for example.
Daniel M. Friedman: Well, again, Mr. Justice, I wouldn't think that would make any difference because, as I will come to in a minute, under what we think is the appropriate test, the question is you look to see the facilities being subsidized, are they secular? Now, as Mr. Justice Brennan has suggested, at West Point they may have compulsory chapel. There's litigation now pending in the District of Columbia over the validity of compulsory chapel at the Naval Academy, but let me-- if I may say one--
Byron R. White: Now, before anything--
Daniel M. Friedman: One other thing, Mr. Justice White, with respect to the way these schools operate, the evidence is also un-contradicted that there are large number of lay people on the faculty. Indeed, the Head of the Psychology Department in one of these colleges testified that in the seven full professors on his staff, four of them were Jewish.
Byron R. White: How about the curriculum? Do they include the courses in religious instruction in which it's mandatory for students to take?
Daniel M. Friedman: I believe that these courses are not mandatory for non-Catholic students. I think that Catholic students are required in some instances to take certain courses and again, however, these courses are not taught exclusively by Catholic teachers. Almost every one of the schools, for example, has a rabbi on the staff and, interestingly enough, the rabbi is not restricted to teaching Jewish theology. He is to -- in Jewish religion, he teach -- one of the rabbis teaches a basic course in introductory survey of religion. Now, I would like, if I may, just briefly to refer to the contention of appellants that the statute doesn't apply to these, doesn't permit these grants. That is, that the statute is silent on the type of institutions that may receive grants. All that it speaks about is it permits grants to institutions of higher education and, that, seems to me a neutral thing, but the qualifications that the statute creates for the receipt of these grants is based on the academic situation of the school, not upon its religious affiliation. However, the language of the statue strongly suggests that Congress recognized that grants would be made to church-affiliated, religiously affiliated institutions because of the specific exception for grants to divinity schools. Now, it's common knowledge that most divinity schools are operated by religiously affiliated institutions and when Congress specifically accepts from the permissible category of institutions that may receive these construction grants, divinity schools, it seems to me it is a very clear implication that grants are permitted for non-divinity school aspects of these church-related institutions. But if there's any question about this, I think it's completely dispelled by the legislative history in this case.
Hugo L. Black: Do you say that they make grants to the divinity schools?
Daniel M. Friedman: No, they are-- they cannot make. They specifically cannot make grants to divinity schools under this statute. What I suggested is the existence of that exception is rather strong evidence, we think, that Congress recognized that grants could be made to non-divinity school institutions that were connected with religious organizations. But, the legislative history on this, it seems to me, is really clear beyond any doubt. First of all, there are a number of people who testified during the course of the debates in Congress that in order to accomplish the necessary expansion of the educational facilities, the private non-religiously affiliated and the public higher education institutions in this country would not be enough. They'd need to have to call upon the existing facilities of the religious institutions, and while it was considerable debate that during the course of this legislation over the wisdom and constitutionality of these grants, there was nobody who suggested that the statute did not cover grants to these institutions. Indeed, it's exactly to the opposite because several of the sponsors of the legislation explicitly stated during the course of the debate that this statute does cover religiously affiliated institutions and, indeed, in both the House and the Senate, an amendment was proposed that would've excluded grants to religiously affiliated institutions and that amendment was defeated by a voice vote -- tele vote in both instances.
Warren E. Burger: Mr. Friedman, somewhere along the line, tell me whether there's any implication in the fact that your brief did not cite Bradfield.
Daniel M. Friedman: Now, Mr. Justice, there was no implication. In all candor, I'd have to confess there was perhaps an oversight because I think that is a persuasive authority and, if I may, may I cite another case that we have not cited in our brief which refers to Bradford, and that is a case called Quick Bear v. Leupp, in 210 U.S. 50, and that was a case which involved the validity of grants by the Secretary of the Interior of Indian Trust Funds to be used to sponsor and send Indian children to a parochial mission school on an Indian reservation. This was attacked on a number of grounds, including the constitutional ground. Now, the Court disposed off the constitutional question in one sentence. Citing the Bradford case, the Court said it is not contended that it is unconstitutional and it could not be.
Hugo L. Black: Which Court said that?
Daniel M. Friedman: This Court, Mr. Justice.
Hugo L. Black: In what case?
