FREEDOM OF RELIGION

G.R. No. L-45459 March 13, 1937GREGORIO AGLIPAY,petitioner,vs.JUAN RUIZ,respondent.

Vicente Sotto for petitioner.Office of the Solicitor-General Tuason for respondent.LAUREL,J.:The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church, seeks the issuance from this court of a writ of prohibition to prevent the respondent Director of Posts from issuing and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress.

In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the issues of postage stamps commemorating the celebration in the City of Manila of the Thirty-third international Eucharistic Congress, organized by the Roman Catholic Church. The petitioner, in the fulfillment of what he considers to be a civic duty, requested Vicente Sotto, Esq., member of the Philippine Bar, to denounce the matter to the President of the Philippines. In spite of the protest of the petitioner's attorney, the respondent publicly announced having sent to the United States the designs of the postage stamps for printing as follows:

"In the center is chalice, with grape vine and stalks of wheat as border design. The stamps are blue, green, brown, cardinal red, violet and orange, 1 inch by 1,094 inches. The denominations are for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were actually issued and sold though the greater part thereof, to this day, remains unsold. The further sale of the stamps is sought to be prevented by the petitioner herein.

The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in the instant case, although he admits that the writ may properly restrain ministerial functions. While, generally, prohibition as an extraordinary legal writ will not issue to restrain or control the performance of other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and enforcement are regulated by statute and in this jurisdiction may issue to . . . inferior tribunals, corporations, boards, or persons, whether excercising functions judicial or ministerial, which are without or in excess of the jurisdiction of such tribunal, corporation, board, or person, . . . ." (Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used with reference to "functions" in the statute are undoubtedly comprehensive and include the challenged act of the respondent Director of Posts in the present case, which act because alleged to be violative of the Constitution isa fortiorari"without or in excess of . . . jurisdiction." The statutory rule, therefore, in the jurisdiction is that the writ of prohibition is not confined exclusively to courts or tribunals to keep them within the limits of their own jurisdiction and to prevent them from encroaching upon the jurisdiction of other tribunals, but will issue, in appropriate cases, to an officer or person whose acts are without or in excess of his authority. Not infrequently, "the writ is granted, where it is necessary for the orderly administration of justice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs. Fernandez [1923], 43 Phil., 304, 307.)

The more important question raised refers to the alleged violation of the Constitution by the respondent in issuing and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress. It is alleged that this action of the respondent is violative of the provisions of section 23, subsection 3, Article VI, of the Constitution of the Philippines, which provides as follows:

No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, secretarian, institution, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces or to any penal institution, orphanage, or leprosarium.

The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for ocassions might arise when the estate will use the church, and the church the state, as a weapon in the furtherance of their recognized this principle of separation of church and state in the early stages of our constitutional development; it was inserted in the Treaty of Paris between the United States and Spain of December 10, 1898, reiterated in President McKinley's Instructions of the Philippine Commission, reaffirmed in the Philippine Bill of 1902 and in the autonomy Act of August 29, 1916, and finally embodied in the constitution of the Philippines as the supreme expression of the Filipino people. It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the Government, from the highest to the lowest, in taking their oath to support and defend the constitution, bind themselves to recognize and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be stated that what is guaranteed by our Constitution is religious liberty, not mere religious toleration.

Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is not denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored "the aid ofDivine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy," they thereby manifested reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and denominations. Our Constitution and laws exempt from taxation properties devoted exclusively to religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec. 4, Ordinance appended thereto; Assessment Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest, preacher, minister or other religious teacher or dignitary as such is assigned to the armed forces or to any penal institution, orphanage or leprosarium 9 sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious instruction in the public schools is by constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation to sec. 928, Adm. Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and Sundays and made legal holidays (sec. 29, Adm. Code) because of the secular idea that their observance is conclusive to beneficial moral results. The law allows divorce but punishes polygamy and bigamy; and certain crimes against religious worship are considered crimes against the fundamental laws of the state (seearts. 132 and 133, Revised Penal Code).

In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in question under the provisions of Act No. 4052 of the Philippine Legislature. This Act is as follows:

No. 4052. AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND MAKING THE SAME AVAILABLE OUT OF ANY FUNDS IN THE INSULAR TREASURY NOT OTHERWISE APPROPRIATED FOR THE COST OF PLATES AND PRINTING OF POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER PURPOSES.

Be it enacted by the Senate and House of Rep

resentatives of the Philippines in Legislature assembled and by the authority of the same:

SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made immediately available out of any funds in the Insular Treasury not otherwise appropriated, for the costs of plates and printing of postage stamps with new designs, and other expenses incident thereto.

SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and Communications, is hereby authorized to dispose of the whole or any portion of the amount herein appropriated in the manner indicated and as often as may be deemed advantageous to the Government.

SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the Treasury.

SEC. 4. This act shall take effect on its approval.

Approved, February 21, 1933.

It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of plates and printing of postage stamps with new designs and other expenses incident thereto, and authorizes the Director of Posts, with the approval of the Secretary of Public Works and Communications, to dispose of the amount appropriated in the manner indicated and "as often as may be deemed advantageous to the Government". The printing and issuance of the postage stamps in question appears to have been approved by authority of the President of the Philippines in a letter dated September 1, 1936, made part of the respondent's memorandum as Exhibit A. The respondent alleges that the Government of the Philippines would suffer losses if the writ prayed for is granted. He estimates the revenue to be derived from the sale of the postage stamps in question at P1,618,17.10 and states that there still remain to be sold stamps worth P1,402,279.02.

Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the discretionary power to determine when the issuance of special postage stamps would be "advantageous to the Government." Of course, the phrase "advantageous to the Government" does not authorize the violation of the Constitution. It does not authorize the appropriation, use or application of public money or property for the use, benefit or support of a particular sect or church. In the present case, however, the issuance of the postage stamps in question by the Director of Posts and the Secretary of Public Works and Communications was not inspired by any sectarian denomination. The stamps were not issue and sold for the benefit of the Roman Catholic Church. Nor were money derived from the sale of the stamps given to that church. On the contrary, it appears from the latter of the Director of Posts of June 5, 1936, incorporated on page 2 of the petitioner's complaint, that the only purpose in issuing and selling the stamps was "to advertise the Philippines and attract more tourist to this country." The officials concerned merely, took advantage of an event considered of international importance "to give publicity to the Philippines and its people" (Letter of the Undersecretary of Public Works and Communications to the President of the Philippines, June 9, 1936; p. 3, petitioner's complaint). It is significant to note that the stamps as actually designed and printed (Exhibit 2), instead of showing a Catholic Church chalice as originally planned, contains a map of the Philippines and the location of the City of Manila, and an inscription as follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-7,1937." What is emphasized is not the Eucharistic Congress itself but Manila, the capital of the Philippines, as theseatof that congress. It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government. We are of the opinion that the Government should not be embarassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation. The main purpose should not be frustrated by its subordinate to mere incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)

We are much impressed with the vehement appeal of counsel for the petitioner to maintain inviolate the complete separation of church and state and curb any attempt to infringe by indirection a constitutional inhibition. Indeed, in the Philippines, once the scene of religious intolerance and prescription, care should be taken that at this stage of our political development nothing is done by the Government or its officials that may lead to the belief that the Government is taking sides or favoring a particular religious sect or institution. But, upon very serious reflection, examination of Act No. 4052, and scrutiny of the attending circumstances, we have come to the conclusion that there has been no constitutional infraction in the case at bar, Act No. 4052 grants the Director of Posts, with the approval of the Secretary of Public Works and Communications, discretion to misuse postage stamps with new designs "as often as may be deemed advantageous to the Government." Even if we were to assume that these officials made use of a poor judgment in issuing and selling the postage stamps in question still, the case of the petitioner would fail to take in weight. Between the exercise of a poor judgment and the unconstitutionality of the step taken, a gap exists which is yet to be filled to justify the court in setting aside the official act assailed as coming within a constitutional inhibition.

