Seegers v. Parker

241 So. 2d 213, 256 La. 1039

Opinions

BARHAM, Justice.

By decree rendered in this case on October 19, 1970, we declared Acts 223 and 314 of 1970 unconstitutional, permanently restrained the state officers from acting in any way to implement these acts, and issued a restraining order, effective immediately, pending the finality of the judgment. Because this matter involves the unconstitutionality of statutes authorizing the expenditure of millions of dollars of public funds, we deemed it to be to the best interest of the state to give a decision at that time without waiting to reduce to writing the reasons which impelled us to that decision. We now hand down the written reasons for our decree.

Plaintiffs, taxpayers of the state, filed this suit attacking Acts 223 and 314¹ of 1970 which authorize the expenditure for this fiscal year of $10,000,000.00 in tax funds "for the purchase by the State of Louisiana of secular educational services from teachers employed by nonpublic schools”. They sought an injunction restraining the defendants, the State Treasurer and Superintendent of Education, from implementing the legislation by expenditure of funds or other acts. The trial court issued a rule nisi, and the defendants answered, alleging the validity of the legislation. Others, including teachers in non-public schools and taxpayers, intervened. By stipulation documents were made a part of the record and other facts agreed upon. All parties applied to this court for certiorari, and because of the urgent public interest we exercised our plenary powers so that we could review the record and decide the issues.

Act 223 provides that the State Superintendent of Education shall “Make contracts for the purchase of secular educational services directly with teachers of secular subjects”. It further provides in Section 3: “(c) ‘Purchase of Secular Educational Services’ means the purchase by the Department of Education, from a school teacher, of services in teaching secular subjects to children enrolled in approved nonpublic schools. Payments shall be made directly to the teacher and such payments shall not exceed the State scale paid to teachers in the public school system”. “Secular Subject” is any course of study in the curricula of the public schools but not courses of study teaching religious beliefs or any form of worship of a sect or religion. “Approved Nonpublic School” is defined as a non-profit elementary or secondary school in the state offering education in any grades from one through 12 which complies with the requirements of the compulsory school attendance law and which is supported predominantly “from funds or property derived from nongovernmental sources”.

Funds to be disbursed for the purchase of secular teachers in non-public schools are to come from a special fund, and funds dedicated to public schools cannot be used to implement the act. If the appropriation to the “Secular Educational Services Fund” is insufficient to pay the total teacher contracts, then they are to be paid in the proportion to which the total amount of each contract bears to the moneys available in the fund.

The act states that approximately 15 per cent of our grade and elementary school pupils are in non-public schools, and the stipulation states that 69 per cent of the eligible non-public schools in Louisiana are religious-related while 31 per cent are nonreligious in character. The stipulation further reflects that 6756 teachers are eligible for funding, and that the percentage of teachers eligible in religious-related schools is 78 per cent and in non-religious schools 22 per cent.

To summarize, the act provides that the State of Louisiana shall pay qualified teachers of approved non-public schools, largely religious, an amount equal to, but not surpassing, that which teachers with similar qualifications in public schools would receive, but that such payments are to be '¡made for the teaching of only secular subjects.

The thrust of plaintiffs’ challenge to the constitutionality of these acts is that the legislation violates Article 1, Section 4; Article 4, Section 8, and Article 12, Section 13, of the Louisiana Constitution of 1921.² They urge that if the court needs to look further, the legislation is in violation of the establishment clause of the First Amendment to the United States Constitution.³

A We have no need to resort to the establishment and free exercise clauses of the First. Amendment to the United States Constitution for a determination of the issues before us since our Article 1, Section 4, embodies those provisions in full and expounds upon them in greater detail. Our decision is based exclusively on the application of our Louisiana constitutional provisions.

A bifurcated but inextricably interwoven proposition is presented to the court — aid to religious private schools and aid to nonreligious private schools; and the approach to each issue will be partly overlapping and determinative of the other. We would pose first the question of whether our state Constitution permits the appropriation of public funds to pay the salaries of teachers employed in and by sectarian schools for the teaching of secular subjects, and permits the establishment of administrative machinery to monitor instructional materials, to formulate and supervise contracts of employment, to disburse funds, and to verify that the teachers’ services purchased are free of sectarian religious content.

