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Supreme Court Reserves Decision on Federal Aid for Sectarian Schools

March 13, 1968
See Original Daily Bulletin From This Date

The U.S. Supreme Court reserved judgment today after hearing arguments in a major test case on the right of taxpayers to challenge the constitutionality of Government expenditures for sectarian schools. Leo Pfeffer, special counsel of the American Jewish Congress, argued in behalf of seven New Yorkers seeking to upset certain provisions of the Federal Elementary and Secondary Education Act of 1965. He urged the high court to accept jurisdiction in the case. He said the controversy was “particularly fitted for judicial resolution” and warned that if the court did not grant the individual taxpayer standing to sue in First Amendment cases, “there would be no way, for example, to challenge a $1 million Federal grant for the construction of a church.”

The American Jewish Congress attorney was joined in his pleading by Senator Sam. J. Ervin, Democrat of North Carolina, who told the courts “Every American has a right not to be taxed for the support of a religion in violation of the First Amendment. It is this precious right that is at stake in this case.”

Arguing for the Government position that the Supreme Court does not have jurisdiction in the case, Solicitor-General Erwin Griswold raised the question of the separation of governmental powers. Under this constitutional doctrine, he said, “the judiciary may not intrude upon the competence or authority of another branch of government.”

Mr. Griswold urged the court to abide by its 1923 decision in the Frothingham case, which held that a taxpayer does not have standing to sue the government because his contribution in the form of taxes is too small to give him a real interest in a court decision. During the argument, Associate Justice Potter Stewart asked Mr. Griswold whether he agreed with Mr. Pfeffer’s contention that the Frothingham Doctrine did not cover First Amendment cases. Justice Stewart noted that under the First Amendment, taxation to support religion is specifically prohibited. The Solicitor-General replied that he did not agree that the First Amendment specifically barred taxation for religious purposes. Associate Justice William O. Douglas then asked: “Do you know a better way to establish religion than by taxation?”

Friend of the court briefs supporting the AJC position were filed by the National Council of Churches, the Council of State School Officers, Protestants and Other Americans United For Separation of Church and State, United Americans for Public Schools and all of the national member agencies of the National Community Relations Advisory Council with the exception of the Union of Orthodox Jewish Congregations of America. Briefs on the Government side were filed by the AFL-CIO, a group of parents of children benefiting from Federal aid programs in sectarian schools in New York and the National Jewish Commission on Law and Public Affairs, an Orthodox-supported agency.

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