The petition for a writ of prohibition is hereby denied, without pronouncement as to costs. So ordered.

G.R. No. L-53487 May 25, 1981

ANDRES GARCES, Reverend Father SERGIO MARILAO OSMEA, NICETAS DAGAR and JESUS EDULLANTES,petitioners,vs.Hon. NUMERIANO G. ESTENZO, Presiding Judge of the Court of First Instance of Leyte, Ormoc City Branch V, BARANGAY COUNCIL of Valencia, Ormoc City, Barangay Captain MANUEL C. VELOSO, Councilmen GAUDENCIO LAVEZARES, TOMAS CABATINGAN and MAXIMINO NAVARRO, Barangay Secretary CONCHITA MARAYA and Barangay Treasurer LUCENA BALTAZAR,respondents.

AQUINO,J.:1wph1.tThis case is about the constitutionality of four resolutions of the barangay council of Valencia, Ormoc City, regarding the acquisition of the wooden image of San Vicente Ferrer to be used in the celebration of his annual feast day. That issue was spawned by the controversy as to whether the parish priest or a layman should have the custody of the image.

On March 23, 1976, the said barangay council adopted Resolution No. 5, "reviving the traditional socio-religious celebration" every fifth day of April "of the feast day of Seor San Vicente Ferrer, the patron saint of Valencia".

That resolution designated the members of nine committees who would take charge of the 1976 festivity. lt provided for (1) the acquisition of the image of San Vicente Ferrer and (2) the construction of a waiting shed as the barangay's projects. Funds for the two projects would be obtained through the selling of tickets and cash donations " (Exh A or 6).

On March 26, 1976, the barangay council passed Resolution No. 6 which specified that, in accordance with the practice in Eastern Leyte, Councilman Tomas Cabatingan, the Chairman orhermano mayorof the fiesta, would be the caretaker of the image of San Vicente Ferrer and that the image would remain in his residence for one year and until the election of his successor as chairman of the next feast day.

It was further provided in the resolution that the image would be made available to the Catholic parish church during the celebration of the saint's feast day (Exh. B or 7).

Resolutions Nos. 5 and 6 were submitted to a plebiscite and were duly ratified by the barangay general assembly on March 26, 1976. Two hundred seventy-two voters ratified the two resolutions (Exh. 2 and 5).

Funds were raised by means of solicitations0 and cash donations of the barangay residents and those of the neighboring places of Valencia. With those funds, the waiting shed was constructed and the wooden image of San Vicente Ferrer was acquired in Cebu City by the barangay council for four hundred pesos (Exh. F-l, 3 and 4).

On April 5, 1976, the image was temporarily placed in the altar of the Catholic church of Barangay Valencia so that the devotees could worship the saint during the mass for the fiesta.

A controversy arose after the mass when the parish priest, Father Sergio Marilao Osmea refused to return that image to the barangay council on the pretext that it was the property of the church because church funds were used for its acquisition.

Several days after the fiesta or on April 11, 1976, on the occasion of his sermon during a mass, Father Osmea allegedly uttered defamatory remarks against the barangay captain, Manuel C. Veloso, apparently in connection with the disputed image. That incident provoked Veloso to file against Father Osmea in the city court of Ormoc City a charge for grave oral defamation.

Father Osmea retaliated by filing administrative complaints against Veloso with the city mayor's office and the Department of Local Government and Community Development on the grounds of immorality, grave abuse of authority, acts unbecoming a public official and ignorance of the law.

Meanwhile, the image of San Vicente Ferrer remained in the Catholic church of Valencia. Because Father Osmea did not accede to the request of Cabatingan to have custody of the image and "maliciously ignored" the council's Resolution No. 6, the council enacted on May 12, 1976 Resolution No. 10, authorizing the hiring of a lawyer to file a replevin case against Father Osmea for the recovery of the image (Exh. C or 8). On June 14, 1976, the barangay council passed Resolution No. 12, appointing Veloso as its representative in the replevin case (Exh. D or 9).

The replevin case was filed in the city court of Ormoc City against Father Osmea and Bishop Cipriano Urgel (Exh. F). After the barangay council had posted a cash bond of eight hundred pesos, Father Osmea turned over the image to the council (p. 10, Rollo). ln his answer to the complaint for replevin, he assailed the constitutionality of the said resolutions (Exh. F-1).

Later, he and three other persons, Andres Garces, a member of the Aglipayan Church, and two Catholic laymen, Jesus Edullantes and Nicetas Dagar, filed against the barangay council and its members (excluding two members) a complaint in the Court of First Instance at Ormoc City, praying for the annulment of the said resolutions (Civil Case No. 1680-0).

The lower court dismissed the complaint. lt upheld the validity of the resolutions. The petitioners appealed under Republic Act No. 5440. The petitioners contend that the barangay council was not duly constituted because lsidoro M. Maago, Jr., the chairman of the kabataang barangay, was not allowed to participate in its sessions.

Barangays used to be known as citizens assemblies (Presidential Decrees Nos. 86 and 86-A). Presidential Decree No. 557, which took effect on September 21, 1974, 70 O.G. 8450-L, directed that all barrios should be known as barangays and adopted the Revised Barrio Charter as the Barangay Charter.

Barrios are units of municipalities or municipal districts in which they are situated. They are quasi-municipal corporations endowed with such powers" as are provided by law "for the performance of particular government functions, to be exercised by and through their respective barrio governments in conformity with law" (Sec. 2, Revised Barrio Charter, R.A. No. 3590).

The barrio assembly consists of all persons who are residents of the barrio for at least six months, eighteen years of age or over and Filipino citizens duly registered in the list kept by the barrio secretary (Sec. 4,Ibid).

The barrio council, now barangay council, is composed of the barangay captain and six councilmen (Sec. 7, Ibid). Section 3 of Presidential Decree No. 684, which took effect on April 15, 1975, provides that "the barangay youth chairman shall be anex-officiomember of the barangay council", having the same powers and functions as a barangay councilman.

In this case, Maago, the barangay youth chairman, was notified of the sessions of the barangay council to be held on March 23 and 26, 1976 but he was not able to attend those sessions because he was working with a construction company based at Ipil, Ormoc City (Par. 2[d] Exh. 1).

Maago's absence from the sessions of the barangay council did not render the said resolutions void. There was a quorum when the said resolutions were passed.

