Zorach v. Clauson, 198 Misc. 631, 99 N. Y. S. 2d 339 (Sup. Ct. 1950); Afd. 278 App. Div. 573, 102 N. Y. S. 2d 27 (2nd Dept. 1951); Aff\u27d. 303 N. Y. 161, 100 N. E. 2d 463 (1951)

Yianilos, Spero L.

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Buffalo Law Review Volume 1 Number 2 Article 20 12-1-1951 Constitutional Law—Separation of Church and State—New York Release Time Program Spero L. Yianilos Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Constitutional Law Commons Recommended Citation Spero L. Yianilos, Constitutional Law—Separation of Church and State—New York Release Time Program, 1 Buff. L. Rev. 198 (1951). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol1/iss2/20 This Recent Decision is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. BUFFALO LAW REVIEWCONSTITUTIONAL LAW-SEPARATION OF CHURCH AND STATE-NEW YORK RELEASE TIME PROGRAMIn 1940 the New York State legislature enacted a statute under which theCommissioner of Education was authorized to establish rules and regulations topermit the absence of school-children from the State's public schools for reli-gious observances and education. N. Y. Education Law §3210 (1940). Pur-suant to this enactment a "released time" program for religious instruction wasadopted in the City of New York to be held off the public school premiseswith public school participation limited to releasing from secular instructionfor one hour a week those children willing to take religiods instruction. Thisprogram was challenged by parents of two children attending public schools in theCity of New York as being an establishment of a religion prohibited by the FirstAmendment to the Constitution which provides:"Congress shall make no la*s respecting the establishment ofreligion, or prohibiting the free exercise thereof...."HELD, 6-1, that this is not an establishment of religion under the First Amend-ment of the Federal Constitution made applicable to the States by the FourteenthAmendment nor under Art. 1, Sec. 3 of the New York State Constitution. Zorachv. Clauson, 198 Misc. 631, 99 N. Y. S. 2d 339 (Sup. Ct. 1950); Afd. 278 App. Div.573, 102 N. Y. S. 2d 27 (2nd Dept. 1951); Aff'd. 303 N. Y. 161, 100 N. E. 2d463 (1951).In reaching its decision the New York Court of Appeals was confronted withthe decision of McCullom v. Board of Education 333 U. S. 203 (1948), theSupreme Court's most recent interpretation of the "Establishment Clause." Itfound the facts of the Zorach case sufficiently dissimilar to be of constitutionalsignificance and applied its previous holding in People ex rel Lewis v. Graves245 N. Y. 195, 156 N. E. 663 (1927); maintaining that it had not been overruledby the McCullom case, supra. The Court was comforted by the results of Eversonv. Board of Education, 330 U. S. 1 (1947). Cochran v. Louisiana State Board ofEducation 281 U. S. 370 (1930), and Bradfeld v. Roberts 175 U. S. 291 (1899),citing them as instances of state action involving incidental benefits to religion thatwere not objectionable.The dictum of Justice Frankfurters concurring opinion in the McCullomcase, supra at 231 where he said:"... Different forms which 'released time' has taken during morethan thirty years of growth include programs which, like that before us,RECENT DECISIONScould not withstand the test of the Constitution; "others may be foundunexceptionable.. :'was relied upon as further justification for the present holding.In McCullom v. Board of Education, supra, a released time program ofreligious instruction in the public schools of Champaign, Illinois was involved.The outstanding features and according to the New York Court in the principalcase, the grounds for distinction were that religious teachers, employed subject tothe approval and supervision of the school authorities by private religious groups,gave religious instructions in public school buildings. The New York system hasavoided this in seeking to minimize public aid to the program by conducting itoutside of public buildings and by retaining no control over the religious teachers.All that the school does besides excusing the pupil is to keep a record in order tosee that the excuses are not taken advantage of and the school deceived. Theelement both systems have in common is that the public school system suppliespupils to organized religious groups for purposes of religious instructions duringhours when the children, under the state's compulsory education laws, are requiredto be in school. The controversy boils down to whether a program wherebychildren are released 'on condition that they attend religious classes, is an estab-lishment of a religion.The First Amendment contains a dual prohibition; it bars not only lawsrespecting an establishment of religion, but also laws prohibiting the free exerciseof religion. Previous cases involving freedom of religion have dealt with prohi-bitions against the free exercise of religion. Case law has given these wordssubstantive meaning. Reynolds v. U. S. 98 U. S. 145 (1878), (polygamy out-lawed); Pierce v.- Society of Sisters 268 U. S. 510 (1925), (parochial schoolsupheld); Cantwell v. Connecticut 310 U. S. 296 (1940), (licensing of religioussolicitors held invalid; West Virginia State Board of Education v. Barnette, 319U. S. 624 (1943), (compulsory flag salute in schools outlawed). These citationsare by no means exhaustive. Generally it can be deduced from these cases thatprohibitions as to the free exercise of religion will be held invalid unless thereligious practices sought to be prohibited are contrary to good health and morals.The meaning of the establishment clause because of the comparative noveltyof the concept embodied therein is not dear. The cases dealing with it are repletewith citations to historical sources that purport to reveal the intent of the Consti-tutional Fathers in including the phrase in its present wording in the First Amend-ment. See generally McCullom v. Board of Education, supra at 212-232. Legalwriters have been active in this respect. Pfeffer, Religion, Education, And TheConstitution, 8 Lawyers Guild Review 387 (1948); Sutherland, Due Process AndEstablishment, 