Daniel M. Friedman: A case called Quick Bear v. Leupp in 210 U.S. in 1908.
Hugo L. Black: What time was it--
Daniel M. Friedman: Pardon me?
Hugo L. Black: When was that decided?
Daniel M. Friedman: 1908, more than 60 years ago.
William J. Brennan, Jr.: Mr. Friedman, grants to non-religiously affiliated schools, had they exceeded an amount the grants to religiously affiliated schools?
Daniel M. Friedman: Yes. Let me give -- just tell, give you some rough figures on that. The record shows that the total grants, since they started making grants in 1965, have been about $1.5 billion. The best estimate they give is that roughly 15% of those grants have been to religiously affiliated schools. Another 15% have been to non-religiously affiliated private schools and the remaining 70% roughly have been to public schools which may include state universities, community colleges, technical colleges.
William J. Brennan, Jr.: And I take it the commitment, which you mentioned earlier, not to use, to teach religion and so forth, is that limited to a commitment by the religiously affiliated schools?
Daniel M. Friedman: No. That--
William J. Brennan, Jr.: Everyone has to make it?
Daniel M. Friedman: That is across the board and, indeed, the specific forms which they have to fill out in order to qualify for the grants, these documents, repeatedly point this out to them and they are required to make these representations, along with many others, with respect to the way the facility will be constructed.
Thurgood Marshall: Does the legislative history show whether there were any statements or many statements to the effect that the church schools could not continue to run without government support?
Daniel M. Friedman: There was not in connection -- no, this Bill, Mr. Justice, was not directed to that issue. This was just directed, of course, to institutions of higher education.
Thurgood Marshall: Well, does it show anything about that?
Daniel M. Friedman: No, it does-- what it shows, Mr. Justice, is that the belief of the Congress that the necessary expansion of higher education facilities could not be accomplished without the participation of the religiously affiliated institutions.
Thurgood Marshall: Why?
Daniel M. Friedman: Because there just wasn't enough capacity available with the existence--
Thurgood Marshall: Available, but they've been building it, haven't they?
Daniel M. Friedman: Well, it was just the thing that -- it's one thing, I suggest, Mr. Justice, to try to create a new institution. It's another to increase the capacity of existing institutions, and Congress decided that the best way to deal with this problem facing American higher education was to attempt to increase the capacity of the existing institutions that already had the experience in this area. Now, if I may turn to the --
Warren E. Burger: Before you turn, let me just ask you one thing about the surveillance question.
Daniel M. Friedman: Yes.
Warren E. Burger: Suppose three years after grant were made and the building built for chemistry and mathematics and biology, it suddenly developed that all those subjects had been abandoned and it was being used for divinity school. I suppose the government would do something about that, wouldn't it?
Daniel M. Friedman: Yes, we would do one of two things. We would, as soon as we found out about it, the first thing we'd do is to tell them to stop it, and if they were reluctant to stop it and refused to stop it, we would then tell them that they had to refund, give us back some money. And, I suppose if they, in effect, said “we won't do either,” we would then take whatever steps had to be done.
Warren E. Burger: I suppose maybe an eviction proceeding.
Daniel M. Friedman: Conceivably an eviction proceeding, conceivably a suggestion of some sort of forfeit -- well, I don't know if we could forfeit the land, but certainly we could go against him and I suppose sue them, in effect, for breach of contract and get us some measure of damages, - whatever the amount was that we had contributed.
Warren E. Burger: Then, if I may pursue that fact, carrying it over to the Everson case, suppose it developed after school buses were provided to take elementary children to school, it was learned that a religious teacher was put on the bus every morning so that they wouldn't lose this time when they were reciting the Lord's Prayer and singing religious hymns and listening to religious instruction. I suppose that would be stopped too, wouldn't it?
Daniel M. Friedman: I would suppose they would say -- presumably would say they would not extend any subsidies to parents as long as the bus was being used for that purpose.
Warren E. Burger: Does the one in your mind, under the Everson situation, call for any more government surveillance of the religious institution than the other?
Daniel M. Friedman: I don't think so, Mr. Chief Justice.
Warren E. Burger: I suppose as soon as this deviation occurred, there'd be a great many people calling attention to it.