The other contention of the petitioners is that the resolutions contravene the constitutional provisions that "no law shall be made respecting an establishment of religion" and that "no public money or property shall ever be appropriated, applied, paid, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such. except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium (Sec. 8, Article IV and sec. 18[2], Article VIII, Constitution).

That contention is glaringly devoid of merit. The questioned resolutions do not directly or indirectly establish any religion, nor abridge religious liberty, nor appropriate public money or property for the benefit of any sect, priest or clergyman. The image was purchased with private funds, not with tax money. The construction of a waiting shed is entirely a secular matter.

Manifestly puerile and flimsy is Petitioners argument that the barangay council favored the Catholic religion by using the funds raised by solicitations and donations for the purchase of the patron saint's wooden image and making the image available to the Catholic church.

The preposterousness of that argument is rendered more evident by the fact that counsel advanced that argument in behalf of the petitioner, Father Osmea the parish priest.

The wooden image was purchased in connection with the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with religious matters or the religious beliefs of the barrio residents. One of the highlights of the fiesta was the mass. Consequently, the image of the patron saint had to be placed in the church when the mass was celebrated.

If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio, then any activity intended to facilitate the worship of the patron saint (such as the acquisition and display of his image) cannot be branded as illegal.

As noted in the first resolution, the barrio fiesta is a socio-religious affair. Its celebration is an ingrained tradition in rural communities. The fiesta relieves the monotony and drudgery of the lives of the masses.

The barangay council designated a layman as the custodian of the wooden image in order to forestall any suspicion that it is favoring the Catholic church. A more practical reason for that arrangement would be that the image, if placed in a layman's custody, could easily be made available to any family desiring to borrow the image in connection with prayers and novenas.

The contradictory positions of the petitioners are shown in their affidavits. Petitioner Garces swore that the said resolutionsfavored the Catholic church. On the other hand, petitioners Dagar and Edullantes swore that the resolutionsprejudiced the Catholicsbecause they could see the image in the church only once a year or during the fiesta (Exh. H and J).

We find that the momentous issues of separation of church and state, freedom of religion annd the use of public money to favor any sect or church are not involved at all in this case even remotely or indirectly. lt is not a microcosmic test case on those issues.

This case is a petty quarrel over the custody of a saint's image. lt would never have arisen if the parties had been more diplomatic and tactful and if Father Osmea had taken the trouble of causing contributions to be solicited from his own parishioners for the purchase ofanother imageof San Vicente Ferrer to be installed in his church.

There can be no question that the image in question belongs to the barangay council. Father Osmea claim that it belongs to his church is wrong. The barangay council, as owner of the image, has the right to determine who should have custody thereof.

If it chooses to change its mind and decides to give the image to the Catholic church. that action would not violate the Constitution because the image was acquired withprivate fundsand is its private property.

The council has the right to take measures to recover possession of the image by enacting Resolutions Nos. 10 and 12.

Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property.

InAglipay vs. Ruiz, 64 Phil. 201, what was involved was Act No. 4052 which appropriated sixty thousand pesos for the cost of plates and the printing of postage stamps with new designs. Under the law, the Director of Posts, with the approval of the Department Head and the President of the Philippines, issued in 1936 postage stamps to commemorate the celebration in Manila of the 33rd International Eucharistic Congress sponsored by the Catholic Church.

The purpose of the stamps was to raise revenue and advertise the Philippines. The design of the stamps showed a map of the Philippines and nothing about the Catholic Church. No religious purpose was intended.

Monsignor Gregorio Aglipay, the founder and head of the Philippine Independent Church, sought to enjoin the sale of those commemorative postage stamps.

It was held that the issuance of the stamps, while linked inseparably with an event of a religious character, was not designed as a propaganda for the Catholic Church. Aglipay's prohibition suit was dismissed.

The instant case is easily distinguishable fromVerzosa vs. Fernandez, 49 Phil., 627 and 55 Phil. 307, where a religious brotherhood, La Archicofradia del Santisimo Sacramento, organized for the purpose of raising funds to meet the expenses for the annual fiesta in honor of the Most Holy Sacrament and the Virgin Lady of Guadalupe, was held accountable for the funds which it held as trustee. 0

Finding that the petitioners have no cause of action for the annulment of the barangay resolutions, the lower court's judgment dismissing their amended petition is affirmed. No costs.

SO ORDERED.

ABINGTON SCHOOL DISTRICT V SCHEMPP374 U.S. 203; 83 S.Ct. 1560; 10 L.Ed. 2d. 844 (1963)

Vote: 81

This is one of the controversial school prayer decisions handed down by the Warren Court during the early 1960s.Edward and Sidney Schempp, members of the Unitarian religion and parents of children attending a public high school, brought suit to challenge the official practice of opening the school day with Bible reading and recitation of the Lords Prayer.A three-judge panel of the U.S. District Court for the Eastern District of Pennsylvania held the practice unconstitutional under the Establishment Clause of the First Amendment. The school district appealed.Mr. Justice Clarkdelivered the opinion of the Court.

. . .On each school day at the Abington Senior High School . . . opening exercises are conducted pursuant to [state law]. The exercises are broadcast into each room in the school building through an intercommunications system and are conducted under the supervision of a teacher by students attending the schools radio and television workshop. Selected students from this course gather each morning in the schools workshop studio for the exercises, which include readings by one of the students of 10 verses of the Holy Bible, broadcast to each room in the building. This is followed by the recitation of the Lords Prayer, likewise over the intercommunications system, but also by the students in the various classrooms, who are asked to stand and join in repeating the prayer in unison. The exercises are closed with the flag salute and such pertinent announcements as are of interest to the students. Participation in the opening exercises, as directed by the statute, is voluntary. The student reading the verses from the Bible may select the passages and read from any version he chooses, although the only copies furnished by the school are the King James version, copies of which were circulated to each teacher by the school district. During the period in which the exercises have been conducted the King James, the Douay and the Revised Standard versions of the Bible have been used, as well as the Jewish Holy Scriptures. There are no prefatory statements, no questions asked or solicited, no comments or explanations made and no interpretations given at or during the exercises. The students and parents are advised that the student may absent himself from the classroom or, should he elect to remain, not participate in the exercises. . . .

The wholesome neutrality of which this Courts cases speak . . . stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees. Thus, the two clauses may overlap. . . . [T]he Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof. The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. . . . The Free Exercise Clause, likewise considered many times here, withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority. Hence it is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion. The distinction between the two clauses is apparenta violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended.

Applying the Establishment Clause principles to the cases at bar we find that the States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lords Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the participation of teachers employed in those schools. . . . The trial court . . . has found that such an opening exercise is a religious ceremony and was intended by the State to be so. We agree with the trial courts finding as to the religious character of the exercises. Given that finding, the exercises and the law requiring them are in violation of the Establishment Clause. . . .

The conclusion follows that the laws require religious exercises and such exercises are being conducted in direct violation of the rights of the appellees and petitioners. Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. . . . Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, it is proper to take alarm at the first experiment on our liberties. . . .

It is insisted that unless these religious exercises are permitted a religion of secularism is established in the schools. We agree of course that the State may not establish a religion of secularism in the sense of affirmatively opposing or showing hostility to religion, thus preferring those who believe in no religion over those who do believe. . . . We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that ones education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories. They are religious exercises, required by the State in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.

