Legislature's Request for An Opinion on Constitutionality of Chapter 2 of Amendatory Act No. 100 of Public Acts of 1970 (Enrolled Senate Bill No. 1082), In re, 15

Citation180 N.W.2d 265,384 Mich. 82
Decision Date05 October 1970
Docket NumberNo. 15,15
PartiesIn the Matter of the LEGISLATURE'S REQUEST FOR AN OPINION ON the CONSTITUTIONALITY OF CHAPTER 2 OF AMENDATORY ACT NO. 100 OF the PUBLIC ACTS OF 1970 (ENROLLED SENATE BILL NO. 1082).
CourtSupreme Court of Michigan

Harold R. Smith, Grosse Pointe Farms, pro se.

Stuart D. Hubbell, Traverse City, John Feikens, Shlomo Sperka, Detroit, for amici curiae, Council of Eastern Orthodox Churches of Greater Detroit; Lutheran Schools of Michigan--Missouri Synod; Michigan Association of Non-Public Schools; Michigan Catholic Conference; Michigan Federation of Citizens for Educational Freedom; National Jewish Commission on Law and Public Affairs; National Union of Christian Schools.

MacLean, Seaman, Laing & Guilford, Lansing, for amicus curiae Michigan Education Association.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, amicus curiae.

Before the Entire Bench except KELLY, J.

T. M. KAVANAGH, Justice.

We were requested by the Legislature, pursuant to art. 3, § 8, of the Michigan Constitution of 1963, to pass upon the constitutionality of chapter 2 of amendatory Act No. 100 of the Public Acts of 1970. 1

This act of the Legislature comes before our Court clothed with the presumption of constitutionality, and we must scrupulously sustain the legislative will if within the constitutional limitations of its function. 1 Cooley, Constitutional Limitations, ch. 4 (8th et., 1927); Evans Products Co. v. State Board of Escheats (1943), 307 Mich. 506, 12 N.W.2d 448; Beacon Club v. Kalamazoo County Sheriff (1952), 332 Mich. 412, 52 N.W.2d 165; Gartland Steamship Company v. Corporation & Securities Commission (1954), 339 Mich. 661, 64 N.W.2d 886, and cases cited therein; Munn v. Illinois (1876), 94 U.S. 113, 24 L.Ed. 77.

It is likewise incumbent upon our Court to give effect to the plain and clear intent of the Legislature irrespective of possible view of any Justice or Justices that such intent is unwise or impolitic. C. F. Smith Co. v. Fitzgerald (1935), 270 Mich. 659, 671, 259 N.W. 352.

Turning to the specific provisions of the act we note that it provides for the purchase by the Department of Education from eligible units 2 of educational services in secular subjects 3 at a cost of not to exceed 50 per cent of the salaries of lay teachers teaching secular subjects for the fiscal years 1970--71 and 1971--72 and 75 per cent of such salaries thereafter. The sum appropriated by the Legislature is limited to 2 per cent of the total expenditures from State and local sources for the support of the public primary and secondary education system in the last preceding fiscal year. 4 The payments are restricted to certified lay teachers 5 teaching secular subjects from texbooks meeting the criteria required of textbooks used in public schools. The act expressly prohibits payment or reimbursement for services to any teacher who is 'a member of a religious order * * * or who wears any distinctive habit, or both' (sec. 55, subd. (b)) or for 'any course of instruction in religious or denominational tenets, doctrine or worship or the primary purpose of which is to inculcate such tenets, doctrine or worship.' (sec. 55, subd. (d))

Participation under the act by nonpublic schools (eligible units) is wholly voluntary. To qualify, an eligible unit must file a timely application with the Superintendent of Public Instruction, furnish appropriate certification listing lay teachers, their salaries and their State certification status, 5 provide a compliance certificate as to Title VI of the Federal Civil Rights Act of 1964 7 and the Michigan constitutional anti-discrimination clause, 8 and maintain an accounting system segregating allowances attributable to payment of the certified lay teachers teaching secular subjects. 9

The intent of the Legislature in passing this law is clearly, plainly and unambiguously stated in section 56 of the act:

'Sec. 56. The legislature finds that large numbers of children are being educated in nonpublic elementary and high schools in this state and further finds that increasing costs of education are impairing the quality of secular education of children enrolled in nonpublic schools lawfully selected by their parents. These schools perform, in addition to their sectarian function, the task of secular education. The legislature declares as public policy of the state that the public good and general welfare require that state appropriations now provided to public school districts under this act for the purpose of furnishing opportunities for public school children to secure a quality secular education be extended to assist in providing opportunities for quality secular education to children attending nonpublic elementary and high schools, as part of a general program to foster and encourage knowledge so as to provide a mature citizenry capable of contributing to good government, and to the safety and the economic and civil well-being of all the people of this state.'

The intent, being so clearly expressed, precludes resort to rules of construction and our sole function at this juncture is to determine whether such plain intent and concordant design is violative of constitutional principles, either Federal or State.

I. The Free Exercise and Establishment Clauses of the First Amendment.

The First Amendment to the Federal Constitution provides in pertinent part:

'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * *.'

We should heed well, prior to embarking upon any constitutional interpretation, the advice most recently expressed by Mr. Chief Justice Burger in Walz v. Tax Commission of City of New York (1970), 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697, that it is a Constitution we are expounding and we must, therefore, judiciously refrain from relying upon sweeping utterances from other cases which may be appropriate to those cases but have limited meaning as general principles. 10

The argument is often advanced that the United States Supreme Court has held unconstitutional all education benefits extended to nonpublic schools. The contrary is true for that Court has upheld statutes providing textbooks (Cochran v. Louisiana State Board of Education (1930), 281 U.S. 370, 50 S.Ct. 335, 74 L.Ed. 913; Board of Education of Central School District No. 1 v. Allen (1968), 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060) and bus transportation (Everson v. Board of Education, Supra) for nonpublic school children, as well as statutes involving 'released time' for attendance at religious instruction or devotional exercises off the premises of public schools (Zorach v. Clauson, Supra). The only cases in which state educational programs have been held violative of the Free Exercise or Establishment Clause by the United States Supreme Court are those involving religious instruction or exercises In public schools. People of State of Illinois ex rel. McCollum v. Board of Education (1948), 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (Religious instruction in public schools); School District of Abington Township v. Schempp, Supra (Bible reading in public schools); Engel v. Vitale (1962), 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (Reading of prayer in public schools). Accordingly, ritualistic invocation of the nonconstitutional phrase 'separation of church and state' will not suffice. What is compelled is an analysis of just what the 'neutrality' is which is required by the interplay of the Establishment and Free Exercise Clauses of the First Amendment. 11

In drawing the line between the secular and sectarian, between legislation which provides funds for the welfare of the general public and that which is designed to support institutions which teach religion, the United States Supreme Court 12 has consistently utilized the concept 13 of neutrality. This concept of neutrality was well described by the Court in School District of Abington Township v. Schempp (1963), 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844:

'The wholesome 'neutrality' of which this Court's cases speak thus 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, as we have seen, the two clauses may overlap.' (p. 222, 83 S.Ct. at p. 1571)

The application of the concept to the facts of the case or controversy is tested by the standard implied in Everson, recognized in Schempp, reiterated in Allen, and applied most currently in Walz:

'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.' (Schempp, supra, p. 222, 83 S.Ct. at p. 1571) (Emphasis added.)

Applying the first factor of this two-fold test--the 'secular legislative purpose'--we observe that it is only the Legislative purpose with which we are concerned and not the sectarian purposes of nonpublic schools. The fact that the enactment incidentally furthers the sectarian purposes of the individuals or organizations most directly affected does...

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