Rawlings v. Butler

• Decision Date: 10 February 1956
• Citation: 60 A.L.R.2d 285,290 S.W.2d 801
• Parties: J. C. RAWLINGS, Appellant, v. Wendell P. BUTLER, Supt. of Public Instruction of Commonwealth of Ky., et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 801

290 S.W.2d 801

60 A.L.R.2d 285

J. C. RAWLINGS, Appellant, v. Wendell P. BUTLER, Supt. of Public Instruction of Commonwealth of Ky., et al., Appellees.

Court of Appeals of Kentucky.

Feb. 10, 1956.

Rehearing Denied June 22, 1956.

Eugene Siler, Williamsburg, for appellant.

S. Arnold Lynch, Louisville, amicus curiae for American Civil Liberties Union.

J. D. Buckman, Jr., Atty. Gen., Jo M. Ferguson and M. B. Holifield, Asst. Attys. Gen., for appellee Supt. of Public Instruction.

E. C. Moore, Liberty, Robert M. Spragens, Lebanon, James R. Watts, Brandenburg, Chester O. Carrier, Leitchfield, Joseph Polin, Springfield, John C. Talbott, Bardstown, Talbott & Fulton, Bardstown, for appellee County Boards of Education.

James W. Stites, Louisville, amicus curiae.

SIMS, Judge.

This appeal is from a judgment of the Franklin Circuit Court denying an injunction and dismissing the complaint. J. C. Rawlings, as a citizen and taxpayer of Marion County, brought this class action against Wendell P. Butler, Superintendent of Public Instruction in Kentucky, and the Boards of Education of Casey, Marion, Washington, Nelson, Meade and Grayson Counties, in which he questioned on constitutional grounds the right of the State Superintendent and of the respective Boards of Education to expend public tax money in the payment of the salaries of nuns of the Roman Catholic Church teaching in the public schools of these counties when dressed in religious garb and wearing symbols of their religion; as well as the payment of rent to the Catholic Church for buildings in which public schools are taught; and the cost of transporting Catholic children to parochial schools. An injunction was asked against appellees to prevent them from this averred illegal expenditure of public funds raised by taxation, and of school funds.

The case was tried before the court upon a stipulation which showed these facts. The Sisters are all members of orders or religious communities within the Roman Catholic Church and each recognizes the Pontiff of that church as her spiritual superior. She lives and teaches under her religious name, and regularly turns over her compensation as a teacher, after deducting living expenses, to her order or religious community. 'She has assumed the religious relationship peculiar to her order, and has taken a vow of chastity, poverty, and obedience as hereafter defined. She owes obedience to the superiors of her order in spiritual matters; the reference to 'poverty' means that each sister delegates to some other person the right to control and manage any property which she might own.'

It is further stipulated, 'These Sisters, at all times during their teaching services, wear clothing similar to the following: 'The Dominican Sisters' Habit comprises a tunic and scapular of white wool. The tunic is girded with a leather belt to which is attached a rosary. The head is covered with a veil, a guimpe and a white linen headband. A mantle of black wool is worn when traveling."

The stipulation shows that the various County School Boards involved have the following number of Sisters teaching in their public, tax-supported schools: 'Casey County, 2 Sisters; Marion County, 43 Sisters; Washington County, 9 Sisters; Nelson County, 13 Sisters; Meade County, 14 Sisters; Grayson County, 3 Sisters.'

It is stipulated the school boards of these counties conduct public schools in properties owned by the Catholic Church and rented to the boards at the following prices: 'Casey County--1 building--rent free; Washington County--1 building--rent free; Marion County--various rooms--$75 per room per year; Nelson County--1 building--$900 per year; Meade County--1 building--$32 per year and 1 building--$200 per year; Grayson County--1 building--$2400 per year.'

That part of the stipulation relating to the transportation cost of children shows the Nelson County Board of Education expended for transportation of pupils during the school year 1953-1954 a total of $66,198.13, including a depreciation of 10% on school buses, amounting to $7,372.94; that parochial pupils are 19.1 per cent and public school pupils are 80.9 per cent of the total number of pupils transported; that the Nelson County Fiscal Court for that school year appropriated $10,000 to the County School Board under KRS 158.115 for the transportation of elementary pupils of parochial schools; that the school buses travel a total of 1,731.5 miles per day in picking up all students in Nelson County, with a total of 1,568 stops made per day, of which 222 stops are for parochial students only; that the total mileage occasioned by picking up parochial students only is 23.1 miles.

