MINN. CIV. LIBERTIES UNION v. Roemer

• Decision Date: 19 June 1978
• Docket Number: Civ. No. 3-76-167.
• Citation: 452 F. Supp. 1316
• Parties: MINNESOTA CIVIL LIBERTIES UNION et al., Plaintiffs, v. Arthur ROEMER et al., Defendants, and Terry Sullivan et al., and Richard and Beverly Berget et al., Intervenor-Defendants.
• Court: U.S. District Court — District of Minnesota

452 F. Supp. 1316

MINNESOTA CIVIL LIBERTIES UNION et al., Plaintiffs, v. Arthur ROEMER et al., Defendants, and Terry Sullivan et al., and Richard and Beverly Berget et al., Intervenor-Defendants.

Civ. No. 3-76-167.

United States District Court, D. Minnesota, Third Division.

June 19, 1978.

William B. Henschel and Randall D. B. Tigue, Minneapolis, Minn., for plaintiffs.

Warren Spannaus, Atty. Gen., Stephen F. Befort, Special Asst. Atty. Gen., St. Paul, Minn., for state defendants.

Gordon W. Shumaker, St. Paul, Minn., for intervenor defendants Terry Sullivan, et al.

John R. Kenefick, St. Paul, Minn., for intervenor defendants Richard and Beverly Berget, et al.

Before HEANEY, Circuit Judge, DEVITT, Chief District Judge, and ALSOP, District Judge.

MEMORANDUM AND ORDER

DEVITT, Chief District Judge.

The basic issue in this declaratory judgment action is whether a Minnesota law permitting parents of students attending public and private schools to claim up to $700.00 a year of the expense as a deduction of their state income tax return has the primary effect of advancing religion in violation of the Establishment Clause of the First Amendment to the United States Constitution. We find that it does not.

The law in question was enacted in 1955, Laws 1955, ch. 741, § 1 and now appears with amendments in Minn.Stat. § 290.09(22) (1976). It provides:

Subdivision 1. Limitations. The following deductions from gross income shall be allowed in computing net income . .

Subd. 22. Tuition and Transportation expense. The amount he has paid to others, not to exceed $500 for each dependent in grades K to 6 and $700 for each dependent in grades 7 to 12, for tuition, textbooks, and transportation of each dependent in attending an elementary or secondary school situated in Minnesota, North Dakota, South Dakota, Iowa, or Wisconsin, wherein a resident of this state may legally fulfill the state's compulsory attendance laws, which is not operated for profit, and which adheres to the provisions of the Civil Rights Act of 1964 and chapter 363. As used in this subdivision, "textbooks" shall mean and include books and other instructional materials and equipment used in elementary and secondary schools in teaching only those subjects legally and commonly taught in public elementary and secondary schools in this state and shall not include instructional books and materials used in the teaching of religious tenets, doctrines, or worship, the purpose of which is to inculcate such tenets, doctrines, or worship.

Plaintiffs are seven organizations and three individual Minnesota taxpayers. Defendants are state officials responsible for administration of the law. Parents of children attending schools which fall within the statutory definition, some of which have religious affiliations, have been allowed to intervene as defendants. Jurisdiction is established, and the standing of plaintiffs to sue is unchallenged. The matter was submitted on a stipulation of facts, briefs, and oral arguments.

The governing standard for analyzing plaintiffs' claims is found in the "clearly stated, if not easily applied" three-pronged test established by a long line of Supreme Court decisions. Meek v. Pittenger, 421 U.S. 349, 358, 95 S.Ct. 1753, 1759, 44 L.Ed.2d 217 (1975). This test focuses on the purpose of the statute, the primary effect of its operation, and the degree to which administration of the statute will or does foster government entanglement with religion. Although there is some discussion of the first and third aspects of this test in plaintiffs' brief, counsel for plaintiffs stated at oral argument that plaintiffs' contentions are directed solely to the second element.¹ Hence, we need only determine whether the primary or principal effect of the statute advances or inhibits religion.