Our state Constitution contains three prohibitions relating to legislation of the type we are considering: (1) The prohibition against the enactment of any law “respecting an establishment of religion”, (2) the prohibition against the expenditure of any money from public sources, directly or indirectly, “in aid” of any religious group or “in aid” of anyone engaged in the capacity of minister or teacher of such group, and (3) the prohibition against appropriating funds to “any private or sectarian school”. We are of the opinion that the present acts violate all of these Louisiana constitutional prohibitions.

The prohibition of Article 1, Section 4, against the enactment of laws “respecting an establishment of religion” forbids not only the full establishment of a religion or religions, but also prohibits legislative action either advancing or in-r hibiting religion.⁴ The- great similarity of the establishment clause of our Constitution and that of the United States Constitution allows us to use the United States Supreme Court interpretations of the federal clause as an aid for interpreting our own.

Two United States Supreme Court cases are relevant to a determination of the constitutionality of these acts under our establishment clause. The first is Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), which reviewed the constitutionality of refunding bus fare to parents of children in non-public schools. The court stated that there was every reason to give to the clause prohibiting the establishment of religion the same broad interpretation previously employed by state courts in interpreting their state establishment clauses. The court in Everson held that the clause meant, at least, that: “ * * Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or 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. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. * * * ” (Emphasis here and elsewhere has been supplied.)

The second pertinent United States Supreme Court case, Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), held constitutional a New York law which authorized the lending of textbooks to grade and elementary pupils in all schools. After quoting with approval the “no aid” test set forth in Everson, it stated: “ * * * ‘The constitutional standard is the separation of Church and State. The problem, like many problems in constitutional law, is one of degree.’ Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952). See McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Based on Everson, Zorach, McGowan, and other cases, Abington Tp. School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), fashioned a test * * *. ‘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. * * * ’ ” This is commonly referred to by writers as the “purpose and primary effect” or “accommodation” test.

Running throughout all of these cases is the general concept or test of neutrality between state and church. The United States Supreme Court has used three tests for interpreting the establishment clause: “No aid”, “purpose and primary effect”, and "neutrality”. The language in Allen seems to approve all three tests, but it is contended that Allen applied only the “purpose and primary effect” test. Regardless of the principles and tests set forth in Allen, the court found that “no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools”, and held that although free books could encourage some children to attend sectarian schools, this was not “an unconstitutional degree of support for a religious institution”.

Although there is no dearth of language in the Everson and Allen decisions, the two cases stand for the simple proposition that legislation affording pupil financial benefits which do not relieve sectarian schools of any of their financial obligations is not violative of the establishment clause even though there is a possibility of indirect benefit flowing to the sectarian schools. There are other cases considering the federal establishment clause where public spending is not at issue but which are helpful in an understanding of the constitutional question: When does public expenditure which benefits sectarian institutions infringe upon the establishment clause?

Walz v. Tax Commission of City of New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), is the latest expression of the United States Supreme Court, and in considering church tax exemptions the court said there: “ * * * the questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement. Obviously a direct money subsidy would be a relationship pregnant with involvement and, as with most governtnental grant programs, could encompass sustained and detailed administrative relationships for enforcement of statutory or administrative standards * * ⁵

Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952), considered the law permitting the absence of students from public schools for sectarian study. The court stated: “ * * * Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. * * * ”

The holding in Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), prohibiting a non-denominational prayer in public schools, the holding in Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), forbidding Bible reading in public schools, and the holding in People of State of Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948), prohibiting use of public school buildings for sectarian study in free periods, are positive holdings against “blend-ting] secular and sectarian” activities in public buildings and with public education. There can be no distinction between blending sectarian and secular activities at public schools and blending these activities at private schools which are publicly supported.

It is argued by defendants and intervenors that the payment of teachers’ salaries falls into the same category as payment of pupils’ textbooks and transportation found constitutionally permissible in the Everson and Allen cases. To the contrary, there is a great difference. We readily conclude from the findings of fact within the act that the Legislature has found that the sectarian schools are obligated, to furnish teachers and revenue for teachers’ salaries in those schools. The Legislature’s primary basis for funding non-public schools is that the financial crisis in those schools has forced them into a non-competitive position with the public schools for the employment of qualified teachers. Moreover, those cases concerned support for non-essentials to education. Education, including non-public education, can be provided without transportation and books, for education is pedagogic. One of the greatest schools of all times existed without the benefit of books, buildings, and transportation facilities — the Socratic school. It is to be seen, then, that these acts fund sectarian schools by relieving them of their first and primary financial burden, and differ greatly from legislative funding of ancillaries to education which are nonobligatory upon the schools and which are of monetary expense only to the pupils and their parents.