62 Harvard Law Review 1306 (1949); O'Neill, Religion AndEducation Under The Constitution (1949).BUFFALO LAW REVIEWFew occasions have arisen requiring judicial interpretation of the establish-ment clause. Only four cases before 1947 have dealt with it, Watson v. Jones13 Wall. 679 (1872); Bradfield v. Roberts, supra; Quick Bear v. Leupp 210 U. S.50 (1908); and The Selective Draft Law Cases 245 U. S. 366 (1918), and theyhave not contributed materially to give the words substantive meaning. Indeed,these cases are of such insignificance to the present problem that Justice Rutledgedisregarded their effect entirely in proclaiming in Everson v. Board of Education,supra at 29, that the case forces the Court ". . . to determine squarely for the firsttime what was 'an establishment of religion' in the First Amendment's concep-tion . . .". Therefore the two authoritative pronouncements which will guide theCourt in the Zorach case are the Everson and McCullom decisions.In the Everson case, supra the Court upheld the constitutionality of a NewJersey statute which provided for the expenditure of tax-raised funds to pay the busfares of parochial school pupils as a part of a general program under which it paidthe fares of pupils attending public and other schools. The Court reasoned, atpage 16, that a state cannot exclude individual members of any faith ". .. becauseof their faith, or lack of it, from receiving the benefits of public welfare legisla-tion." The incidental benefits to a religious group did not invalidate a programdesigned to promote the welfare and safety of all schoolchildren. The holding ofthis case would be of no avail in upholding the Zorach decision because theEverson decision depends upon the existence of a state statute based upon a publicpolicy not designed primarily to aid religion. A statutory policy pronouncementthat a religious program is beneficial to the welfare and spiritual well-being of allschool children would come squarely within the constitutional ban."The 'establishment of religion' clause of the First Amendmentmeans at least this: Neither a state nor the Federal Government can setup a church. Neither can pass laws which aid one religion, aid allreligions, or prefer one religion over another, ... "McCullom v. Board of Education, supra at 210; Everson v. Board of Education,supra at 15.It is submitted that the benefits to religion derived through a released timeprogram are not incidental to any valid public purpose and therefore could not bejustified by the results of cases holding incidental benefits to religion valid as in theCochran, Bradfield and Everson cases, supra.The proponents of released time systems have not allowed to go unnoticedcertain practices in our national government which are examples of aid to religion.Congressional Chaplains invoke a daily blessing, Rules of the House of Represon-tatives, Rule VII (1943); Senate Manual 6 (1947). Chaplains are commissionedofficers, 3 Stat. 297 (1816). Religious services are conducted in the armed forces,Army Reg. No. 60-5 (1944); U. S. Navy Reg., ch. 1, sect. 2, and ch. 34, sect. 1RECENT DECISIONSand 2 (1920). Compulsory attendance is required of cadets at church services onSunday at both military and naval academies, Reg. for the U. S. Corps of Cadets47 (1947); U. S. Naval Academy Reg. Art. 4301 (b). The decisions, both stateand federal, dealing with the establishment problem invariably include suchexamples as proof of the limited application of that part of the First Amendment.The validity of these practices will not be before the Court when it decidesZorach v. Clauson. While some can be justified as promoting the free exercise ofreligion, others may be within the ban of Art. VI, sect. 3 of the Constitution whichprovides:"... But no religious test shall ever be required as a Qualificationto any office or public trust under the United States."Such examples lack persuasiveness since they are unchallenged and are not endowedwith a judicial blessing of constitutionality.The New York Court largely distinguished the McCullom case on the factthat the religious education there was given on the school premises: They held thedegree of aid insufficient to make the New York City program unconstitutional.In so doing the Court has disregarded the last paragraph of the majority opinion ofJustice Black in the McCullom case at 212 where he said:"Here not only are the State's tax-supported public school buildingsused for the dissemination of religious doctrines. The state also affordssectarian groups a invaluable aid in that it helps to provide pupils fortheir religious classes through use of the State's compulsory schoolmachinery. This is not separation of Church and State."Accordingly, as indicated by Justice Fuld dissenting in the Zorach case, thesecond ground of the decision does not leave any ground for the operation of thede minimis principle, therefore, to hold that whatever benefit to religion derivedfrom the New York City program is not a sufficient degree of aid to be judiciallynoticeable, the Supreme Court must overrule the holding of the McCullom case.The storm of controversy occasioned by the McCullom case has shown itsunpopularity among many persons even though that case reaffirmed a funda-mental American principle which grew out of necessity arising from the multi-plicity of sects in early America. Adherence to the establishment doctrine to thepoint of overruling the New York City program may further disturb domestictranquillity, something which the.clause sought to prevent.While this writer believes that legal analysis of the problem requires reversalof Zorach v. Clauson, the path is technically open to the Supreme Court to affirmif it feels that further extension of the constitutional doctrine of establishment willno longer serve a useful purpose in a changing society.Spero L. Yianios

Constitutional Law—Separation of Church and State—New York Release Time Program

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Constitutional Law—Separation of Church and State—New York Release Time Program

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