Finally, we cannot accept that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those affected, collides with the majoritys right to free exercise of religion. While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs. . . .

The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment. Applying that rule to the facts of these cases, we affirm. . . .

Mr. Justice Douglas,concurring. . . .

Mr. Justice Goldberg,with whomMr. Justice Harlanjoins, concurring. . . .

Mr. Justice Stewart,dissenting.

I think the records in the two cases before us are so fundamentally deficient as to make impossible an informed or responsible determination of the constitutional issues presented. Specifically, I cannot agree that on these records we can say that the Establishment Clause has necessarily been violated. But I think there exist serious questions under both that provision and the Free Exercise Clauseinsofar as each is imbedded in the Fourteenth Amendmentwhich require the remand of these cases for the taking of additional evidence. . . .

What our Constitution indispensably protects is the freedom of each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker, to believe or disbelieve, to worship or not worship, to pray or keep silent, according to his own conscience, uncoerced and unrestrained by government. It is conceivable that these school boards, or even all school boards, might eventually find it impossible to administer a system of religious exercises during school hours in such a way as to meet this constitutional standardin such a way as completely to free from any kind of official coercion those who do not affirmatively want to participate. But I think we must not assume that school boards so lack the qualities of inventiveness and good will as to make impossible the achievement of that goal.

I would remand both cases for further hearings.

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

Everson v. Board of Education of the Township of EwingNo. 52Argued November 20, 1946Decided February 10, 1947330 U.S. 1APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEYSyllabusPursuant to a New Jersey statute authorizing district boards of education to make rules and contracts for the transportation of children to and from schools other than private schools operated for profit, a board of education by resolution authorized the reimbursement of parents for fares paid for the transportation by public carrier of children attending public and Catholic schools. The Catholic schools operated under the superintendency of a Catholic priest and, in addition to secular education, gave religious instruction in the Catholic Faith. A district taxpayer challenged the validity under the Federal Constitution of the statute and resolution so far as they authorized reimbursement to parents for the transportation of children attending sectarian schools. No question was raised as to whether the exclusion of private schools operated for profit denied equal protection of the laws; nor did the record show that there were any children in the district who attended, or would have attended but for the cost of transportation, any but public or Catholic schools.

Held:1. The expenditure of tax raised funds thus authorized was for a public purpose, and did not violate the due process clause of the Fourteenth Amendment. Pp.330 U. S. 5-8.

2. The statute and resolution did not violate the provision of the First Amendment (made applicable to the states by the Fourteenth Amendment) prohibiting any "law respecting an establishment of religion." Pp.330 U. S. 8-18.

133 N.J.L. 350, 44 A.2d 333, affirmed.

Page 330 U. S. 2

In a suit by a taxpayer, the New Jersey Supreme Court held that the state legislature was without power under the state constitution to authorize reimbursement to parents of bus fares paid for transporting their children to schools other than public schools. 132 N.J.L. 98, 39 A.2d 75. The New Jersey Court of Errors and Appeals reversed, holding that neither the statute nor a resolution passed pursuant to it violated the state constitution or the provisions of the Federal Constitution in issue. 133 N.J.L. 350, 44 A.2d 333. On appeal of the federal questions to this Court,affirmed,p.330 U. S. 18.

Page 330 U. S. 3

MR. JUSTICE BLACK delivered the opinion of the Court.

A New Jersey statute authorizes its local school districts to make rules and contracts for the transportation of children to and from schools. [Footnote 1] The appellee, a township board of education, acting pursuant to this statute, authorized reimbursement to parents of money expended by them for the bus transportation of their children on regular busses operated by the public transportation system. Part of this money was for the payment of transportation of some children in the community to Catholic parochial schools. These church schools give their students, in addition to secular education, regular religious instruction conforming to the religious tenets and modes of worship of the Catholic Faith. The superintendent of these schools is a Catholic priest.

The appellant, in his capacity as a district taxpayer, filed suit in a state court challenging the right of the Board to reimburse parents of parochial school students. He

Page 330 U. S. 4

contended that the statute and the resolution passed pursuant to it violated both the State and the Federal Constitutions. That court held that the legislature was without power to authorize such payment under the state constitution. 132 N.J.L. 98, 39 A.2d 75. The New Jersey Court of Errors and Appeals reversed, holding that neither the statute nor the resolution passed pursuant to it was in conflict with the State constitution or the provisions of the Federal Constitution in issue. 133 N.J.L. 350, 44 A.2d 333. The case is here on appeal under 28 U.S.C. 344(a).

Since there has been no attack on the statute on the ground that a part of its language excludes children attending private schools operated for profit from enjoying State payment for their transportation, we need not consider this exclusionary language; it has no relevancy to any constitutional question here presented. [Footnote 2] Furthermore, if the exclusion clause had been properly challenged, we do not know whether New Jersey's highest court would construe its statutes as precluding payment of the school

Page 330 U. S. 5

transportation of any group of pupils, even those of a private school run for profit. [Footnote 3] Consequently, we put to one side the question as to the validity of the statute against the claim that it does not authorize payment for the transportation generally of school children in New Jersey.

The only contention here is that the state statute and the resolution, insofar as they authorized reimbursement to parents of children attending parochial schools, violate the Federal Constitution in these two respects, which to some extent overlap.First.They authorize the State to take by taxation the private property of some and bestow it upon others to be used for their own private purposes. This, it is alleged, violates the due process clause of the Fourteenth Amendment.Second.The statute and the resolution forced inhabitants to pay taxes to help support and maintain schools which are dedicated to, and which regularly teach, the Catholic Faith. This is alleged to be a use of state power to support church schools contrary to the prohibition of the First Amendment which the Fourteenth Amendment made applicable to the states.

First.The due process argument that the state law taxes some people to help others carry out their private

Page 330 U. S. 6

purposes is framed in two phases. The first phase is that a state cannot tax A to reimburse B for the cost of transporting his children to church schools. This is said to violate the due process clause because the children are sent to these church schools to satisfy the personal desires of their parents, rather than the public's interest in the general education of all children. This argument, if valid, would apply equally to prohibit state payment for the transportation of children to any nonpublic school, whether operated by a church or any other nongovernment individual or group. But the New Jersey legislature has decided that a public purpose will be served by using tax raised funds to pay the bus fares of all school children, including those who attend parochial schools. The New Jersey Court of Errors and Appeals has reached the same conclusion. The fact that a state law, passed to satisfy a public need, coincides with the personal desires of the individuals most directly affected is certainly an inadequate reason for us to say that a legislature has erroneously appraised the public need.

