Discrimination in Restaurants; Antenuptial Agreements; The Law against Contraception; Developments Since "The School Bus Challenge";
Discrimination in Restaurants; Antenuptial Agreements; The L aw against Contraception; Developments Since " The S chool Bus Challenge";
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Discrimination in Restaurants
The right to service in a public roadside
restaurant without regard to color might
seem fundamental. Yet, because no state
or federal action is involved - only
personal discrimination - food to a traveler
may be refused. So long as such refusal
is a result of business choice by individual
proprietors catering to the desires or
prejudices of their customers, no constitutional
right has been impinged and no
recoursemay be had to the courts. In Slack v.
Atlantic White Tower System, Inc.' local
practice allowed restaurant service to
Negroes on a take-out basis but did not allow
them to eat inside the restaurant. The
continued operation of such a restaurant by
virtue of a state license was held not to
be state action within the prohibition of
the Fourteenth Amendment.
In 1883, the Supreme Court, in holding
unconstitutional the Federal Civil Rights
Act 2 with its provisions against
discrimination in such public places as restaurants,
analyzed the position of the Freedman. He
was no longer a "mere child" who "needed
the protection which a wise government
extends to those who are unable to
protect themselves," 3 but a legally accepted
citizen. The majority in the Civil Rights
Cases,4 while holding that private
discrim1 181 F. Supp. 124 (D. Md. 1960).
2 Civil Rights Act of 1875, ch. 114, § 1, 18 Stat.
s Strauder v. West Virginia, 100 U.S. 303, 306
4 109 U.S. 3 (1883).
ination could not be prevented by federal
legislation, recognized that:
Innkeepers and public carriers, by the laws
of all the States, so far as we are aware, are
bound, to the extent of their facilities, to
furnish proper accommodation to all
unobjectionable persons who in good faith apply
This simply restated the common-law
tradition of right to service without
discrimination at an inn bottomed on the
quasi-public nature of the business and the
practical necessity of lodging and meals
for a traveler. 6 The Court did not decide
whether service was an essential civil right.
However, it would seem that the same
reasoning should apply to a roadside
restaurant. By literally interpreting and
applying the rule to inns and hotels only, the
courts have allowed a restaurateur to
discriminatorily select his clientele on the
basis of color without fear of legal
sanction.7 He is not an innkeeper charged with
a duty to serve everyone who applies,8
5 Id. at 25.
6 DeWolf v. Ford, 193 N.Y. 397, 401, 86 N.E.
527, 529 (1908). The English common law
required an innkeeper to receive all travelers at
reasonable prices. 21 HALSBURY's LAWS OF
ENGLAND 445, 446 (3d ed. 1957); Hartman, Racial
and Religious Discrimination by Innkeepers in
U.S.A., 12 MODERN L. REV. 449 (1949).
7 Nance v. Mayflower Tavern, Inc., 106 Utah 517,
150 P.2d 773 (1944). See also Noble v. Higgins,
95 Misc. 328, 329, 158 N.Y. Supp. 867, 868 (Sup.
s Alpaugh v. Wolverton, 184 Va. 943, 948, 36 S.E.
2d 906, 908 (1946), cited in Williams v. Howard
Johnson's Restaurant, 268 F.2d 845, 847 n. 1 (3d
and, absent statutes, such a practice cannot
be eliminated. Until the patron shows he
is an overnight guest, and not one merely
entering for a meal, dining service may be
The failure to bring restaurant service
within the ambit of civil rights protected
by the privileges and immunities clause10
highlights the inherent conflict between the
minority's right not to be discriminated
against as a group and the individual's
right to choose freely his associates. The
Supreme Court struck down federal
legislation which would have brought class
discrimination by quasi-public facilities
within the prohibition of the Fourteenth
Amendment.11 Since that time it has been
fundamental that only state action is
proscribed by the Fourteenth Amendment. 12
What constitutes state action is a
sensitive and constantly litigated problem
facing the courts today. The legislative, 13
executive 14 and judicial,' 5 as well as
political subdivisions'( of the state are all
included within this prohibition. As Shelley
v. Kraemer made clear, racially restrictive
covenants cannot be specifically enforced
because judicial determination is state
action. 17 Similarly, police ejection of a Negro
from a private amusement park, although
he had purchased a ticket to the pool
facilities, was unconstitutional state action.' s
OAlpaugh v. Wolverton, supra note 8.