The findings of fact which preface the act before us, after declaring that a financial crisis exists in both public and nonpublic schools, state in part that “nonpublic schools have been reduced to a noncompetitive position for the employment of qualified teachers of secular educational subjects”, and that “the State of Louisiana has the right, the responsibility, the duty and the obligation * * * to provide financial assistance to qualified teachers of secular subjects in nonpublic schools, by the purchase of their secular educational services”.

Thus it may be seen that if we apply only the “purpose and primary effect” ⁶ test set forth in Schempp and Allen, we would find that the purpose of this act is to subsidize sectarian schools, the closing of which would cast an increased student burden upon the public school system. The Legislature proposes to expend public funds to assure the continuation of these sectarian schools. This would assure the continued advancement of the faiths they represent, which, as said in Walz, is their “affirmative if not dominant policy”.

We do not look to the conduit used for furnishing financial aid to sectarian institutions. We are concerned only with whether through that conduit the sectarian institution is the beneficiary of that aid, whether the purpose and effect of that aid are to relieve the sectarian institution of a financial responsibility, whether that aid will further the sectarian interest of that institution, and whether that aid will bring about a forbidden involvement and entanglement of church and state.

The primary effect of legislation is not always what the legislators believe and expound in their statements of purpose. The primary effect of this legislation would transform a single, centralized public school system into a dual one incorporating nonpublic schools. There will emanate from this double-headed system a new species of state-financed and state-regulated education. These acts attempt to separate the secular from the religious services rendered by sectarian schools and place the secular segment under a state-administered school program. No one would contend that at this point under the particular acts total control of religious schools is vested in the state. However, it is necessary to conclude that the constitutionally improper degree of entanglement and pregnant involvement is effectuated under this legislation.

The purchase of secular instruction from sectarian schools sets up unavoidably confrontations and conflicts between public and religious institutions and between public administrators and religious administrators over the boundary between secularity and sectarianism in instruction. In order to confine public funding to secular teaching, conscientious public officials must engage in a concentrated program of inspection and monitoring. Perhaps these officials can totally disassociate the secular from the sectarian as applied to their program, but it is well to note that after almost 200 years the courts have found that dilemma persisting. But the attempt to find and maintain the lines of separation would itself require excessive state involvement in religion. The policing required to carry out the legislative intent here would set religious groups and state officials at odds over the delineation of what each considers proper lines of demarcation. With noble fervor on the part of each, one would press for a high level of religious influence and the other for a total vacuum surrounding the secular program.

If the state is not intrusive upon and limiting of the free administration of sectarian institutions, secularity cannot be assured, and advancement of religion will ensue. And if the state acts zealously to guard the establishment principle and the legislative intent, its entanglement and involvement will most surely inhibit, deter, alter, and impinge upon religious freedom. The conflicts of state and religion which will emanate from the administration of this act are the very evil sought to be avoided by Article I, Section 4, of our Constitution. Those who now seek Caesar’s gold will one day seek redress from the payment to Caesar of that which invariably comes with his gold, his control.

We believe these acts furnish that subsidization and involvement which are repugnant to the Louisiana Constitution, Article 1, Section 4.

Since much of the argument before us revolved around the economic advantage to the state and the serving of its economic interests, we must note that in considering the constitutionality of legislation involving the basic rights preserved in our Constitution such as those at issue, we may not look to the wisdom or the reasonableness of the legislation. These basic rights arc not subject to modification by legislative action or majority approval; they are subject only to interpretation and application by the courts or to change by the constitutional amendment process. The finding of a crisis by the Legislature will not justify legislative encroachment in this field. The government cannot finance religious institutions even with the assurance that such a program will produce a smaller over-all tax burden or avoid new and onerous state responsibilities.