Daniel M. Friedman: Well, that's right. For example, the record shows, the way they found out about one of these three cases that I have referred to is someone sending a newspaper clipping to the Office of Education containing a story on the use of one of these facilities, as apparently is a chapel, for holding religious exercise.
William J. Brennan, Jr.: Mr. Friedman, is there anything in the legislative history indicating there was consideration of whether building more colleges, more universities was or was not an alternative -- a more acceptable alternative than using religiously affiliated schools?
Daniel M. Friedman: I don't think it was focused that specifically. I don't -- I cannot be sure of that, Mr. Justice, because I haven't read, frankly, all of the debates that are very lengthy, but the debates I have read indicate that there was a recognition of, as I have indicated, of the fact that the capacity was needed and that the religiously affiliated schools for a long time had been an essential portion of American higher education.
William J. Brennan, Jr.: And rather better to expand their facilities than to build new ones?
Daniel M. Friedman: I can't go so far as to say that, but I -- what I do suggest is, it seems to me, this is quite clearly implicit in a congressional judgment to structure the statute this way. It can't --
Byron R. White: Does it participate in the Harrisman (ph) case in Maryland?
Daniel M. Friedman: The government? No, we did not, Mr. Justice.
Byron R. White: Are you going to say something about that case?
Daniel M. Friedman: Yes, I would be happy to say right now that I think it fits into--
Byron R. White: It was cited only once, I guess. It was cited as a comparative case.
Daniel M. Friedman: Yes, the appellants relied very heavily on the Harrisman (ph) standard. We think that the Harriman standard applied by the Maryland Court of Appeals in the Harriman case which was a determination whether the institution, as an entity, was primarily sectarian or primarily secular. We do not think that is the test that this Court has consistently applied in dealing with the Establishment Clause.
Byron R. White: Didn't we dismiss that?
Daniel M. Friedman: Well, there were two things. You denied the petition for certiorari in one of them and you dismissed the appeal in the other. There were two cases.
William O. Douglas: When you say we hadn't persistently done anything--[Attempt to laughter] We only talked about two cases.
Daniel M. Friedman: Well, Mr. Justice, I would suggest I'm talking about four because I'd like to--
William O. Douglas: In Everson, in Walz, what else?
Daniel M. Friedman: Everson, Walz-- we start with the test which is the purpose and primary effect test. That test was formulated in 1963 in Schempp. That test was used three times more. In 1968, the Court applied the purpose and primary effect test in the Allen case. In the same year, it applied the same test in the Everson case involving the validity of the Arkansas Anti-Evolution statute and then, last year, in the Walz case. Although it didn't quote the language of that purpose and effect test, it did use that language and cited the case at that point.
William J. Brennan, Jr.: You're saying really that there's only one test that we've persistently applied and that's the purpose and effect test.
Daniel M. Friedman: That is correct, Mr. Justice, and let me say with response to Mr. Pfeffer's contention that, somehow, Everson is the test and that if this Court is going to drop Everson now, it should do so explicitly. In the Schempp case, when the Court first annunciated the purpose and primary effect test immediately, after quoting the language which we rely on, it cited the Everson case. So, obviously, the Court must have believed that the purpose and effect test, it was their announcing represented an application of the somewhat broader generalized principles that the Court announced in Everson. Now, the appellants' argument, the appellants' attack on the purpose and effect test rest almost exclusively on the notion that, somehow, the secular and the sectarian are so intertwined that any meaningful separation is impossible. I think the Court crossed that bridge in the Allen case where it rejected the notion that somehow you couldn't separate the secular and the sectarian. It recognized there that the religiously affiliated schools performed two distinct functions, and if it was felt there that there was no such permeation of the two, such intermingling of the two, when you're dealing with children in the primary and elementary schools where they're far more impressionable than to college students, certainly you cannot make that claim in this context, where we are dealing with students in college and, indeed, couple of these universities have graduate schools. The purpose here is plainly secular. There can be no question of that. It was designed to accomplish an expansion, a desperately needed expansion of the facilities available for higher education.
Potter Stewart: Facilities as defined in the legislation includes only buildings, does it not?
Daniel M. Friedman: Buildings or certain equipment. For example--
Potter Stewart: For a building?