It is true that this Court has, in rare instances, struck down state statutes on the ground that the purpose for which tax raised funds were to be expended was not a public one.Loan Association v. Topeka,20 Wall. 655;Parkersburg v. Brown,106 U. S. 487;Thompson v. Consolidated Gas Utilities Corp.,300 U. S. 55. But the Court has also pointed out that this far-reaching authority must be exercised with the most extreme caution.Green v. Frazier,253 U. S. 233,253 U. S. 240. Otherwise, a state's power to legislate for the public welfare might be seriously curtailed, a power which is a primary reason for the existence of states. Changing local conditions create new local problems which may lead a state's people and its local authorities to believe that laws authorizing new types of public services are necessary to promote the general wellbeing

Page 330 U. S. 7

of the people. The Fourteenth Amendment did not strip the states of their power to meet problems previously left for individual solution.Davidson v. New Orleans,96 U. S. 97,96 U. S. 103-104;Barbier v. Connolly,113 U. S. 27,113 U. S. 31-32;Fallbrook Irrigation District v. Bradley,164 U. S. 112,164 U. S. 157-158.

It is much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose.Cochran v. Louisiana State Board of Education,281 U. S. 370; Holmes, J., inInterstate Ry. v. Massachusetts,207 U. S. 79,207 U. S. 87.Seeopinion of Cooley, J., inStuart v. School District No. 1 of Kalamazoo,30 Mich. 69 (1874). The same thing is no less true of legislation to reimburse needy parents, or all parents, for payment of the fares of their children so that they can ride in public busses to and from schools, rather than run the risk of traffic and other hazards incident to walking or "hitchhiking."See Barbier v. Connolly, supra,at113 U. S. 31.See also casescollected 63 A.L.R. 413; 118 A.L.R. 806. Nor does it follow that a law has a private, rather than a public, purpose because it provides that tax-raised funds will be paid to reimburse individuals on account of money spent by them in a way which furthers a public program.See Carmichael v. Southern Coal & Coke Co.,301 U. S. 495,301 U. S. 518. Subsidies and loans to individuals such as farmers and home owners, and to privately owned transportation systems, as well as many other kinds of businesses, have been commonplace practices in our state and national history.

Insofar as the second phase of the due process argument may differ from the first, it is by suggesting that taxation for transportation of children to church schools constitutes support of a religion by the State. But if the law is invalid for this reason, it is because it violates the First Amendment's prohibition against the establishment of religion

Page 330 U. S. 8

by law. This is the exact question raised by appellant's second contention, to consideration of which we now turn.

Second.The New Jersey statute is challenged as a "law respecting an establishment of religion." The First Amendment, as made applicable to the states by the Fourteenth,Murdock v. Pennsylvania,319 U. S. 105, commands that a state "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." These words of the First Amendment reflected in the minds of early Americans a vivid mental picture of conditions and practices which they fervently wished to stamp out in order to preserve liberty for themselves and for their posterity. Doubtless their goal has not been entirely reached; but so far has the Nation moved toward it that the expression "law respecting an establishment of religion" probably does not so vividly remind present-day Americans of the evils, fears, and political problems that caused that expression to be written into our Bill of Rights. Whether this New Jersey law is one respecting an "establishment of religion" requires an understanding of the meaning of that language, particularly with respect to the imposition of taxes. Once again, [Footnote 4] therefore, it is not inappropriate briefly to review the background and environment of the period in which that constitutional language was fashioned and adopted.

A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government-favored churches. The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife and persecutions, generated in large part by established sects determined to

Page 330 U. S. 9

maintain their absolute political and religious supremacy. With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, non-attendance at those churches, expressions of nonbelief in their doctrines, and failure to pay taxes and tithes to support them. [Footnote 5]

These practices of the old world were transplanted to, and began to thrive in, the soil of the new America. The very charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized these individuals and companies to erect religious establishments which all, whether believers or nonbelievers, would be required to support and attend. [Footnote 6] An exercise of

Page 330 U. S. 10

this authority was accompanied by a repetition of many of the old-world practices and persecutions. Catholics found themselves hounded and proscribed because of their faith; Quakers who followed their conscience went to jail; Baptists were peculiarly obnoxious to certain dominant Protestant sects; men and women of varied faiths who happened to be in a minority in a particular locality were persecuted because they steadfastly persisted in worshipping God only as their own consciences dictated. [Footnote 7] And all of these dissenters were compelled to pay tithes and taxes [Footnote 8] to support government-sponsored churches whose ministers preached inflammatory sermons designed to strengthen and consolidate the established faith by generating a burning hatred against dissenters.

Page 330 U. S. 11

These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. [Footnote 9] The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused their indignation. [Footnote 10] It was these feelings which found expression in the First Amendment. No one locality and no one group throughout the Colonies can rightly be given entire credit for having aroused the sentiment that culminated in adoption of the Bill of Rights' provisions embracing religious liberty. But Virginia, where the established church had achieved a dominant influence in political affairs and where many excesses attracted wide public attention, provided a great stimulus and able leadership for the movement. The people there, as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.

The movement toward this end reached its dramatic climax in Virginia in 1785-86 when the Virginia legislative body was about to renew Virginia's tax levy for the support of the established church. Thomas Jefferson

Page 330 U. S. 12

and James Madison led the fight against this tax. Madison wrote his great Memorial and Remonstrance against the law. [Footnote 11] In it, he eloquently argued that a true religion did not need the support of law; that no person, either believer or nonbeliever, should be taxed to support a religious institution of any kind; that the best interest of a society required that the minds of men always be wholly free, and that cruel persecutions were the inevitable result of government-established religions. Madison's Remonstrance received strong support throughout Virginia, [Footnote 12] and the Assembly postponed consideration of the proposed tax measure until its next session. When the proposal came up for consideration at that session, it not only died in committee, but the Assembly enacted the famous "Virginia Bill for Religious Liberty" originally written by Thomas Jefferson. [Footnote 13] The preamble to that Bill stated, among other things, that

"Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are

Page 330 U. S. 13

a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either . . . ; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern. . . ."

And the statute itself enacted

"That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief. . . . [Footnote 14]"

This Court has previously recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective, and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute.Reynolds v. United States, supra,at98 U. S. 164;Watson v. Jones,13 Wall. 679;Davis v. Beason,133 U. S. 333,133 U. S. 342. Prior to the adoption of the Fourteenth Amendment, the First Amendment did not apply as a restraint against the states. [Footnote 15] Most of them did soon provide similar constitutional protections

Page 330 U. S. 14

for religious liberty. [Footnote 16] But some states persisted for about half a century in imposing restraints upon the free exercise of religion and in discriminating against particular religious groups. [Footnote 17] In recent years, so far as the provision against the establishment of a religion is concerned, the question has most frequently arisen in connection with proposed state aid to church schools and efforts to carry on religious teachings in the public schools in accordance with the tenets of a particular sect. [Footnote 18] Some churches have either sought or accepted state financial support for their schools. Here again, the efforts to obtain state aid or acceptance of it have not been limited to any one particular faith. [Footnote 19] The state courts, in the main, have remained faithful to the language of their own constitutional provisions designed to protect religious freedom and to separate religions and governments. Their decisions, however, show the difficulty in drawing the line between tax legislation which provides funds for the welfare of the general public and that which is designed to support institutions which teach religion. [Footnote 20]

The meaning and scope of the First Amendment, preventing establishment of religion or prohibiting the free exercise thereof, in the light of its history and the evils it

Page 330 U. S. 15

was designed forever to suppress, have been several times elaborated by the decisions of this Court prior to the application of the First Amendment to the states by the Fourteenth. [Footnote 21] The broad meaning given the Amendment by these earlier cases has been accepted by this Court in its decisions concerning an individual's religious freedom rendered since the Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. [Footnote 22] There is every reason to give the same application and broad interpretation to the "establishment of religion" clause. The interrelation of these complementary clauses was well summarized in a statement of the Court of Appeals of South Carolina, [Footnote 23] quoted with approval by this Court inWatson v. Jones,13 Wall. 679,80 U. S. 730:

"The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority."

