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MR. JUSTICE CLARK delivered the opinion of the Court.
MR. JUSTICE BRENNAN, concurring.
MR. JUSTICE GOLDBERG, with whom MR. JUSTICE HARLAN joins, concurring.
MR. JUSTICE STEWART,
dissenting.
I join the opinion of the Court and add a few
words in explanation.
While the Free Exercise Clause of the First
Amendment is written in terms of what the State may not require
of the individual, the Establishment Clause, serving the same
goal of individual religious freedom, is written in different
terms.
Establishment of a religion can be achieved
in several ways. The church and state can be one; the church may
control the state or the state may control the church; or the
relationship may take one of several possible forms of a working
arrangement between the two bodies. 1
Under all of these arrangements the church typically has a place
in the state's budget, and church law usually governs such matters
as baptism, marriage, divorce and separation, at least for its
members and sometimes for the entire body politic. 2
Education, too, is usually high on the priority list of church
interests. 3 In the past schools
were often made the exclusive responsibility of the church. Today
in some state-church countries the state runs the public schools,
but compulsory religious exercises are often required of some
or all students. Thus, under the agreement Franco made with the
Holy See when he came to power in Spain, "The Church regained
its place in the national budget. It insists on baptizing all
children and has made the catechism obligatory in state schools."
4
The vice of all such arrangements under the
Establishment Clause is that the state is lending its assistance
to a church's efforts to gain and keep adherents. Under the First
Amendment it is strictly a matter for the individual and his church
as to what church he will belong to and how much support, in the
way of belief, time, activity or money, he will give to it. "This
pure Religious Liberty" "declared . . . [all forms of
church-state relationships] and their fundamental idea to be oppressions
of conscience and abridgments of that liberty which God and nature
had conferred on every living soul." 5
In these cases we have no coercive religious
exercise aimed at making the students conform. The prayers announced
are not compulsory, though some may think they have that indirect
effect because the nonconformist student may be induced to participate
for fear of being called an "odd-ball." But that coercion,
if it be present, has not been shown; so the vices of the present
regimes are different.
These regimes violate the Establishment Clause
in two different ways. In each case the State is conducting a
religious exercise; and, as the Court holds, that cannot be done
without violating the "neutrality" required of the State
by the balance of power between individual, church and state that
has been struck by the First Amendment. But the Establishment
Clause is not limited to precluding the State itself from conducting
religious exercises. It also forbids the State to employ its facilities
or funds in a way that gives any church, or all churches, greater
strength in our society than it would have by relying on its members
alone. Thus, the present regimes must fall under that clause for
the additional reason that public funds, though small in amount,
are being used to promote a religious exercise. Through the mechanism
of the State, all of the people are being required to finance
a religious exercise that only some of the people want and that
violates the sensibilities of others.
The most effective way to establish any institution
is to finance it; and this truth is reflected in the appeals by
church groups for public funds to finance their religious schools.
6 Financing a church either
in its strictly religious activities or in its other activities
is equally unconstitutional, as I understand the Establishment
Clause. Budgets for one activity may be technically separable
from budgets for others. 7
But the institution is an inseparable whole, a living organism,
which is strengthened in proselytizing when it is strengthened
in any department by contributions from other than its own members.
Such contributions may not be made by the State
even in a minor degree without violating the Establishment Clause.
It is not the amount of public funds expended; as this case illustrates,
it is the use to which public funds are put that is controlling.
For the First Amendment does not say that some forms of establishment
are allowed; it says that "no law respecting an establishment
of religion" shall be made. What may not be done directly
may not be done indirectly lest the Establishment Clause become
a mockery.
---- Begin EndNotes ----
1 See Bates, Religious Liberty: An Inquiry (1945), 9-14, 239-252; Cobb, Religious Liberty in America (1902), 1-2, cc. IV, V; Gledhill, Pakistan, The Development of its Laws and Constitution (8 British Commonwealth, 1957), 11-15; Keller, Church and State on the European Continent (1936), c. 2; Pfeffer, Church, State, and Freedom (1953), c. 2; I Stokes, Church and State in the United States (1950), 151-169.
2 See III Stokes, op. cit., supra, n. 1, 42-67; Bates, op. cit., supra, n. 1, 9-11, 58-59, 98, 245; Gledhill, op. cit., supra, n. 1, 128, 192, 205, 208; Rackman, Israel's Emerging Constitution (1955), 120-134; Drinan, Religious Freedom in Israel, America (Apr. 6, 1963), 456-457.
3 See II Stokes, op. cit., supra, n. 1, 488-548; Boles, The Bible, Religion, and the Public Schools (2d ed. 1963), 4-10; Rackman, op. cit., supra, n. 2, at 136-141; O'Brien, The Engel Case From A Swiss Perspective, 61 Mich. L. Rev. 1069; Freund, Muslim Education in West Pakistan, 56 Religious Education 31.
4 Bates, op. cit., supra, n. 1, at 18; Pfeffer, op. cit., supra, n. 1, at 28-31; Thomas, The Balance of Forces in Spain, 41 Foreign Affairs 208, 210.
5 Cobb, op. cit., supra, n. 1, at 2.
6 See II Stokes, op. cit., supra, n. 1, at 681-695.
7 See Accountants'
Handbook (4th ed. 1956) 4.8-4.15.
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