¹ School District v. Schempp, and Murray v. Curlett, 374 U.S. 203, 83 S.Ct. 1560 (1963); Engel v. Vitale, 370 U.S. 421 (1962).

² “They put the Negroes in the schools—now they put God out of the schools.” Statement by Andrews, G. W., Representative from Alabama, New York Times, 06 26, 1962, p. 1Google Scholar, col. 8. See also the remarks of Senators Eastland, Johnston, McClellan, Talmadge, Robertson, Stennis, and Beali, ibid., June 30, 1962, p. 20, cols. 2, 5, and sources cited in Kauper, , “Prayer, Public Schools and the Supreme Court,” University of Michigan Law Review, Vol. 61 (1963) p. 1031, n. 2CrossRefGoogle Scholar; see also H. J.R. No. 21, a Joint Resolution adopted by the 105th General Assembly of Ohio (1963), memorializing the Ohio public school system “that daily prayer and Bible reading should be practiced in the schools of Ohio.”

³ Griswold, , “Absolute is in the Dark,” Utah Law Review, Vol. 8 (1963), p. 167Google Scholar.

⁴ New York Times, 07 14, 1962, p. 9, col. 2Google Scholar; Reader's Digest, 78–85 (1962). For an excellent news treatment of the Engel case, see CBS Reports, Storm Over the Supreme Court, Part Two, originally telecast on March 13, 1963. Reprints are available from the CBS Television Network.

⁵ See, e.g., Kauper, op. cit. supra; Choper, , “Religion in the Public Schools: A Proposed Constitutional Standard,” University of Minnesota Law Review, Vol. 47 (1963), p. 329Google Scholar; Sutherland, , “Establishment According to Engel,” Harvard Law Review, Vol. 76 (1962), p. 25CrossRefGoogle Scholar; Pfeffer, , “Court, Constitution and Prayer,” Rutgers Law Review, Vol. 16 (1962), p. 735Google Scholar; Kurland, , “The Regents' Prayer Case: Full of Sound and Fury Signifying …,” 1962 The Supreme Court Review, p. 1Google Scholar.

⁶ In Engel v. Vitale, above, note 1, three opinions covering thirty pages appeared, with two members of the Court not participating in the decision. In School District v. Schempp, also above, note 1, four separate opinions spanning 117 pages of United States Reports were involved. The multiple, opinions in the Sunday Closing Law cases span 220 pages and reveal breaches within the Court felt again this year in the four separate opinions filed in Sherbert v. Verner, 374 U.S. 298, 83 S.Ct. 1790 (1963).

⁷ The disagreement is by no means confined to a split between the majority of eight and Mr. Justice Stewart who dissented. Mr. Justice Douglas apparently would apply the Establishment Clause whenever there is one cent of public funds involved. Mr. Justice Brennan would obviously uphold a vast number of practices unacceptable to Mr. Justice Douglas, and there are significant differences as well in the concepts of neutrality in the opinions of Mr. Justice Clark, in relation to those by Justices Goldberg and Harlan.

⁸ See, e.g., United States v. Ballard, 322 U.S. 78 (1944); Arver v. United States, 245 U.S. 366 (1918); Quick Bear v. Leupp, 210 U.S. 50 (1908): Holy Trinity Church v. United States, 143 U.S. 457 (1891); Bradfield v. Roberts, 175 U.S. 219 (1899); Davis v. Beason, 133 U.S. 333 (1890); Reynolds v. United States, 98 U.S. 145 (1879).

⁹ See e.g., the Schempp, Murray and Engel cases cited above, note I; Torcaso v. Watkins, 367 U.S. 488 (1961); McCollum v. School Board, 333 U.S. 203 (1948), holding state laws invalid as an establishment of religion. Sherbert v. Verner, above, note 6; Jamison v. Texas, 318 U.S. 413 (1943); Largent v. Texas, 318 U.S. 418 (1943); Follett v. McCormick, 321 U.S. 573 (1944); Murdock v. Pennsylvania, 319 U.S. 105 (1943); Douglas v. Jeannette, 319 U.S. 157 (1943); Jones v. Opelika, 319 U.S. 103 (1943); Martin v. City of Struthers, 319 U.S. 141 (1943), holding state laws invalid as abridging the free exercise of religion. There has been a host of cases in which freedom of religion was involved, but where the decision was not in fact based on an “abridgment” theory. See, e.g., Lovell v. City of Griffin, 303 U.S. 444 (1938); Board of Education v. Barnette, 319 U.S. 624 (1943); Cochran v. La. State Bd. of Educ, 281 U.S. 370 (1930); Pierce v. Society of Sisters, 268 U.S. 510 (1925). For a superior discussion of these and related cases, see Kurland, , Religion and the Law (Chicago, 1962)Google Scholar.