We would be remiss if we did not state that, contrary to the dissenting opinion which has been previously filed, this act does not provide supplemental pay as that term is ordinarily used. The act permits the payment from state funds to non-public school teachers, regardless of the amount received from other sources as salary, an amount equal to the salaries of teachers of the same qualifications in the public school system. Although the initial appropriation is $10,000,000.00, on the basis of the facts in this record and the salary schedule of public school teachers in Act 397 of 1968 we estimate that full implementation as permitted by the act would cost the taxpayers well in excess of $50,000,000.00 annually.

Our lengthy discussion of the application of Article 1, Section 4, does not mean that it is the primary basis for our holding of unconstitutionality. We have felt obligated to meet the contentions of the parties as presented to us, and they relied greatly on this provision. However, these acts are in violation of two other provisions of the Louisiana Constitution. The other constitutional prohibitions buttress the conclusion we have reached above, and the discussion above buttresses a conclusion that these other prohibitions make the acts before us unconstitutional.

All of the United States Supreme Court cases and many of the state cases which have decided issues similar to that confronting us were concerned with only one prohibition against church-state involvement, the prohibition against the enactment of legislation respecting the establishment of religion; but we in Louisiana are more limiting of governmental involvement in religious activities, in the expending of public funds, and in aiding non-public schools. We note several recent cases arising in other states in both federal and state courts. Several of these are now pending in the United States Supreme Court.⁷ We, like the Massachusetts court in Opinion of the Justices, 258 N.E.2d 779 (1970), find that because of special provisions contained in our Constitution the cases arising in Pennsylvania, New Hampshire, Rhode Island, Michigan and Maine are inapposite to our decision. That court said:

“ * * * The language unquestionably was designed to preclude entirely aid to all nonpublic institutions from appropriated public funds with minor exceptions not here relevant.

“ * * *

“ * * * It is still applicable despite changed conditions and probably somewhat different public attitudes. The existence of an emergency * * * cannot alter the unequivocal terms of art. 46, § 2 [prohibition against expenditure of public funds to any private school]. It constitutes a binding constitutional restraint upon the General Court and upon us until and unless it is changed by some method permitted by the Constitution of the Commonwealth.

“Opinions from other States, with different constitutional provisions, are not controlling. * * * ”

We are further of the opinion that any United States Supreme Court decision founded solely upon the First Amendment of the United States Constitution would not be controlling of the case before us.

The second prohibition of our Constitution is found under Article 4 providing limitations upon the legislative power. Article 4, Section 8, provides: “No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such * *

We have previously stated that the act itself recognizes the financial obligation upon the religious sects for maintaining teachers in their educational institutions, and we recognize that this legislation would relieve the churches of the burden of this enormous aggregate cost. This is in contravention of the prohibition against giving “aid” directly or indirectly to any church or religious sect or denomination. It is immaterial under this clause of Article 4, Section 8, that the aid to the religious institution is channelled through the teachers. The obvious effect and purpose are to aid the religious sects in maintaining institutions which teach the tenets of their faith as well as secular subjects.

In support of defendants’ contention that teachers of secular subjects in sectarian schools may receive financial support although the school itself could not be the beneficiary, an attempt is made to interpret the language of the provision so that the word “teacher” means “teacher of religion”. We cannot accept this unsound interpretation, but in any event this contention cannot influence our decision since we have already concluded that the act provides substantial aid to religious institutions.

We must construe Article 4, Section 8, as a total provision which particularly forbids the Legislature from expending any funds directly or indirectly in aid of any religious institution. That section provides a specific limitation upon using public funds for the support of any non-public institution.⁸

The cases of Borden v. Louisiana State Board of Education, 168 La. 1005, 123 So. 655, and Cochran v. Louisiana State Board of Education, 168 La. 1030, 123 So. 664, involved the constitutionality of legislation authorizing the lending of free school books to all Louisiana children. We have deliberately deferred a discussion of them because the United States Supreme Court affirmed these decisions in Cochran v. Louisiana State Board of Education, 281 U.S. 370, 50 S.Ct. 335, 74 L.Ed. 913 (1930), on a basis other than separation of church and state.⁹

The Borden and Cochran cases were decided by the Louisiana Supreme Court under basically the same state constitutional provisions with which we are now involved. This court found that the lending of books to all pupils in all schools served a public purpose, and that since it was aid to the pupil and the pupil's parents, it was not violative of the prohibition against aid to private and sectarian schools which is condemned in the several constitutional provisions. The pertinent language in Borden was adopted and repeated by the United States Supreme Court in affirming Cochran : “ * * * The schools, however, are not the beneficiaries of these appropriations. They obtained nothing from them, nor are they relieved of a single obligation, because of them. The school children and the state alone are the beneficiaries. * * ” We have found that because the payment of teachers’ salaries in sectarian schools relieves the various religious faiths of enormous financial obligations and is aid to religious institutions, the Borden and Cochran cases, like Everson and Allen, are not applicable.