Daniel M. Friedman: Yes. For example, one of the grants here involved a foreign language laboratory and it also excludes certain types of building. For example, the kid couldn't ordinarily give a grant for athletic facilities unless this was part of a course in physical education.
Potter Stewart: Does it include books? Could it include books?
Daniel M. Friedman: I don't believe -- not books, Mr. Justice. Not books. It does include libraries because two of these grants are for a library.
Potter Stewart: Libraries has two meanings. It means a collection of books or a building in which books are held.
Daniel M. Friedman: Now, this means a facility -- this means, the building in which the books are housed. That's all they give. These are grants for facilities, for physical facilities to be used --
Potter Stewart: Building structures plus certain equipment for it.
Daniel M. Friedman: Yes, and I would just like to say one last thing in conclusion because I have to turn the argument over to my co-counsel that the statute -- the test is the primary effect. Now, of course, this statute, these grants obviously do help the church-affiliated institutions. They help them in much the same way that the parochial schools were aided by subsidizing the parents for the bus fares in Everson, that they are aided by paying for the books in Allen. But, the critical thing, it seems to us, is the primary effect and the primary effect here while it helps the religious schools does not constitute a forbidden government intervention, consider it an actual government support in furthering of religion as such. The government, here, does maintain its neutral position toward religion and we think that the way this statute is structured, it does permit room for that benevolent play of the joints which this Court indicated last year in Walz as one of the essential elements under the Establishment Clause.
Warren E. Burger: Thank you, Mr. Friedman. Mr. Ahern, you have five minutes, but we'll have a few minutes over if necessary to let you plead today.
F. Michael Ahern: I think I could finish in that time, Mr. Chief Justice. Mr. Chief Justice and may it please the Court. Since the interest of the State of Connecticut in this case is identical to the interest of the United States government, we subscribe to the arguments advanced by the government in its briefs and in oral argument here this morning. In addition, I should like to point out one or two aspects of the case, very briefly, which we think the Court should consider carefully. Now, while the appellants in this case have stated that they brought this action, they could've brought this action in any state of the United States. The fact remains that they brought the action against four colleges in the State of Connecticut and named the State of Connecticut as a defendant in the case. While we have not officially sought to represent all of the states in this matter, we feel that by being named the defendant in the case, we have been cast in the role of representative without portfolio for all of the states in this area. Incidentally, this role seems quite appropriate in this place because Connecticut is known as the Constitution State. I want to emphasize to the Court that each of the states in the United States are participating in this grant program and are vitally interested in seeing that federal funds continue to flow under this Act to the states to enlarge and expand educational facilities in order to accommodate the rapidly growing numbers of young people aspiring to higher education. I should also like to direct the Court's attention to the fact that, in view of the state of the congressional record, when this Act was being considered, I don't think it can be seriously contended by appellants that Congress intended to violate the Establishment Clause of the constitution by providing federal funds to religion. The congressional purpose clearly stated, in debate and in Section 701 of the Act, was to meet an educational crisis by providing funds for academic facilities to further the educational development of its citizenry which would be beneficial to the whole nation. We submit it was to implement that national purpose that the Act was adopted, and it was to advance that purpose that the states have participated in the grant program. I would also like to point out that Congress evidently anticipated the recent holding of this case -- Court in the Walz decision to the effect that excessive entanglement by the government in administration of religion might make the legislation declare it unconstitutional. Under the Act under consideration here, each state was required to establish an agency for the purpose of screening grant applications and establishing priorities among projects within the state. However, the states were given no authority to adopt supplemental guidelines with respect to hiring practices or for inspection procedures subsequent to construction. The state's responsibility and authority terminated when the application was approved and submitted to the US Commissioner of Education. In like manner, the Congress provided in Section 757 of the Act that the United States Government could not become involved in “the personnel, curriculum, methods of instruction, or administration of the colleges which received grants.” The sole responsibility and authority of the government, after completion of construction, was to determine for a period of 20 years by on-site inspection whether the facility was being used for the purpose for which it was constructed, that is, education rather than being used for religious purposes. Accordingly, I submit that Congress could not have done more to avoid entanglement with religion by the federal government of the states.
Speaker: What's the total now of these religious institutions in Connecticut who received since the Act?