¹⁰ Barron v. Baltimore, 7 Pet. 243, 8 L.Ed. 672 (1833); Permoli v. First Municipality, 44 U.S. (3 How.) 589 (1845).

¹¹ Historical analyses of the religion clause in the First Amendment, and of its application through the Fourteenth Amendment, include Healey, , Jefferson on Religion in Public Education (1962)Google Scholar; Murray, , We Hold These Truths (New York; Shead and Ward, 1960)Google Scholar; Howe, , “The Constitutional Question,” Religion and the Free Society, Vol. 49 (1958)Google Scholar; Brady, , Confusion Twice Confounded (1954)Google Scholar; Pfeffer, , Church, State and Freedom (Boston: The Beacon Press, 1962) pp. 124–33Google Scholar; O'Neill, , Religion and Education Under the Constitution (New York, 1949)Google Scholar; Corwin, , The Supreme Court as a National School Board, A Constitution of Powers in a Secular State (1951)Google Scholar; Stokes, , Church and Stale in the United States, 1, 537–61 (1950)Google Scholar; Parsons, , The First Freedom (1948)Google Scholar; Bryce, , The American Commonwealth (New York, 1914), II, 763–95Google Scholar; Story, , Commentaries on the Constitution of the United States (Boston, 1865), III, § 1865 et seq.Google Scholar; Murray, , “Law or Prepossessions?,” Law and Contemporary Problems, Vol. 14 (1959), p. 23CrossRefGoogle Scholar; Katz, , “Freedom of Religion and State Neutrality,” University of Chicago Law Review, Vol. 20 (1953), p. 426CrossRefGoogle Scholar; Pfeffer, , “Church and State: Something Less than Separation,” University of Chicago Law Review, Vol. 19 (1951) p. 1CrossRefGoogle Scholar; Lardner, “How Far Does the Constitution Separate Church and State?,” this Review, Vol. 45 (1951), p. 110; Konvitz, , “Separation of Church and State: The First Freedom,” Law and Contemporary Problems, Vol. 14 (1949), p. 44CrossRefGoogle Scholar; U.C.L.A. Law Review, Vol. 9 (1962), pp. 495, 499Google Scholar.

¹² In addition to the five cases cited in note 9 above, invalidating state laws establishing religion, the Court has sustained laws against such a challenge in the following six cases: McGowan v. Maryland, 366 U.S. 420 (1961), (four cases consolidated); Zorach v. Clauson, 343 U.S. 306 (1952); Everson v. Board of Education, 330 U.S. 1 (1947). In addition, two members of the Court invoked the establishment clause this year in Sherbert v. Verner, above, note 6, and there are other cases where the issue was not raised or not heard, e.g., Cochran v. La. State Bd. of Education, 281 U.S. 370 (1930); Doremus v. Board of Education, 342 U.S. 429 (1952); Poe v. Ullman, 367 U.S. 497 (1961).

¹³ School District v. Schempp, 374 U.S. 203, 215–16 (1963).

¹⁴ Id. at 226: “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.”

See also Everson v. Board of Education, 330 U.S. 1, 52 (1947) (dissenting opinion by Mr. Justice Rutledge): “The sphere of religious activity, as distinguished from the secular intellectual liberties, has been given the two-fold protection and, as the state cannot forbid, neither can it perform or aid in performing the religious function. The dual prohibition makes that function altogether private.”

Professor Kurland has attempted to synthesize the duality of the First Amendment in the following terms (Religion and the Law [1962] pp. 18, 112Google Scholar): “The freedom and separation clauses should be read as stating a single precept: the government cannot utilize religion as a standard for action or inaction because these clauses, read together as they should be, prohibit classification in terms of religion either to confer a benefit or to impose a burden.” There are difficulties in the application of this particular statement, however, and for that reason I have employed a slightly different statement in the text, infra. See Kauper, , “Religion and the Law: A Review,” Texas Law Review, Vol. 41 (1963), p. 467Google Scholar; Pfeffer, , “Religion-Blind Government: A Review,” Stan-ord Law Review, Vol. 15 (1963), p. 389CrossRefGoogle Scholar.