Plaintiffs have further narrowed the issues by conceding that if certain expense items constitutionally can be supplied directly by the state, a fortiori, an indirect subsidy for the items via a tax deduction is valid.² Therefore, since the state can provide textbooks, Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), and transportation, Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), for parochial school students without offending the Establishment Clause, the statutory deduction for parental expenditures to purchase these items is constitutionally proper.³ On the other hand, it is equally clear that the other types of enumerated aid cannot be given by the state either in kind or in the form of a monetary grant to purchase the items. The tuition component of the statute is particularly troublesome since there is no language limiting the tuition deduction to the cost of a secular education. Thus, it appears that the deduction could be taken for expenditures directed to tuition charges for religious subjects. It is beyond dispute that the state could not directly supply funds for this purpose. Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 2969-73, 37 L.Ed.2d 948 (1973). Moreover, even if a direct-aid statute limited the tuition aspect to only secular tuition, constitutional problems might well remain, due either to primary effect or entanglements problems. Id. (effect) and Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 2112-15, 29 L.Ed.2d 745 (1971) (entanglements). Except for so-called "textbook substitutes," the remaining specified items, instructional materials and equipment, even though explicitly limited to those with secular content, cannot be loaned or given to parochial school students by the state. Note 3, supra. Consequently, the focus of the court's inquiry is reduced to determining whether the deduction of individual expenditures for tuition, instructional materials, and equipment has the primary effect of advancing religion.

A general theme running throughout defendants' presentations is the proposition that the statute is merely general welfare legislation which only incidentally affects religious beliefs or education. Defendants contend that this tax deduction, like all other tax deductions, primarily is designed to provide tax relief for persons who make expenditures which society wishes to encourage. Thus, they argue the statute is sustainable under the line of cases which hold that a "religious institution need not be quarantined from public benefits that are neutrally available to all." Roemer v. Board of Public Works, 426 U.S. 736, 96 S.Ct. 2337, 2344, 49 L.Ed.2d 179 (1976). To support this position, defendants point to the facial neutrality of the statute and to the fact that parents of public school students could benefit from the deduction if they were called upon to make expenditures for types of educational aid which are not supplied by the state. They analogize the deduction to the general welfare programs approved in Everson v. Board of Education, supra, (school transportation); Board of Education v. Allen, supra, (textbooks); Roemer v. Board of Public Works, supra, noncategorical grants to private colleges and universities; Hunt v. McNair, 413 U.S. 734, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973) (state revenue bonds to finance college and university construction); and Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971) (federal grants for private college and university construction).

However, facial neutrality of a statute and the fact that its operative reach may extend beyond a class composed of sectarian institutions may be insufficient as a constitutional matter "if in fact the state is lending direct support to a religious activity." Roemer v. Board of Works, supra, at 2345. In all of the cited cases, it was absolutely clear that the state aid was directed solely toward the secular aspect of the religious institution and that the only sectarian effect of the aid was to allow the institution to spend its own limited resources on religious ends. Here, where such is not clearly the case, the court must look beyond the text of the statute and determine whether the deduction primarily advances the religious functions of the affected parochial schools.

Much of the argument in this case has concentrated on the two most relevant cases, one favorable to plaintiffs, the other supportive of defendants. Plaintiffs have heavily relied on Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973) and have sought to distinguish Walz v. Tax Commission, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) while defendants have done the contrary. This emphasis on case as opposed to doctrinal analysis may seem somewhat simplistic, but due to the chaotic state of legal theory in this area of constitutional law, the court sees no other mode of examination which can reliably foretell the probable view of the Supreme Court. There appears to be no discernible consistency in the decisions of the Court in Establishment Clause challenges to state school aid statutes.⁴

In Nyquist, the Court found unconstitutional a New York statute which, inter alia, provided tax relief to parents of children attending non-public schools by allowing them to subtract from their gross income a specified dollar amount which decreased as gross income increased. The Court noted that while the tax benefit was in form a deduction, it operated as a tax credit. Although the Court refused to decide the case on the basis of the technical label to be applied to the benefit, it explicitly reserved decision on the constitutionality of a true tax deduction. Id., 413 U.S. at 791, n. 49, 93 S.Ct. at 2974, n. 49. Several other cases involving similar tax programs have been invalidated on the strength of Nyquist. United Americans for Public Schools v. Franchise Tax Board of the State of California, No. C-73-0090 (N.D.Cal., filed Feb. 1, 1974), aff'd mem., 419 U.S. 890, 95 S.Ct. 166, 42 L.Ed.2d 135 (1974); ...