F. Michael Ahern: I don't recall exactly how much was received by all of the church-related institutions in Connecticut, but it's only a portion of the building cost for each project, Justice Harlan.
Speaker: You don't have the dollar figure?
F. Michael Ahern: I don't have the dollar figure. I believe Mr. Williams will have that for the Court tomorrow. In conclusion, I would just like to state that counsel for the appellants here this afternoon has made an issue, and quite a significant issue, of the fact that he has labeled the four colleges in this case sectarian, whereas, the appellees refer to them as church-related, and he indicated that he was consistent throughout the case in labeling them and calling them sectarian. I would refer the Court to page 99 of the appendix in which the stipulation entered into between counsel for the appellants and the State of Connecticut is set forth, and further direct the Court's attention to paragraph 16 in which we considered and used and agreed upon the following language. “The Commission and members thereof have had occasion to consider questions raised concerning the constitutionality of grants to church-related institutions on at least several occasions.” So, I submit that counsel for the appellants, on occasion, has used the term church-related in referring to these institutions. Thank you.
Warren E. Burger: Thank you, Mr. Ahern.


Earl Warren: Number 21, McElroy, Secretary of Defense, et al., Petitioners, versus United States, in relation of Dominic Guagliardo. Mr. Schuchat, you may proceed.
Michael A. Schuchat: Mr. Chief Justice, may it please the Court. At the recess yesterday, I was pointing out the fact that a soldier cannot quit whereas a civilian employees such Guagliardo has the privilege of quitting his employment. And Mr. Justice Black in part what the situation would be if there were enlistment at will rather than enlistment for a fixed term. Now the -- of course as the hypothetical question changes the facts, but even in that situation, a soldier would be subject to discipline and would have -- have to obey orders whereas his situation would be different from Guagliardo who was simply an employee. The relationship of Guagliardo to the service is simply an employer-employee relationship. In fact until after World War II, it was never thought that the relationship was such that it should subject him to court-martial jurisdiction. Illustrative of that is the decision of this Court in Duncan versus Kahanamoku. In that case which involved the military's power to court-martial in Hawaii in time of war, that petitioner Duncan was a civilian employee of the navy who was a ship bidder at the Navy Yard at Pearl Harbor. He was -- and precisely -- had precisely the same status as Guagliardo. The other petitioner was a civilian stockbroker, named White. Now White's crime was embezzling some stock belonging to another civilian. Duncan's crime was engaging with -- in a brawl with the marine sentry at the gate of Pearl Harbor Navy Yard. This Court said that they were both civilians not connected with the service and entitled to the rights of civilians. Now, it seems to me that if the navy could not court-martial Duncan in time of war in Hawaii then certainly the Air Force cannot court-martial Guagliardo and Morocco in time of peace. Now I will pass over the historical problem because I think it's necessary to read the historical material cited in the briefs. I don't have a time here, but if -- I think that when read the materials, you will be convince that there is no historical precedent for this type of jurisdiction, but essentially the Government's case is predicated on necessity. They say that the practical necessity overrides everything else and justifies the jurisdiction. Our position is that the necessity is irrelevant, but assuming that the necessity is considered, the Government has not made out a case of necessity such as would justify this extraordinary jurisdiction. The Government's case for necessity is based primarily on the replies which it received from various military commanders throughout the world which were reprinted in one of its briefs in the Covert case. And this -- these replies are adopted again in this case. Now if you examine the replies of the various military commanders whose -- which are printed in those briefs, you will see that the primary problem which they have consists of black market offenses and traffic offenses. This is -- this is over 80% of the number of crimes. Now it's obvious that a traffic offense is a problem of the host country. It's a violation of a host country's laws and will be prosecuted by the host country. Similarly, black market offenses are violations of the host country's laws. They're probably not even a violation of the United States law and they will be prosecuted by the host country. Of course, the United States is concerned that our people, any American abroad not violate the law and that we are concerned with the economic condition of our allies where we have troop stationed, but this is not primarily the concern of the defense department and it certainly should not give rise to court-martial jurisdiction. Now the Government then points to cases such as security cases, involving classified information. These cases are obviously extremely rare. They can very easily be prosecuted in the United States. I say that they're rare not because I have the figures, because the figures have never been made known, but if they were of any real concern to the Defense Department, the Defense Department after the Covert decision would have gone to Congress and would have had the slight change in the statute which was probably necessary to make them triable in the United States. And in addition, it would seem to me that in offense involving disclosure of classified information abroad is so serious that it should be tried in an Article 3 Court. Now, the Government also contends that cases involving only United States citizens or only property of the United States will not be tried by the host country. They say that the host country won't be interested in it. The fact of the matter is that is this is proven in the very cases which were before this Court now. In Guagliardo, the crime involved stealing property of the United States. The Morocco Nationals who were charged with the conspiracy were tried by the Moroccan Government. Certainly, disapproving the thought that they're allies are not interested in people who steal from the United States. So far as crimes involving only Americans, the -- the facts in the Grisham case, which is the fourth case before Your Honors, will show that the French Government was -- was quite reluctant to let the American military try them and had Grisham not been court-martial, he would have certainly been tried by the French Government.