¹⁵ See School District v. Schempp, above, note 1, at p. 222: “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.”

¹⁶ The concern to limit government from having powers which would provide a temptation for organized religions is evident from the dicta of the Court: “[T]he effect of the religious freedom amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business. … It was intended not only to keep the states' hands out of religion, but to keep religion's hands off the state, and, above all, to keep bitter religious controversy from getting control of public policy or the public purse.” Everson v. Board of Education, 330 U.S. 1, 26, (1947) (dissenting opinion). See also Mc-Gowan v. Maryland, 366 U.S. 420, 430 (1961): “(T)he writings of Madison, who was the First Amendment's architect, demonstrate that the establishment of a religion was equally feared because of its tendencies to political tyranny and subversion of civil authority.”

¹⁷ In view of the trappings of religiosity in public life, it is commonly supposed that the First Amendment is unconcerned with protecting atheists and agnostics. Such a view is comforted, no doubt, by certain congressional acts within the past decade. In 1954, “under God” was inserted into the pledge of allegiance. 36 U.S.C. § 172 (1958). In 1956, “In God We Trust” was adopted as the national motto by joint resolution. 70 Stat. 732. In 1955, “In God We Trust,” first authorized for imprinting oh Coins in 1865 (13 Stat. 517, 518), was prescribed for all currency and coins. 69 Stat. 290. In 1952, Congress memorialized the President to proclaim a National Day of Prayer each year. 36 U.S.C. § 185.

The lingering view that the First Amendment is merely neutral among religions also finds support in an unguarded dictum by Mr. Justice Douglas, the consequentes of which were ably traced by Sorauf, “Zorach v. Clauson: The Impact of a Supreme Court Decision,” this Review, Vol. 53 (1959), p. 777. The dictum, from Zorach v. Clauson, 343 U.S. 306, 314–15 (1952), was this: “We are a religious people whose institutions presuppose a Supreme Being. … When the state encourages religious instruction or cooperates With religious authorities adjusting the schedule of public events to sectarian needs, it follows the best of our traditions.”

Compare with these, the following statements by the Court: Torcaso v. Watkins, 367 U.S. 488, 495 (1961): “We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.’ Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded On different beliefs.” Also, Zorach v. Clauson, 343 U.S. 306, 319, 325 (1952), (dissenting opinions by Mr. Justice Black and Mr. Justice Jackson, respectively): “The spiritual mind of man has thus been free to believe, disbelieve, or doubt, without repression, great or email, by the heavy hand of government. … The day that this country ceases to be free for irreligion it will cease to be free for religion-except for the sect that can win political power.”And Everson v. Board of Education, 330 U.S. 1, 15–16 (1947): “Neither [a state nor the federal government] can pass laws which aid one religion, aid all religions, or prefer one religion over an other. 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 or professing religious beliefs or disbeliefs, for church attendance or non-attendance.”

While no one may have “standing” to secure judicial review of Congress's religious obeisances, it is extremely difficult to reconcile the religious slogans enacted by Congress into law, with the following declaration by Mr. Justice Frankfurter, McGowan v. Maryland, 366 U.S. 420, 465 (1961): The Establishment Clause withdrew from the sphere of legitimate legislative concern and competence a specific, but comprehensive, area of human conduct: man's belief or disbelief in the verity of some transcendental idea and man's expression in action of that belief or disbelief. Congress may not make these matters, as such, the subject of legislation, nor, now, may any legislature in this country. Neither the National Government nor, under the Due Process Clause of the Fourteenth Amendment, a State may, by any device, support belief or the expression of belief for its own sake, whether from conviction of the truth of that belief, or from conviction that by the propagation of that belief the civil welfare of the State is served, or because a majority of its citizens, holding that belief, are offended when all do not hold it.

¹⁸ Loc. cit. supra, note 12.

¹⁹ 333 U.S. 203 (1948).

²⁰ See School District v. Schempp, above, note 1, at p. 225: “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 consistent with the First Amendment.