Finally, the third prohibition against funding non-public schools is contained in Article 12 of the Louisiana Constitution. That article is titled “Public Education”, and its first section provides in part: “The legislature shall provide for the education of the school children of the state. The public school system shall include all public schools and all institutions of learning operated by state agencies.” Section 13 of Article 12 is explicit: “No appropriation of public funds shall be made to any private or sectarian school. * * * ” The dissent previously filed has concluded that an amendment to this provision, which, among other things, changed the language from “used for the support of” to “made to”, effected a vital change which would allow indirect public funding of private and sectarian schools through the payment of teachers’ salaries. We cannot accept this conclusion, for such a construction would disregard the purpose of Article 12 and other constitutional provisions. The prohibition is against any appropriation — direct or indirect — to any non-public school.

We have expressed in Article 12 of our Constitution our dedication to a public-supported public school system operated by state agencies and providing free education to the children of our state. Public funds for public education shall be expended only in the furtherance of “public schools". The prohibition under Article 12 of the Louisiana Constitution is all-determinative of both propositions — that is, aid to private sectarian and aid to private non-sectarian schools. We do not require, for it would be constitutionally impermissible, that educational pursuits be followed only in public institutions of learning; but for those who cannot afford or do not choose private or sectarian education, we have provided free public education through one institution, the public school system, and all of every persuasion and faith may partake of it. We are aware that private education has rendered a valuable service to this state and this country. So long as it exists as independent educational facilities without governmental control, it will continue to render that valuable service. Indeed, were all education coerced through governmental systems, there could be danger of indoctrination and regimentation, and the present healthy diversity of educational institutions would be eliminated.

We have concluded that the purchase of secular teacher services by payment of sectarian teachers’ services is aid to religious institutions, and that Everson, Allen, Borden, and Cochran do not extend to this legislation. We therefore hold that this legislation is unconstitutional under Article 1, Section 4, and Article 4, Section 8. Although the demarcation line between church and state is often difficult to ascertain, the activity permitted by this legislation would be that giant “second step” which would bring government into an involvement and entanglement forbidden by the establishment clause of our Constitution and forbidden by the constitutional provision restricting legislative spending of public moneys. We further hold that this legislation violates Article 12, Section 13, which is an explicit and unambiguous constitutional answer to all of the questions presented here.

The less restrictive guidelines laid down in some of the United States Supreme Court cases, such as the “purpose and primary effect” test, are not determinative of this Louisiana legislation. Because of our particular constitutional provisions the only test which need be applied for a determination of whether public funding may be made available to any non-public school, sectarian or non-sectarian, is whether such funding contributes directly or indirectly any aid to those schools. This legislation fails to meet this “no aid” test.

Our previous decree is repeated for convenience :

IT IS ORDERED, ADJUDGED AND DECREED that Acts 223 and 314 of 1970 are declared unconstitutional.

IT IS FURTHER ORDERED that there be judgment herein in favor of the plaintiffs, Sidney A. Seegers et al., and against the defendants, Mary Evelyn Parkcr, Treasurer of the State of Louisiana :and William J. Dodd, Superintendent of Education for the State of Louisiana, and the defendants are ordered and permanently restrained from administering, acting under, or expending funds under Acts 223 and 314 of 1970.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that pending the finality of this judgment, the said defendants are hereby restrained from expending any funds or doing any act to carry into effect the provisions of said .acts.

1 . Act 223 is the enabling act and Act 314 the appropriating act. Our discussion will bear principally upon the former, for the latter stands or falls on our decision as to the former.