The "establishment of religion" clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining

Page 330 U. S. 16

or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."Reynolds v. United States, supra,at98 U. S. 164.

We must consider the New Jersey statute in accordance with the foregoing limitations imposed by the First Amendment. But we must not strike that state statute down if it is within the State's constitutional power, even though it approaches the verge of that power.See Interstate Ry. v. Massachusetts,Holmes, J.,supra,at207 U. S. 85,207 U. S. 88. New Jersey cannot, consistently with the "establishment of religion" clause of the First Amendment, contribute tax raised funds to the support of an institution which teaches the tenets and faith of any church. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith,because of their faith, or lack of it,from receiving the benefits of public welfare legislation. While we do not mean to intimate that a state could not provide transportation only to children attending public schools, we must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general state law benefits to all its citizens without regard to their religious belief.

Page 330 U. S. 17

Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State. The same possibility exists where the state requires a local transit company to provide reduced fares to school children, including those attending parochial schools, [Footnote 24] or where a municipally owned transportation system undertakes to carry all school children free of charge. Moreover, state-paid policemen, detailed to protect children going to and from church schools from the very real hazards of traffic, would serve much the same purpose and accomplish much the same result as state provisions intended to guarantee free transportation of a kind which the state deems to be best for the school children's welfare. And parents might refuse to risk their children to the serious danger of traffic accidents going to and from parochial schools the approaches to which were not protected by policemen. Similarly, parents might be reluctant to permit their children to attend schools which the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, public

Page 330 U. S. 18

highways and sidewalks. Of course, cutting off church schools from these services so separate and so indisputably marked off from the religious function would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.

This Court has said that parents may, in the discharge of their duty under state compulsory education laws, send their children to a religious, rather than a public, school if the school meets the secular educational requirements which the state has power to impose.See Pierce v. Society of Sisters,26 U. S. 510. It appears that these parochial schools meet New Jersey's requirements. The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.

The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.

Affirmed.LEMON v. KURTZMAN, 403 U.S. 602 (1971)

403 U.S. 602

LEMON ET AL. v. KURTZMAN, SUPERINTENDENT OF PUBLIC INSTRUCTION OFPENNSYLVANIA, ET AL.APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

No. 89.Argued March 3, 1971Decided June 28, 1971*[Footnote *] Together with No. 569, Earley et al. v. DiCenso et al., and No. 570, Robinson, Commissioner of Education of Rhode Island, et al. v. DiCenso et al., on appeal from the United States District Court for the District of Rhode Island.

Rhode Island's 1969 Salary Supplement Act provides for a 15% salary supplement to be paid to teachers in nonpublic schools at which the average per-pupil expenditure on secular education is below the average in public schools. Eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion. A three-judge court found that about 25% of the State's elementary students attended nonpublic schools, about 95% of whom attended Roman Catholic affiliated schools, and that to date about 250 teachers at Roman Catholic schools are the sole beneficiaries under the Act. The court found that the parochial school system was "an integral part of the religious mission of the Catholic Church," and held that the Act fostered "excessive entanglement" between government and religion, thus violating the Establishment Clause. Pennsylvania's Nonpublic Elementary and Secondary Education Act, passed in 1968, authorizes the state Superintendent of Public Instruction to "purchase" certain "secular educational services" from nonpublic schools, directly reimbursing those schools solely for teachers' salaries, textbooks, and instructional materials. Reimbursement is restricted to courses in specific secular subjects, the textbooks and materials must be approved by the Superintendent, and no payment is to be made for any course containing "any subject matter expressing religious teaching, or the morals or forms of worship of any sect." Contracts were made with schools that have more than 20% of all the students in the State, most of which were affiliated with the Roman Catholic Church. The complaint challenging the constitutionality of[403 U.S. 602, 603]the Act alleged that the church-affiliated schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose. A three-judge court granted the State's motion to dismiss the complaint for failure to state a claim for relief, finding no violation of the Establishment or Free Exercise Clause. Held: Both statutes are unconstitutional under the Religion Clauses of the First Amendment, as the cumulative impact of the entire relationship arising under the statutes involves excessive entanglement between government and religion. Pp. 611-625.

(a) The entanglement in the Rhode Island program arises because of the religious activity and purpose of the church-affiliated schools, especially with respect to children of impressionable age in the primary grades, and the dangers that a teacher under religious control and discipline poses to the separation of religious from purely secular aspects of elementary education in such schools. These factors require continuing state surveillance to ensure that the statutory restrictions are obeyed and the First Amendment otherwise respected. Furthermore, under the Act the government must inspect school records to determine what part of the expenditures is attributable to secular education as opposed to religious activity, in the event a nonpublic school's expenditures per pupil exceed the comparable figures for public schools. Pp. 615-620.

(b) The entanglement in the Pennsylvania program also arises from the restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role and the state supervision of nonpublic school accounting procedures required to establish the cost of secular as distinguished from religious education. In addition, the Pennsylvania statute has the further defect of providing continuing financial aid directly to the church-related schools. Historically governmental control and surveillance measures tend to follow cash grant programs, and here the government's post-audit power to inspect the financial records of church-related schools creates an intimate and continuing relationship between church and state. Pp. 620-622.

(c) Political division along religious lines was one of the evils at which the First Amendment aimed, and in these programs, where successive and probably permanent annual appropriations that benefit relatively few religious groups are involved, political[403 U.S. 602, 604]fragmentation and divisiveness on religious lines are likely to be intensified. Pp. 622-624.

(d) Unlike the tax exemption for places of religious worship, upheld in Walz v. Tax Commission,397 U.S. 664, which was based on a practice of 200 years, these innovative programs have self-perpetuating and self-expanding propensities which provide a warning signal against entanglement between government and religion. Pp. 624-625.

No. 89, 310 F. Supp. 35, reversed and remanded; Nos. 569 and 570, 316 F. Supp. 112, affirmed.

BURGER, C. J., delivered the opinion of the Court, in which BLACK, DOUGLAS, HARLAN, STEWART, MARSHALL (as to Nos. 569 and 570), and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 625, in which BLACK, J., joined, and in which MARSHALL, J. (as to Nos. 569 and 570), joined, filing a separate statement, post, p. 642. BRENNAN, J., filed a concurring opinion, post, p. 642. WHITE, J., filed an opinion concurring in the judgment in No. 89 and dissenting in Nos. 569 and 570, post, p. 661. MARSHALL, J., took no part in the consideration or decision of No. 89.

Henry W. Sawyer III argued the cause and filed briefs for appellants in No. 89. Edward Bennett Williams argued the cause for appellants in No. 569. With him on the brief were Jeremiah C. Collins and Richard P. McMahon. Charles F. Cottam argued the cause for appellants in No. 570. With him on the brief were Herbert F. DeSimone, Attorney General of Rhode Island, and W. Slater Allen, Jr., Assistant Attorney General.