²¹ Analytically, the three school prayer cases are scarcely more difficult on the merits than McCollum. These cases severally involved a prayer composed by state officials and required to be recited by school children other than those excused on written request of their parents, and the recitation of the Lord's Prayer or the reading of sections from the Bible or Jewish scriptures, without comment, at the beginning of each school day. Here, too, participation was required by students not excused on written request of their parents, and the religious exercise was itself required by state law or school board regulation. While markedly less financial aid was involved in these programs than in McCollum, since the time taken each day for prayers or bible reading consumed a bare moment or two, the arrangement still involved substantial aid to religion. Students doubtless felt some compulsion to participate, and the prestige of school authorities employed in a repetitious ritual and the authoritarian atmosphere of the schoolroom would influence many youngsters. The inculcation of religion as distinguished from teaching about religion in courses on literature or history, moreover, is clearly not among the “proper functions” of government. See discussion, notes 17–20, supra. Consequently, it is easy to appreciate the decision of the Court holding these practices invalid under the test described above, even assuming the amount of aid to religion was relatively slight; such aid was not incidental to any primary or independent secular purpose which would save the scheme. (The school board alleged, however, that the religious practices did serve independent secular purposes. This matter is considered infra, text, at n. 39. See also Choper, , “Religion in the Public Schools: A Proposed Constitutional Standard,” Minnesota Law Review, Vol. 47 (1963) p. 329Google Scholar.)

For similar reasons, the religious oath of office, considered in Torcaso v. Watkins, 367 U.S. 498 (1961), was invalidated under the establishment clause. Maryland law required, as a condition of office, that notaries public subscribe to an oath affirming a belief in a Supreme Being. The coercion of such a religious expression, unsupported by any primary and independent secular purpose, resulted in a unanimous decision against its constitutionality.

²² McGowan v. Maryland, 366 U.S. 420 (1961): Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582 (1961); Braunfeld v. Brown, 366 U.S. 599 (1961); Gallagher v. Crown Kosher Super Market, 366 U.S. 617 (1961).

²³ McGowan v. Maryland, 366 U.S. at 442.

²⁴ 343 U.S. 306 (1952).

²⁵ It is arguable, however, that Zorach is defensible according to the standard, when one recalls that the unitary precept of the First Amendment is that government should act neither to benefit nor to burden religion. If one focusses not exclusively on the released-time program, but on the net effect of government having embarked on a compulsory education program, Zorach becomes more understandable in these terms: by enacting laws to require children to attend schools during most of the day, the state initially made it more difficult than before for those students to attend religious classes during those same days. By thereafter scheduling its own secular classes to accommodate those students who wished to attend religious classes off campus, the state merely acted to redress the balance, i.e., it restored to the students an opportunity to exercise the religious freedom which they enjoyed before regular school attendance was required.

To a large extent, however, this same argument was also involved in the school prayer cases where a Zorach rationale was rejected by a majority of eight members of the Court. The lone dissenting opinion, by Mr. Justice Stewart, argued that the compulsory school attendance law initially operated to make it more difficult for children to engage in the free exercise of religion, i.e., that it tended to abridge religious activities: “[A] compulsory state educational system so structures a child's life that if religious exercises are held to be an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion.” School District v. Schempp, above, note 1, at p. 313.

Nevertheless, more than “neutrality” was involved in the prayer cases. In the following respects, the program as it was administered did more than merely restore the opportunity children might have had to exercise religious prerogatives in the absence of any compulsory school attendance: (a) The prayer in Engel was obviously not of each student's or each family's private choosing, but was composed by state officials and was sectarian in character; it read as follows: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.” The Court has defined religion broadly, to include some nontheistic and many relatively small sects. See text at n. 32, infra. In this view, the Engel prayer becomes sectarian, e.g., the invocation of God is incompatible with nontheistic sects, an oral prayer is disliked by Quakers, the presumed value of prayer itself, describing the relationship between man and God as one of supplication and paternal response, and the use of a prayer to favor a particular country—all of these are variously offensive to a number of religions, (b) The prayer and scriptures in Schempp and Murray, while obviously not composed by the state, were prescribed by the state and were equally sectarian, (c) The excusai procedure, as noted by Mr. Justice Brennan, School District v. Schempp, supra, at pp. 288; itself tended to coerce students at least more than were there no school environment, (d) Some tax funds contributed by people opposed to the prayers were involved in the salaries of the teachers and provision of the classrooms, at least more than were there no school program, with each family being left to its own resources: id. at p. 229–30 (where appears the separate opinion by Mr. Justice Douglas): “[T]he present regimes must fall under that clause for the additional reason that public funds, though small in amount, are being used to promote a religious exercise. … Such contributions may not be made by the State even in a minor degree without violating the Establishment Clause. It is not the amount of public funds expended; as this case illustrates, it is the use to which public funds are put that is controlling.” (e) Conducting daily religious exercises in a classroom and under the direction of teachers provided an atmosphere in which the students might well be more substantially influenced than would be the case if there were no school system, and religious instruction left to each family and church. On balance the prayer cases appear to have been decided correctly.

