Opinion of the Justices to the Senate and the House of Representatives

Massachusetts Supreme Judicial Court1913

214 Mass. 599

Summary · law.co

Holding. The Court answered affirmatively that the Constitution guarantees absolute religious freedom and prohibits laws establishing or restraining particular religions; held that tax money for common schools must be used exclusively for those schools and cannot support religiously affiliated schools; and answered that the constitutional question regarding direct appropriations to churches and religious societies presents a legislative matter on which the Justices were divided rather than a clear legal prohibition.

The Massachusetts Supreme Judicial Court addressed three questions from the legislature regarding religious freedom and public funding. The Court explained that the Massachusetts Constitution strongly encourages religious practice and public worship while simultaneously guaranteeing absolute freedom of religious belief and unrestricted religious practice, limited only by requirements to maintain public peace and fulfill civic obligations. On the question of appropriating public money for schools, the Court distinguished between public or common schools—which must receive tax dollars exclusively and cannot be diverted to schools maintained by religious sects—and higher educational institutions like colleges and universities, which may receive public appropriations regardless of sectarian control. Regarding direct appropriations to churches and religious organizations, the Court was divided: the Chief Justice and three Justices concluded such appropriations are constitutionally prohibited, while three other Justices disagreed, leaving the matter as a legislative rather than purely legal question.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Constitutional guarantee of religious freedom and prohibition on religious establishment
Permissibility of public funding for schools operated by religious sects
Distinction between common schools and higher educational institutions for funding purposes
Whether direct public appropriations to churches are constitutionally prohibited

Procedural posture

The Massachusetts Supreme Judicial Court issued advisory opinions in response to questions submitted by joint order of the General Court regarding constitutional limits on religious legislation and public appropriations.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

To the Honorable the Senate and the House of Representatives of the Commonwealth of Massachusetts:

We, the Justices of the Supreme Judicial Court, having considered the questions proposed in the joint order of the General Court, which was received by us on May 7 and a copy of which is hereto annexed, respectfully answer as follows:

The Constitution of the Commonwealth in several clauses inculcates the practice of religion and urges the public worship of God, as essential means for the perpetuation of republican institutions. But in emphatic and unmistakable terms, it guaran* tees to all our people absolute freedom as to religious belief and liberty unrestrained as to religious practices, subject only to the conditions that the public peace must not be disturbed nor others obstructed in their religious worship or the general obligations of good citizenship violated. This is clear from art. 2 of the Declaration of Rights and art. 11 of the Amendments, which absolutely prohibit the enactment of any law establishing any particular religion or restraining the free exercise of any particular religion. We answer “Yes” to the first question.

So far as the second question relates to the appropriation of money for schools the answer is simple. Article 18 of the Amendments to the Constitution was adopted because of a deep seated conviction of the imperative necessity of preserving the public school system in its integrity and of guarding it from attack or change by explicit mandate. Public schools never have been understood to include higher institutions of learning like colleges and universities. All moneys raised by taxation for the purpose of expenditure within the sphere of the public or common schools, as these words generally have been understood, must be disbursed exclusively for the support of such schools and cannot be diverted to any other kind of school maintained in wholé or in part by any religious sect. But there is no constitutional prohibition of appropriations for higher educational institutions, societies or undertakings under sectarian or ecclesiastical control. Merrick v. Amherst, 12 Allen, 500. Jenkins v. Andover, 103 Mass. 94.

So far as the second question relates to the appropriation of public money for aiding any church, religious denomination or religious society, it presents more difficulty. The Chief Justice and Justices Morton, Braley and De Courcy are of opinion that such an appropriation is prohibited by the Constitution and its Amendments, while Justices Hammond, Loring and Sheldon incline to the opposite conclusion. It has been said repeatedly that answers given by the Justices to questions propounded by the Legislature have not the binding force of decisions of the court, but are the opinions of the individual justices acting as constitutional advisers to a co-ordinate department of the government. The doctrine of stare decisis does not apply to them, but they are open to reconsideration and revision. Green v. Commonwealth, 12 Allen, 155, 164. Opinion of the Justices, 5 Met. 596, 597. Opinion of the Justices, 126 Mass. 557, 566. Whether under these circumstances the existing provisions of the Constitution “adequately prohibit” the appropriation of money raised by taxation for these purposes so that there is no “necessity for the adoption of an amendment” to this end, presents a legislative question rather than a question of law.

. The answers already given render unnecessary any further answer to your third question.

Arthur P. Rugg.

James M. Morton.

John W. Hammond.

William Caleb Loring.

Henry IC. Braley.

Henry N. Sheldon.

Charles A. De Courcy.