J. Shane Creamer argued the cause for appellees Kurtzman et al. in No. 89. On the brief were Fred Speaker, Attorney General of Pennsylvania, David W. Rutstein, Deputy Attorney General, and Edward Friedman. William B. Ball argued the cause for appellee schools in No. 89. With him on the brief were Joseph G. Skelly, James E. Gallagher, Jr., C. Clark Hodgson, Jr., Samuel Rappaport, Donald A. Semisch, and William D. Valente. Henry T. Reath filed a brief for appellee Pennsylvania Association of Independent Schools in No. 89. Leo[403 U.S. 602, 605]Pfeffer and Milton Stanzler argued the cause for appellees in Nos. 569 and 570. With them on the brief were Harold E. Adams, Jr., and Allan M. Shine.

Briefs of amici curiae urging reversal in No. 89 were filed by Mr. Pfeffer for the American Association of School Administrators et al.; by Henry C. Clausen for United Americans for Public Schools; by Samuel Rabinove, Arnold Forster, George Soll, Joseph B. Robison, Paul Hartman, and Sol Rabkin for the American Jewish Committee et al.; by Franklin C. Salisbury for Protestants and Other Americans United for Separation of Church and State; by J. Harold Flannery for the Center for Law and Education, Harvard University, et al.; and by Peter L. Costas and Paul W. Orth for the Connecticut State Conference of Branches of the NAACP et al.

Briefs of amici curiae urging affirmance in No. 89 were filed by Acting Solicitor General Friedman, Assistant Attorney General Ruckelshaus, Robert V. Zener, and Donald L. Horowitz for the United States; by Paul W. Brown, Attorney General of Ohio, pro se, and Charles S. Lopeman, First Assistant Attorney General, for the Attorney General of Ohio et al.; by Levy Anderson for the City of Philadelphia; by Robert M. Landis for the School District of Philadelphia; by the City of Pittsburgh; by Bruce W. Kauffman, John M. Elliott, and Edward F. Mannino for the City of Erie; by James A. Kelly for the School District of the City of Scranton; by Charles M. Whelan, William R. Consedine, Alfred L. Scanlan, Arthur E. Sutherland, and Harmon Burns, Jr., for the National Catholic Educational Association et al.; by Ethan A. Hitchcock and I. N. P. Stokes for the National Association of Independent Schools, Inc.; by Jerome H. Gerber for the Pennsylvania State AFL-CIO; by Thomas J. Ford, Edward J. Walsh, Jr., and Theodore D. Hoffmann[403 U.S. 602, 606]for the Long Island Conference of Religious Elementary and Secondary School Administrators; by Nathan Lewin for the National Jewish Commission on Law and Public Affairs; by Stuart Hubbell for Citizens for Educational Freedom; and by Edward M. Koza, Walter L. Hill, Jr., Thomas R. Balaban, and William J. Pinkowski for the Polish American Congress, Inc., et al.

The National Association of Laymen filed a brief as amicus curiae in No. 89.

Briefs of amici curiae urging reversal in Nos. 569 and 570 were filed by Acting Solicitor General Friedman, Assistant Attorney General Gray, and Messrs. Zener and Horowitz for the United States, and by Jesse H. Choper and Messrs. Consedine, Whelan, and Burns for the National Catholic Educational Association et al.

Briefs of amici curiae urging affirmance in Nos. 569 and 570 were filed by Messrs. Rabinove, Robison, Forster, and Rabkin for the American Jewish Committee et al.; by Mr. Salisbury for Protestants and Other Americans United for Separation of Church and State; by Mr. Flannery for the Center for Law and Education, Harvard University, et al.; and by Messrs. Costas and Orth for the Connecticut State Conference of Branches of the NAACP et al.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

These two appeals raise questions as to Pennsylvania and Rhode Island statutes providing state aid to church-related elementary and secondary schools. Both statutes are challenged as violative of the Establishment and Free Exercise Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment.

Pennsylvania has adopted a statutory program that provides financial support to nonpublic elementary and[403 U.S. 602, 607]secondary schools by way of reimbursement for the cost of teachers' salaries, textbooks, and instructional materials in specified secular subjects. Rhode Island has adopted a statute under which the State pays directly to teachers in nonpublic elementary schools a supplement of 15% of their annual salary. Under each statute state aid has been given to church-related educational institutions. We hold that both statutes are unconstitutional.

I

The Rhode Island Statute

The Rhode Island Salary Supplement Act1was enacted in 1969. It rests on the legislative finding that the quality of education available in nonpublic elementary schools has been jeopardized by the rapidly rising salaries needed to attract competent and dedicated teachers. The Act authorizes state officials to supplement the salaries of teachers of secular subjects in nonpublic elementary schools by paying directly to a teacher an amount not in excess of 15% of his current annual salary. As supplemented, however, a nonpublic school teacher's salary cannot exceed the maximum paid to teachers in the State's public schools, and the recipient must be certified by the state board of education in substantially the same manner as public school teachers.

In order to be eligible for the Rhode Island salary supplement, the recipient must teach in a nonpublic school at which the average per-pupil expenditure on secular education is less than the average in the State's public schools during a specified period. Appellant State Commissioner of Education also requires eligible schools to submit financial data. If this information indicates a per-pupil expenditure in excess of the statutory limitation,[403 U.S. 602, 608]the records of the school in question must be examined in order to assess how much of the expenditure is attributable to secular education and how much to religious activity.2

The Act also requires that teachers eligible for salary supplements must teach only those subjects that are offered in the State's public schools. They must use "only teaching materials which are used in the public schools." Finally, any teacher applying for a salary supplement must first agree in writing "not to teach a course in religion for so long as or during such time as he or she receives any salary supplements" under the Act.

Appellees are citizens and taxpayers of Rhode Island. They brought this suit to have the Rhode Island Salary Supplement Act declared unconstitutional and its operation enjoined on the ground that it violates the Establishment and Free Exercise Clauses of the First Amendment. Appellants are state officials charged with administration of the Act, teachers eligible for salary supplements under the Act, and parents of children in church-related elementary schools whose teachers would receive state salary assistance.

A three-judge federal court was convened pursuant to 28 U.S.C. 2281, 2284. It found that Rhode Island's nonpublic elementary schools accommodated approximately 25% of the State's pupils. About 95% of these pupils attended schools affiliated with the Roman Catholic church. To date some 250 teachers have applied for benefits under the Act. All of them are employed by Roman Catholic schools.[403 U.S. 602, 609]

The court held a hearing at which extensive evidence was introduced concerning the nature of the secular instruction offered in the Roman Catholic schools whose teachers would be eligible for salary assistance under the Act. Although the court found that concern for religious values does not necessarily affect the content of secular subjects, it also found that the parochial school system was "an integral part of the religious mission of the Catholic Church."

The District Court concluded that the Act violated the Establishment Clause, holding that it fostered "excessive entanglement" between government and religion. In addition two judges thought that the Act had the impermissible effect of giving "significant aid to a religious enterprise." 316 F. Supp. 112. We affirm.