2 . The pertinent provisions of the Louisiana Constitution are:

“Every jmrson has the natural right to worship God according to the dictates of liis own conscience. No law shall be passed respecting an establishment of religion, nor prohibiting the free exercise thereof; nor shall any preference ever be given to, nor any discrimination made against, any church, sect or creed of religion, or any form of religious faith or worship.” Art. 1, Sec. 4. (Emphasis here and elsewhere has been supplied.) “No money shall ever be taken from .the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such, and no preference shall ever bo given to, nor any discrimination made against, any church, sect or creed of religion, or any form of religious faith or worship. No appropriation from the State treasury shall be made for private, charitable or benevolent purposes to any person or community; provided, this shall not apply to the State Asylums for the Insane, and the State Schools for the Deaf and Dumb, and the Blind, and the Charity Hospitals, and public charitable institutions conducted under State authority.” Art. 4, Sec. S.

“No appropriation of public funds shall be made to any private or sectarian school. * * *” Art. 12, Sec. 13.

3 . The First Amendment to the United States Constitution provides in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * *

4 . The historical background of the First Amendment to the United States Constitution is a valuable source for study in understanding our own establishment provision. Mr. Justice Rutledge dissenting in Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 t.Ed. 711 (1947), stated : “No provision of the Constitution is more closely tied to or given content by its generating history than the religious clause in the First Amendment. It is at once the refined product and the terse summation of that history.” Although it may be argued that the First Amendment forbade congressional interference with state regulation of religious rights or perhaps even state establishment of a religion, it has been made applicable to the states. The members of the United States Supreme Court through many pronouncements in majority, concurring, and dissenting opinions have recognized that the final version of the First Amendment was an evolvement intending to forbid all laws respecting an establishment of religion, and was deserving of a broad interpretation “in light of its history and the evils it was designed forever to suppress”. Everson v. Board of Education, supra; McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). See also Mr. Justice Black’s majority opinions in Everson v. Board of Education, supra, and Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), for historical background and a correlation of the First Amendment to state pi-ohibitions against church and state relations. When the establishment clause and the free exercise clause, either of the United States Constitution or of our Constitution, are read together, it is clear that their purposes are tridental: (1) To protect the individual in his, and from others’, religious beliefs or non-beliefs; (2) to protect the individual from the coerced deprivation of his private moans for the support and aid of religious activities or espousals; and (3) to insure civil government without intrusion or domination by sectarian orders.

5 . Walz erroneously stated that the loan of books in Allen relieved churches of an “enormous aggregate cost for those hooks”. Walz bottoms that conclusion on a mistaken finding of facts. It was specifically stated in Allen that “the financial benefit is to parents and children, not to schools”. Allen noted (footnote 6, 392 U.S. p. 244, 88 S.Ct. p. 1927) that the record contained no evidence that “any of the private schools in appellants’ districts previously provided textbooks for their students”, and quoted from the commissioner of education that “Nonpublic schools rarely provide free textbooks”.

6 . Jurists and legal writers find Everson, Zorack, Engel, McCollum, Schempp, Allen and Walz to stand for many different propositions. We do not here adopt the “purpose and primary effect” test as the proper test to be applied. We find it, however, to be the one most favorable to the defendants’ position, for we easily conclude under the “no aid” and “neu'trality” tests that these acts fall.

7 . Lemon v. Kurtzman, 310 F.Supp. 35 (D.C.E.D.Pa.1969), prob. jur. noted 397 U.S. 1034, 90 S.Ct. 1354, 25 L.Ed.2d 646; Tilton v. Finch, 312 F.Supp. 1191 (D.C. Conn.1970), prob. jur. noted 399 U.S. 904, 90 S.Ct. 2200, 26 L.Ed.2d 55S; DiCenso v. Robinson, 316 F.Supp. 112, stay order for appeal issued 399 U.S. 918, 90 S.Ct. 2225, 26 L.Ed.2d 785. See also the very recent decision of Johnson v. Sanders, on the docket of the United States District Court, District of Connecticut, -F.Supp. - (1970) in which a three-judge federal court held the pur-chase of secular educational services from private schools unconstitutional under the First-Amendment of the United States Constitution.

8 . The final sentence of Article 4, Section 8, provides: “No appropriation from the State treasury shall be made for private, charitable or benevolent purposes to any person or community; provided, this is not applied to the State Asylums for the Insane, the State Schools for the Deaf and Dumb, and the Blind, and the Charity Hospitals, and public charitable institutions conducted under State authority”

9 . When this ease was considered by the United States Supremo Court, that court had not made the First Amendment applicable to the states through the Fourteenth Amendment.