10 U.S. CONST. amend. XIV. •
"Civil Rights Cases, 109 U.S. 3 (1883). For a
discussion of this case, see Peters, Civil Rights
and State Non-Action, 34 NOTRE DAME LAW. 303,
12 Shelley v. Kraemer, 334 U.S. 1 (1948).
13 Strauder v. West Virginia, 100 U.S. 303 (1879).
14 Board of Educ. v. Barnette, 319 U.S. 624
15 Shelley v. Kraemer, supra note 12.
16 Yick Wo v. Hopkins, 118 U.S. 356 (1886).
17 Shelley v. Kraemer, 334 U.S. 1 (1948).
18 Valle v. Stengel, 176 F.2d 697 (3d Cir. 1949).
Further, where public property was leased
to private interests any discrimination on
the part of the lessee wfs held to be state
action19 and violative of the Fourteenth
The standard set in Ex parte Virginia21
forms the basis for what today distinguishes
state action from mere private wrong:
Whoever, by virtue of public position under
a state government,... denies or takes away
the equal protection of the laws, violates the
constitutional inhibition; and as he acts in
the name and for the states, and is clothed
with the State's power, his act is that of the
This standard has, by virtue of gradual
judicial expansion, been held to apply to
areas which in a period less sensitive to
civil rights might well have been
considered private domain. It encompasses
private agreements "in which the purposes of
the agreements were secured only by
judicial enforcement by state courts of the
restrictive terms .... "23 It even includes the
operation of a company-owned town
exercising many administrative functions
normally performed by the state. 24
But, as held in the Civil Rights Cases,
"the wrongful act of an individual,
unsupported by any . . authority, is simply a
private wrong.... -25 Thus, where a court
19 City of Greensboro v. Simkins, 246 F.2d 425
(4th Cir. 1957); Department of Conservation &
Development v. Tate, 231 F.2d 615 (4th Cir.
1956) (per curiam); Jones v. Marva Theatres,
Inc., 180 F. Supp. 49 (D. Md. 1960).
20 Culver v. City of Warren, 84 Ohio App. 373,
83 N.E.2d 82 (1948). See also Lawrence v.
Hancock, 76 F. Supp. 1004 (S.D. W.Va. 1948).
21 Ex parte Virginia, 100 U.S. 339 (1879).
22 Id. at 347.
23 Shelley v. Kraemer, 334 U.S. 1, 13-14 (1948).
24 Marsh v. Alabama, 326 U.S. 501 (1946).
25 109 U.S. 3, 17 (1883).
is not required to take "affirmative action"
and maintains "neutrality" - where the
discriminatory action is not sought to be
enforced but merely not prevented - no
breach of the Fourteenth Amendment has
occurred. 26 When the Supreme Court ruled
that the state-appointed trustees of Girard
College, a school established by will for
"poor male white orphans," could not
refuse admission to Negroes, 27 private
trustees were appointed. This substitution of
trustees who were not officers of the state
and so were capable of administering the
estate according to the directions of the
testator did not impinge on any civil rights
of Negro children.28 Apparently, the
approach is negative: courts cannot
participate in discrimination but they are not
bound to prevent it.
The decision in Slack v. Atlantic White
Tower System, Inc.,29 far from being either
regressive or startingly fresh, correctly
interprets the law today for those states
lacking anti-discrimination and anti-bias laws.30
So long as no state interferes with the
privileges or immunities of United States
citizens no federal remedy is available. The
Supreme Court in Shelley v. Kraemer
re26 See Rice v. Sioux City Memorial Park
Cemetery, 245 Iowa 147, 60 N.W.2d 110 (1953), afl'd
by an equally divided Court,348 U.S. 880 (1954)
(per curiam), in which the defendant successfully
defended an action for damages arising out of a
refusal to bury the plaintiff's husband because of
a restrictive covenant.
27 Pennsylvania v. Board of Trusts, 353 U.S. 230
28 In re Girard College Trusteeship, 391 Pa. 434,
138 A.2d 844, cert. denied, 357 U.S. 570 (1958).
29 181 F. Supp. 124 (D. Md. 1960).