The Pennsylvania Statute

Pennsylvania has adopted a program that has some but not all of the features of the Rhode Island program. The Pennsylvania Nonpublic Elementary and Secondary Education Act3was passed in 1968 in response to a crisis that the Pennsylvania Legislature found existed in the State's nonpublic schools due to rapidly rising costs. The statute affirmatively reflects the legislative conclusion that the State's educational goals could appropriately be fulfilled by government support of "those purely secular educational objectives achieved through nonpublic education . . . ."

The statute authorizes appellee state Superintendent of Public Instruction to "purchase" specified "secular educational services" from nonpublic schools. Under the "contracts" authorized by the statute, the State directly reimburses nonpublic schools solely for their actual expenditures for teachers' salaries, textbooks, and instructional materials. A school seeking reimbursement must[403 U.S. 602, 610]maintain prescribed accounting procedures that identify the "separate" cost of the "secular educational service." These accounts are subject to state audit. The funds for this program were originally derived from a new tax on horse and harness racing, but the Act is now financed by a portion of the state tax on cigarettes.

There are several significant statutory restrictions on state aid. Reimbursement is limited to courses "presented in the curricula of the public schools." It is further limited "solely" to courses in the following "secular" subjects: mathematics, modern foreign languages,4physical science, and physical education. Textbooks and instructional materials included in the program must be approved by the state Superintendent of Public Instruction. Finally, the statute prohibits reimbursement for any course that contains "any subject matter expressing religious teaching, or the morals or forms of worship of any sect."

The Act went into effect on July 1, 1968, and the first reimbursement payments to schools were made on September 2, 1969. It appears that some $5 million has been expended annually under the Act. The State has now entered into contracts with some 1,181 nonpublic elementary and secondary schools with a student population of some 535,215 pupils - more than 20% of the total number of students in the State. More than 96% of these pupils attend church-related schools, and most of these schools are affiliated with the Roman Catholic church.

Appellants brought this action in the District Court to challenge the constitutionality of the Pennsylvania statute. The organizational plaintiffs-appellants are associations of persons resident in Pennsylvania declaring[403 U.S. 602, 611]belief in the separation of church and state; individual plaintiffs-appellants are citizens and taxpayers of Pennsylvania. Appellant Lemon, in addition to being a citizen and a taxpayer, is a parent of a child attending public school in Pennsylvania. Lemon also alleges that he purchased a ticket at a race track and thus had paid the specific tax that supports the expenditures under the Act. Appellees are state officials who have the responsibility for administering the Act. In addition seven church-related schools are defendants-appellees.

A three-judge federal court was convened pursuant to 28 U.S.C. 2281, 2284. The District Court held that the individual plaintiffs-appellants had standing to challenge the Act, 310 F. Supp. 42. The organizational plaintiffs-appellants were denied standing under Flast v. Cohen,392 U.S. 83, 99, 101 (1968).

The court granted appellees' motion to dismiss the complaint for failure to state a claim for relief.5310 F. Supp. 35. It held that the Act violated neither the Establishment nor the Free Exercise Clause, Chief Judge Hastie dissenting. We reverse.

II

In Everson v. Board of Education,330 U.S. 1(1947), this Court upheld a state statute that reimbursed the parents of parochial school children for bus transportation[403 U.S. 602, 612]expenses. There MR. JUSTICE BLACK, writing for the majority, suggested that the decision carried to "the verge" of forbidden territory under the Religion Clauses. Id., at 16. Candor compels acknowledgment, moreover, that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.

The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead they commanded that there should be "no law respecting an establishment of religion." A law may be one "respecting" the forbidden objective while falling short of its total realization. A law "respecting" the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion but nevertheless be one "respecting" that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment.

In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement of the sovereign in religious activity." Walz v. Tax Commission,397 U.S. 664, 668(1970).

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen,392 U.S. 236, 243(1968);[403 U.S. 602, 613]finally, the statute must not foster "an excessive government entanglement with religion." Walz, supra, at 674.

Inquiry into the legislative purposes of the Pennsylvania and Rhode Island statutes affords no basis for a conclusion that the legislative intent was to advance religion. On the contrary, the statutes themselves clearly state that they are intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws. There is no reason to believe the legislatures meant anything else. A State always has a legitimate concern for maintaining minimum standards in all schools it allows to operate. As in Allen, we find nothing here that undermines the stated legislative intent; it must therefore be accorded appropriate deference.

In Allen the Court acknowledged that secular and religious teachings were not necessarily so intertwined that secular textbooks furnished to students by the State were in fact instrumental in the teaching of religion.392 U.S., at 248. The legislatures of Rhode Island and Pennsylvania have concluded that secular and religious education are identifiable and separable. In the abstract we have no quarrel with this conclusion.

The two legislatures, however, have also recognized that church-related elementary and secondary schools have a significant religious mission and that a substantial portion of their activities is religiously oriented. They have therefore sought to create statutory restrictions designed to guarantee the separation between secular and religious educational functions and to ensure that State financial aid supports only the former. All these provisions are precautions taken in candid recognition that these programs approached, even if they did not intrude upon, the forbidden areas under the Religion Clauses. We need not decide whether these legislative precautions restrict the principal or primary effect of the programs to the point where they do not offend the Religion[403 U.S. 602, 614]Clauses, for we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion.

III

In Walz v. Tax Commission, supra, the Court upheld state tax exemptions for real property owned by religious organizations and used for religious worship. That holding, however, tended to confine rather than enlarge the area of permissible state involvement with religious institutions by calling for close scrutiny of the degree of entanglement involved in the relationship. The objective is to prevent, as far as possible, the intrusion of either into the precincts of the other.

Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. Zorach v. Clauson,343 U.S. 306, 312(1952); Sherbert v. Verner,374 U.S. 398, 422(1963) (HARLAN, J., dissenting). Fire inspections, building and zoning regulations, and state requirements under compulsory school-attendance laws are examples of necessary and permissible contacts. Indeed, under the statutory exemption before us in Walz, the State had a continuing burden to ascertain that the exempt property was in fact being used for religious worship. Judicial caveats against entanglement must recognize that the line of separation, far from being a "wall," is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.

This is not to suggest, however, that we are to engage in a legalistic minuet in which precise rules and forms must govern. A true minuet is a matter of pure form and style, the observance of which is itself the substantive end. Here we examine the form of the relationship for the light that it casts on the substance.[403 U.S. 602, 615]

In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority. MR. JUSTICE HARLAN, in a separate opinion in Walz, supra, echoed the classic warning as to "programs, whose very nature is apt to entangle the state in details of administration . . . ." Id., at 695. Here we find that both statutes foster an impermissible degree of entanglement.

(a) Rhode Island program

The District Court made extensive findings on the grave potential for excessive entanglement that inheres in the religious character and purpose of the Roman Catholic elementary schools of Rhode Island, to date the sole beneficiaries of the Rhode Island Salary Supplement Act.

The church schools involved in the program are located close to parish churches. This understandably permits convenient access for religious exercises since instruction in faith and morals is part of the total educational process. The school buildings contain identifying religious symbols such as crosses on the exterior and crucifixes, and religious paintings and stat