Not all of the aggravating elements of the prayer cases were present in lorach, of course, and thus the case may still be as valid as Mr. Justice Brennan has recently suggested, id. at p. 262: “The deeper difference was that the McCollum program placed the religious instructor in the public school classroom in precisely the position of authority held by the regular teachers of secular subjects, while the Zorach program did not.”

Nevertheless, the arrangement even in Zorach actually did more than restore opportunities for religious endeavors which young people would theoretically have had in the absence of compulsory school attendance laws, and for this reason, the case is of doubtful authority. If the purpose of the released time program was merely to allow students to follow their own, or their family's inclination to have them attend religious classes during the week at some church, that purpose would be adequately served by having the school release all students at certain specified times, leaving to each student and his parents the decision as to how that released time should be spent. In Zorach, however, those students not attending religious classes were obliged to remain in their regular classrooms, and careful records of released students were maintained to make certain that they did attend the religious classes. The net effect of the program was consequently to ply a subtle coercion in favor of attendance at the religious classes, and not merely to provide students with the same freedom of choice they would have enjoyed had they all simply been dismissed from school on their own, or their family's recognizance. See the several dissenting opinions in Zorach v. Clauson, beginning at 343 U.S. 315.

²⁶ See n. 5, supra; Pfeffer, , “Some Current Issues in Church and State,” Western Reserve Law Review, Vol. 13 (1961), p. 9Google Scholar; Kauper, , “Church and State: Cooperative Separation,” Michigan Law Review, Vol. 60 (1961), p. 1CrossRefGoogle Scholar; Kurland, , Religion and the Law (1962)Google Scholar.

²⁷ See Paulsen, , “Preferment of Religious Institutions in Tax and Labor Legislation,” Law and Contemporary Problems, Vol. 14 (1949), p. 144CrossRefGoogle Scholar; Stimson, , “The Exemption of Property From Taxation in the United States,” Minnesota Law Review, Vol. 18 (1934), p. 411Google Scholar; Note, “Constitutionality of Tax Benefits Accorded Religion,” Columbia Law Review, Vol. 49 (1949), p. 968CrossRefGoogle Scholar; Comment, “State Tax Exemptions and the Establishment Clause,” Stanford Law Review, Vol. 9 (1957), p. 366CrossRefGoogle Scholar. See also Van Alstyne, Arvo, “Tax Exemption of Church Property,” Ohio Stale Law Journal, Vol. 20 (1959), p. 461Google Scholar; Orinan, , Religion, the Courts, and Public Policy (1903), pp. 1–38Google Scholar.

²⁸ Compare Butler, and Scanlan, , “Wall of Separation—Judicial Gloss on the First Amendment,” Notre Dame Lawyer, Vol. 37 (1962) p. 288Google Scholarwith Pfeffer, , “Federal Funds for Parochial Schools? No.,” Notre Dame Lawyer, Vol. 37 (1962), p. 309Google Scholar; Konvitz, , “Separation of Church and State: The First Freedom,” Law and Contemporary Problems, Vol. 14 (1949), p. 44CrossRefGoogle Scholar.

²⁹ See Bradfield v. Roberts, 175 U.S. 291 (1899), sustaining such an arrangement. This case may also be pertinent to discussions of federal aid for education.

³⁰ Compare Kurland, , Religion and the Law (1962), pp. 40–41Google Scholarwith Conklin, , “Conscientious Objector Provisions: A View in the Light of Torcaso v. Watkins,” Georgia Law Journal, Vol. 51 (1963), p. 252Google Scholar. Compare the separate opinion of Mr. Justice Douglas, Engel v. Vitale, 370 U.S. 421, 437 (1962) with the dissenting opinion by Mr. Justice Stewart at p. 444, and see the opinion by Mr. Justice Brennan in School District v. Schempp, supra, at pp. 296–304.