30 For a comparison of the various
anti-discrimination measures and their enforcement, see
AMERICAN JEWISH CONGRESS, CHECK LIST OF
STATE ANTI-DISCRIMINATION & ANTI-BIAS LAWS
(rev. ed. 1953).
established the standard that:
The action inhibited by the ...Fourteenth
Amendment is only such action as may
fairly be said to be that of the States. That
Amendment erects no shield against merely
private conduct, however discriminatory or
To avoid this limitation, petitioner Slack
contended that the issuance of a license
to an out-of-state corporation to do
business within the state "invested the
corporation with a public interest" and its action
in excluding him on a racial basis was
equivalent to state action.
This argument was rejected in Williams
v. Howard Johnson's Restaurant32 because
there was no specific state statute dealing
with discriminatory practices in
restaurants. 3a The licensing of restaurants to
serve the public does not burden the state
with the positive duty of prohibiting unjust
discrimination in the use and enjoyment
of those facilities. A license is only a
permission to exercise a pre-existent right or
privilege which has been subjected to
regulation for the public welfare. Licensing
of a privately owned enterprise by the
state does not establish a relationship
making discrimination by the licensee forbidden
state action. 34 To argue otherwise would
make "every licensee . . . 'an administrative
agency of the state' in the conduct of his
everyday business simply because he pays
a tax or fee for his license." 35
The petitioner introduced the additional
31 334 U.S. 1, 13 (1948).
32 268 F.2d 845 (3d Cir. 1959).
33 Id. at 847.
34 Madden v. Queens County Jockey Club, 296
N.Y. 249, 255, 72 N.E.2d 697, 699 (1947); State
v. Clybum, 247 N.C. 455, 101 S.E.2d 295 (1958).
35 Madden v. Queens County Jockey Club, supra
note 34, at 254, 72 N.E.2d at 698-99.
element of a possible burden on interstate
commerce since she was traveling
interstate. Substantial economic effects were
alleged in so far as the roadside restaurant
was a facility of interstate commerce. In
support of this contention the petitioner
pointed to cases involving interstate carriers
as analogous. Williams v. Howard
Johnson's Restaurant36 distinguished this very
point by pointing out the distinction
between directly engaging in interstate
commerce and accommodating it:
[W]e do not find that a restaurant is engaged
in interstate commerce merely because in
the course of its business of furnishing
accommodations to the general public it serves
spteartseo.3n7s who are travelling from state to
It also indicated that a restaurant is only
an instrument of local commerce. 38
Yet, the particular restaurant here
involved is specifically designed to cater to
transients and is located on a U.S.
highway. 39 Far less has been required to
successfully invoke the commerce clause. 40
Furthermore, interstate travel has been
held to be interstate commerce within the
meaning of the clause. 41
The right of freedom of association is
presented whenever talk of
anti-discrimination measures arises as "a law
compelling people to integrate who do not desire
36 268 F. 2d 845 (3d Cir. 1959).
37 id. at 848.
39 Slack v. Atlantic White Tower System, Inc., 181
F. Supp. 124, 126 n. 1 (D. Md. 1960).
40 See, e.g., Wickard v. Filburn, 317 U.S. 111
(1942), where a farmer's consumption of his own
wheat was held to affect interstate commerce.
41 Gibbons v. Ogden, 9 Wheat. (22 U.S.) 1, 189
to do so." 42 The grim picture is presented
of pervasive legislation by which the state
would regulate even purely social areas
including private clubs.4 3 That which is
legislated to protect and enhance the status
of the minority succeeds in destroying the
majority's right of voluntary association.
Plainly put, the position is that:
...compulsory integration is a program by
which some people presume to dictate to
others in which type of environment they
shall live. In so doing, they arrogate to
themselves the right of choice of others which
constitutes a fundamental human right
inseparable from44the dignity of each person as
This insistence on the right of persons
to be selective acts as a brake against a
headlong rush into remedial legislation.
The argument has merit when applied to
a person as an individual; it has
considerably less validity when applied to a person
as a member of a class. Certainly, the
right of free and voluntary association
ought to include the right of the minority
to associate with the majority; it must
include the right to free access to and use of
public and quasi-public facilities.
In order for a Catholic to obtain a
dispensation to marry a non-Catholic, an
antenuptial agreement must be entered into
by both parties. This agreement contains,
among other things, a proviso that any
children of the marriage will be brought up
42 Avins, Anti-Discrimination Legislation as an.
Infringement on Freedom of Choice, 6 N.Y.L.F.
13, 36 (1960).
43 Legislation, Recent New York City Ordinance
Bans Discrimination in Certain Private Housing
Facilities, 56 MicH. L. REv. 1223, 1225 (1958).