Felix Frankfurter: But it wasn't -- insofar as this argument is relevant on either side, wasn't there a very strong, a powerful feeling in Congress against trial that the Americans could be tried by -- by our tribunals against their being tried under what was rather, I thought a rather chauvinistic attitude on the part of many Congressmen that you can't get their trials in -- in the various host countries.
Michael A. Schuchat: There -- there was -- such sentiment of course was voiced in Congress not at the time that Uniformed Code of Military Justice --
Felix Frankfurter: No.
Michael A. Schuchat: -- was passed.
Felix Frankfurter: I'm not talking about -- having the source of the State of the Court for agreement --
Michael A. Schuchat: Yes.
Felix Frankfurter: -- that they were very unwilling to give permissive jurisdiction of the host countries. Wasn't there a very strong feeling that's been involved?
Michael A. Schuchat: There was and I agree that it's quite chauvinistic in the -- I will point out in this --
Felix Frankfurter: That doesn't make it less congressional because it's chauvinistic.
Michael A. Schuchat: No sir. I would point out to Your Honor that so far as Morocco was concerned, in 1956, the United States Government with congressional approval gave up its consulate court in Morocco subjecting all for the first time. Subjecting Americans to Moroccan courts and it would seem to me this happened in 1956. It would seem to me the Government cannot now come in and somehow say that the Moroccans dispense an inferior brand of justice, and it's wrong to subject the Americans to Moroccan courts because we could very easily have retained that jurisdiction.
Felix Frankfurter: I think you're taking a lot of territory where you take it very easily. That involves a lot of other factors that under our present consideration about the whole -- the whole problem with capitulation that there's --
Michael A. Schuchat: Yes Your Honor, but -- but it's indicative that the Moroccan justice was not so inferior as --
Felix Frankfurter: I didn't suggest it was.
Earl Warren: As a matter of curiosity, what happened to the defendants who were tried in the Morocco courts?
Michael A. Schuchat: That is not in the record, Mr. Chief Justice. Now, the -- the Government also has no explanation for why employees of the Defense Department abroad should be treated differently from other employees of the United States abroad. Foreign nationals who were employed by the Defense Department abroad and there are a very large number, the Government disputes to figure of a 188,000 which I found in the congressional record, but in any event, it's a very substantial number. These people do precisely the same work as many -- as Guagliardo and many others. They have the same access to our basis as Guagliardo does and the Government has no court-martial jurisdiction over them. And the Government -- the armed forces abroad are able to carry out their function and carry out their mission without this court-martial jurisdiction. Similarly there are large numbers of Americans employed by other agencies of the United States. The -- the figure from the congressional record is 60,000 which the Government says is inflative, but in any event it's a very large number. These other departments of the Government do not have court-martial jurisdiction. They've never had court-martial jurisdiction. They're able to carry out their functions without court-martial jurisdiction. In addition --
Earl Warren: Finish your finish your statement.
Michael A. Schuchat: In addition, of course, there are -- there are also Americans who are abroad as tourists and Americans abroad employed by private concerns who are as always subject to the foreign country's jurisdiction.
Earl Warren: I understand that you say that about 160,000 department of defense civilians over there who are not considered as subject to court-martial and who are tried by the Court's elimination over that?
Michael A. Schuchat: That -- that's right, Mr. Chief Justice. It's -- the figure I had was 188,000.
Earl Warren: 188, very well.