At the outset of his brief appellant explains he does not question the scholastic standards or the moral qualifications of the Sisters to teach in public schools; and he does not question the right of the 'ordinary Roman Catholic citizen to teach in our free public schools.' Nor does appellant contend the Sisters teach the tenets of the Catholic Church. His sole objection to their teaching is based upon the fact they wear their religious garb and emblems in the classrooms and donate their compensation to their respective religious orders after the payment of their living expenses.

The framers of the Federal Constitution, as well as the authors of the Constitutions of the various States, were careful 'to preserve and perpetuate religious liberty, and to guard against the slightest * * * inequality in the civil and political rights of citizens, which shall have for its basis only their differences of religious belief. * * * The general voice has been, that persons of every religious persuasion should be made equal before the law, and that questions of religious belief and religious worship should be questions between each individual man and his Maker.' 2 Cooley's Const.Lim. 8 Ed. p. 960.

Judge Cooley further wrote, 'Those things which are not lawful under any of the American Constitutions may be stated thus: * * * Compulsory support, by taxation or otherwise of religious instruction. Not only is no one denomination to be favored at the expense of the rest, but all support of religious instruction must be entirely voluntary. It is not within the sphere of government to coerce it.' 2 Cooley's Const.Lim. 8 Ed. pp. 966, 967.

Article 6 and the First Amendment of the Federal Constitution and §§ 1 and 5 of the Kentucky Constitution guarantee religious freedom to the citizens of this Commonwealth; while §§ 171 and 189 of our Constitution forbid the use of money raised by taxation for public purposes, or for educational purposes, to be used in the aid of any church, sectarian or denominational school.

While the dress and emblems worn by these Sisters proclaim them to be members of certain organizations of the Roman Catholic Church and that they have taken certain religious vows, these facts do not deprive them of their right to teach in public schools, so long as they do not inject religion or the dogma of their church. The garb does not teach. It is the woman within who teaches. The dress of the Sisters denotes modesty, unworldliness and an unselfish life. No mere significance or insignificance of garb could conceal a teacher's character. Her daily life would either exalt or make obnoxious the sectarian belief of a teacher.

Our General Assembly has not yet prescribed what dress a woman teaching in the public schools must wear, or whether she may adorn herself with a ring, button, or any other emblem signifying she is a member of a sorority. These Sisters are not teaching religion in the public schools or attempting to force their religious views on the pupils under their charge. The religious views of these Sisters and their mode of dress are entirely personal to them. If they were prevented from teaching in the public schools because of their religious beliefs, then they would be denied equal protection of the law in violation of the Fourteenth Amendment of the Federal Constitution. Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213.

The question of the garb worn by Roman Catholic Sisters while teaching was before the Supreme Court of Pennsylvania in 1894 in Hysong v. Gallitzin Borough School District, 164 Pa. 629, 30 A. 482, 26 L.R.A. 203, 44 Am.St.Rep. 632, and before the Supreme Court of North Dakota 42 years later in Gerhardt v. Heid, 66 N.D. 444, 267 N.W. 127, and before the Supreme Court of Indiana in 1940 in State ex rel. Johnson v. Boyd, 217 Ind. 348, 28 N.E.2d 256, and we have reached the same conclusions those courts did. In answer to the argument in briefs for appellant that the garb of the Sisters within itself impresses on the children the religious faith of its wearer, we quote from the Hysong opinion, at page 484 of 30 A.:

'The religious belief of teachers and all others is generally well known to the neighborhood and to pupils, even if not made noticeable in the dress, for that belief is not secret, but is publicly professed. Are the courts to decide that the cut of a man's coat or the color of a woman's gown is sectarian teaching, because they indicate sectarian religious belief? If so, then they can be called upon to go further. The religion of the teacher being known, a pure, unselfish life, exhibiting itself in tenderness to the young, and helpfulness for the suffering, necessarily tends to promote the religion of the man or woman who lives it. Insensibly, in both young and old, there is a disposition to reverence such a one, and at least, to some extent, consider the life as the fruit of the particular religion. Therefore, irreproachable conduct, to that degree, is sectarian teaching. But shall the education of the children of the commonwealth be intrusted only to those men and women who are destitute of any religious belief?'

Appellant relies upon O'Connor v. Hendrick, 184 N.Y. 421, 77 N.E. 612, 7 L.R.A.,N.S., 402, 6 Ann.Cas. 432, and Berghorn v. Reorganized...