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
Citation | 180 N.W.2d 265,384 Mich. 82 |
Decision Date | 05 October 1970 |
Docket Number | No. 15,15 |
Parties | In 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). |
Court | Supreme 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.
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:
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.
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 ( ); School District of Abington Township v. Schempp, Supra ( ); Engel v. Vitale (1962), 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 ( ). 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 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:
(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...
To continue reading
Request your trial-
Scalise v. Boy Scouts of America, Docket No. 244883.
... ... Pleasant Public Schools, Defendants-Appellees ... Docket No ... Released for Publication March 2, 2005 ... 692 N.W.2d 864 ... to dismiss that portion of the November opinion and order that sustained the plaintiffs' claim ... Advisory Opinion re Constitutionality of 1970 Pa. 100, 384 Mich. 82, 105, 180 N.W.2d ... Under both acts, Mt. Pleasant is a protected educational ... ...
-
Milliken v. Green
...of Education, 382 Mich. 620, 624, 171 N.W.2d 545, 546 (1969).As stated by Justice Adams dissenting in Advisory Opinion re Constitutionality of PA 1970, No. 100, 384 Mich. 82, 106, 180 N.W.2d 265, 275 (1970):'Free public education for all is a responsibility of the State. It is state busines......
-
Snyder v. Charlotte Public School Dist., Eaton County
... ... In the 1981-1982 school year, plaintiffs enrolled their daughter Brenda as a full-time sixth grade ... Const.1963, art. 8, Sec. 2 provides for the establishment of the public ... See 1976 Journal of the Senate 2622 ... Parents and guardians ... City, this Court ruled on the constitutionality of Proposal C, the amendment to Const.1963, art. 8, Sec. 2, which was ratified in the 1970 referendum. This "anti-parochiaid" amendment ... 183 (November 3, 1970). In an opinion written by Justice Williams, [421 Mich. 532] this ... Regan, 444 U.S. 646, 658, 100 S.Ct. 840, 848, 63 L.Ed.2d 94 (1980); New York ... language of the original statute and later acts that specifically prohibited discrimination on ... by defendant's denial of plaintiff's request for selective admission even though there is no ... ...
-
Requests of Governor and Senate on Constitutionality of Act No. 294 of Public Acts of 1972, In re
...the same sense as a decision of the Court after a hearing on the merits. The Court said in the Advisory Opinion re Constitutionality of P.A.1970, No. 100, 384 Mich. 82, 180 N.W.2d 265 (1970), that legislation is 'clothed with the presumption of constitutionality' and must be sustained if wi......
-
Referenda, initiatives, and state constitutional no-aid clauses.
...18 WAYNE L. REV. 245, 245, 254-56 (1972). (186) See In re Legislature's Request for an Opinion on the Constitutionality of 1970 PA 100, 180 N.W.2d 265, 273-74 (Mich, (187) Richard D. McLellan, The Michigan Voucher Proposal Would Pass a Constitutional Challenge, 2001 L. REV. MICH. ST. U. DET......