³¹ “[T]he line which separates the secular from the sectarian in American life is elusive.” Mr. Justice Brennan, in School District v. Schempp, supra, at p. 231. For thoughtful consideration of this problem, see Kauper, , “Church and State: Cooperative Separatism,” Michigan Law Review, Vol. 60 (1961), p. 1, 22CrossRefGoogle Scholar; Kauper, , “Separation of Church and State—A Constitutional View,” Catholic Lawyer, Vol. 9 (1963), pp. 32, 41Google Scholar.

³² 367 U.S. at 495 n. 11; 374 U.S. at 214.

³³ Julian Huxley, for instance, while disbelieving in a God, systematic theology, or even a general metaphysics, nevertheless describes his own commitment to evolutionary humanism as a religion. Huxley, , Religion Without Revelation (1957), pp. 20, 194Google Scholar. For equally broad definitions by American philosphers and theologians, see James, , Essays in Pragmatism (Castell, ed., 1952), pp. 122–24Google Scholar; Dewey, , Intelligence in the Modern World (Ratner, ed. 1939), p. 1036Google Scholar; Tillich, , “The Sum and Substance,” University of Southern California Alumni Review, Vol. 44 (1963), pp. 11, 13Google Scholar.

³⁴ McGowan v. Maryland, 366 U.S. at 442.

³⁵ See n. 42, supra, and Mr. Justice Frankfurter, in McGowan v. Maryland, 366 U.S. 420, 461 (1961): “Religious beliefs pervade, and religious institutions have traditionally regulated, virtually all human activity.”

³⁶ School District v. Schempp, supra, at p. 222–23: “The Free Exercise Clause … withdraws fromf the 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 invasion thereof by civil authority.”

³⁷ See Board of Education v. Barnette, 319 U.S. 624 (1943), overruling Minersville School District v. Gobitis, 310 U.S. 586 (1940). As a technical matter, however, the majority opinion in Barnette was not based on an abridgment theory.

³⁸ See, e.g., The Selective Draft Law Cases, 245 U.S. 366 (1918); Prince v. Massachusetts, 321 U.S. 158 (1944); Breard v. Alexandria, 341 U.S. 622 (1951). Por a more questionable instance, see In re Summers, 325 U.S. 561 (1945).

³⁹ See the Schempp case, supra, at pp. 223,278–79.

⁴⁰ Id. at 304. The argument is elaborated in Choper, , “Religion in the Public Schools,” Minnesota Law Review, Vol. 47 (1963), pp. 329, 410Google Scholar.

⁴¹ See articles in n. 28, supra.

⁴² Kauper, , “Church and State: Cooperative Separatism,” Michigan Law Review, Vol. 60 (1961), pp. 1, 35CrossRefGoogle Scholar: “It is apparent that the solution to some of these problems depends on placing the right label on the legislative program, and that if we can label a particular program as social or child welfare rather than aid to religious education, we thereby determine the constitutional result.”

⁴³ Everson v. Board of Education, 330 U.S. 1, 18 (1947).

⁴⁴ Id. at 21.

⁴⁵ For an excellent discussion and reference to supporting cases, see Gomillion v. Lightfoot, 270 F.2d 594, 609–611 (5th Cir. 1959) (dissenting opinion), rev'd, 364 U.S. 339 (1960).

⁴⁶ 345 U.S. 22 (1953).

⁴⁷ Id. at 38.

⁴⁸ 360 U.S. 109 (1959).

⁴⁹ Id. at 153–66. For other cases in which the Court has deferred to Congress and has been satisfied with a mere rational nexus, see Howell, , “Legislative Motive and Legislative Purpose in the Invalidation of a Civil Rights Statute,” Virginia Law Review, Vol. 47 (1961), p. 439CrossRefGoogle Scholar.

⁵⁰ Watkins v. United States, 354 U.S. 178, 200 (1957): “There is no congressional power to expose for the sake of exposure.” See also Kilbourn v. Thompson, 103 U.S. 168 (1880); NAACP v., Alabama, 357 U.S. 449 (1958); Sweezy v. New Hampshire, 354 U.S. 234 (1957); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 545, 567 (1963); Uphaus v. Wy-man, 360 U.S. 72, 82 (1959) (dissenting opinion) It is arguable, however, that while exposure is not a valid congressional purpose when the object of a legislative investigation is a private, voluntary association, it may become so when the investigation is of a department of government.

Additionally, it remains true that some purpose other than exposure nearly always can be rationalized, and the dictum in Watkins has not yet become a holding if only for this reason: “The truth of the matter is that the balancing test, at least as applied to date, means that the Committee may engage in any inquiry a majority of this Court happens to think could possibly be for a legitimate purpose whether that ‘purpose’ be the true reason for the inquiry or not. And under the tests of legitimacy that are used in this area, any first-year law school student worth his salt could construct a rationalization to justify almost any question put to any witness at any time.” Wilkinson v. United States, 365 U.S. 399, 420–21 (1961) (dissenting opinion).

⁵¹ It has been ably argued that greater judicial self-restraint is justified in reviewing federal, rather than state, laws. Wechsler, , “The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government,” Columbia Law Review, Vol. 54 (1954), p. 543CrossRefGoogle Scholar.

⁵² See, e.g., NAACP v. Button, 371 U.S. 415 (1963); Shelton v. Tucker, 364 U.S. 479 (1960); NAACP v. Alabama, 357 U.S. 449 (1958); Yick Wo v. Hopkins, 118 U.S. 356 (1886); Gomillion v. Lightfoot, 270 F.2d 594, 606–11 (5th Cir. 1949) (dissenting opinion), rev'd, 364 U.S. 339 (1960); St. Helena Parish School Bd. v. Hall, 287 F.2d 376 (5th Cir. 1961).

⁵³ School District v. Schempp, supra, at p. 280. See also the opinion for four members of the Court, by Mr. Justice Clark, at 224.

⁵⁴ McGowan v. Maryland, 366 U.S. at 453.

⁵⁵ Ibid, at p. 462.

⁵⁶ 374 U.S. 203 (1963) at 265. (Emphasis added)

⁵⁷ 360 U.S. 599 (1961).

⁵⁸ In holding that an alternative day need not constitutionally be provided for Sabbatarians, Chief Justice Warren indicated that such an accommodation would not be a feasible alternative because of: (1) added costs and administrative difficulties in policing; (2) the business advantage it might provide for those electing to close on a different day and to open Sunday when competitors were closed; (3) the difficulty of determining the bona fides of those closing on a day other than Sunday; (4) the inability of family members and friends employed on Sunday to join with others not employed on Sunday; and (5) the general distraction from a day of uniform quiet and rest which some commercial activity might produce.

⁵⁹ See text at nn. 55, 56 supra.

⁶⁰ Internal Revenue Code of 1954, §§ 501 et seq. See also § 107.

⁶¹ Id. at §170. For the estate tax advantages of religious bequests, see §642. For ways in which the charitable gift can be used to maximum advantage, see Lowndes, , “Tax Advantages of Charitable Gifts,” Virginia Law Review Vol. 46 (1960), p. 394CrossRefGoogle Scholar.

⁶² On the other hand, it is equally arguable that government fiscal activity, far from reducing disposable personal income, actually increases it. Funds taken in taxes are returned through the spending power to private hands which may then use the cash for religious or other purposes. And because of the enhanced multiplier effect which results from intelligent public expenditures, government fiscal policy obviously helps to generate more disposable personal income wholly within the private sector of the economy itself. Occasionally, in protecting the “free exercise of religion,” the Court has ignored the substantial affirmative effects of governmental fiscal activity and has concentrated unduly only on the immediate, negative, “proximate” effects. See, e.g., Follett v. McCormick, 321 U.S. 573 (1944); Murdock v. Pennsylvania, 319 U.S. 157 (1943); Jones v. Opelika, 319 U.S. 103 (1943). See also Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790 (1963).

⁶³ See Pierce v. Society of Sisters, 268 U.S. 510 (1925), not decided, however, on the basis of the abridgment clause. See Kurland, , Religion and the Law (1962), pp. 27–28Google Scholar.

⁶⁴ See Follett v. McCormick, 321 U.S. 573 (1944); Murdock v. Pennsylvania, 319 U.S. 105 (1943); Douglas v. Jeannette, 319 U.S. 157 (1943); Jones v. Opelika, 319 U.S. 103 (1943). See also Lundberg v. County of Alameda, 46 Cal. 2d 644, 298 F.2d 1, appeal dismissed, sub nom. Heisey v. County of Alameda, 352 U.S. 921 (1956).