44 Avins, supra note 42, at 37.
In Doe v. Roe,2 a separation action in
which the plaintiff husband succeeded on
grounds of cruel and inhuman treatment,
the New York Supreme Court stated that,
when a non-Catholic wife enters into an
antenuptial agreement3 with her Catholic
husband, such an agreement is both valid
and enforceable. The Court awarded
custody of the children to the father, despite
their young ages, thus permitting their
continued upbringing in the Catholic faith. In
so holding, the Court noted that the
mother's position in refusing to bring up the
children as Catholics was uncompromising.
In nineteenth century England, the
courts refused to consider antenuptial
agreements in awarding custody of
children, and applied the principle that the
father's word determined the children's
1 See BOUSCAREN & ELLIS, CANON LAW, TEXT &
COMMENTARY, C. 1061 (1957).
"§I The Church does not dispense from the
impediment of mixed religion unless: (1) There are
just and grave reasons therefore; (2) The
nonCatholic party shall have given a guarantee to
remove all danger of perversion from the Catholic
party, and both parties shall have given guarantees
to baptize and educate all the children in the
Catholic faith alone; (3) There exists moral
certainty that the guarantees will be fulfilled.
"§2 The guarantees are as a rule to be required in
2 143 N.Y.L.J. 14, col. 4 (Sup. Ct. June 14, 1960).
3 Unless otherwise specified, whenever the term
antenuptial agreement is used in this text, it will
refer to the promises between husband and wife
concerning the religious upbringing of the
4 In re Agar-Ellis, 24 Ch. D. 317 (1883). "But
this Court holds this principle - that when, by
birth, a child is subject to a father, it is for the
general interest of ... children, and really for the
interest of the particular infant, that the Court
should not, except in very extreme cases, interfere
with the discretion of the father, but leave to him
In the United States, the rule became
established that the most important element
to be considered in awarding custody of the
children is the welfare of each child. 5
However, at an early date, some controversy
arose among authorities in this country
concerning the enforceability and weight to be
given the antenuptial agreement in deter-.
mining what is best for the child's welfare.6
Some courts avoided the question by
adhering to the English rule that the father,
as the head of household, should be
preferred over the mother in awarding
custody. 7 Other courts have indicated that
thewishes of both parents as to religious
education would be given some weight," while
still others have stated that a court is
prohibited from making any religious
Today, generally, the mother has been
the ... power which nature has given him by the
birth of the child." Id. at 334. See In re Flynn,
87 N.J. Eq. 413, -, 100 Atl. 861, 863-64 (1917).
See also Friedman, The ParentalRight to Control
the Religious Education of a Child, 29 HARv. L.
REV. 485, 488-91 (1916).
5 See, e.g., Hernandez v. Thomas, 50 Fla. 522,
39 So. 641, 645 (1905); Purinton v. Jamrock, 195
Mass. 187, 80 N.E. 802 (1907); Jones v.
Bowman, 13 Wyo. 79, 77 Pac. 439 (1904).
6 See generally, Friedman, supra note 4, at 498.
7 Hernandez v. Thomas, supra note 5, at -, 39
So. at 645.
8 See Purinton v. Jamrock, supra note 5, at -,
80 N. E. at 805. "The wishes of the parent as to
the religious education and surroundings of the
child are entitled to weight; if there is nothing to
put in the balance, against them, ordinarily they
will be decisive." Ibid. See also In re Butcher's
Estate, 206 Pa. 479, 109 At. 683 (1920).
9 Jones v. Bowman, supra note 5, at -, 77 Pac.
at 440. "[A]s the statutes of this state not only fail
to make any distinction as to religious belief, but
absolutely prohibit any distinction being made on
... account thereof, we cannot and will not give
such evidence the slightest weight in our
decision .. " Ibid. See Brewer v. Cary, 148 Mo. App.
193, -, 127 S.W. 685, 691-92 (1910).
given equal rights by statute regarding
custody and upbringing of the children. 10 Many
courts, therefore, including those of New
York, can no longer refuse to enforce
antenuptial agreements on the grounds that the
father determines the child's religion.
Some courts have adopted the position
that antenuptial agreements are
unenforceable because they violate the non-Catholic
party's constitutional rights." One court
reasoned that the upholding of these
agreements would constitute a judicial
determination that one religion is better than
another, and, in addition, would force a
non-Catholic to support a religion against
his will. 12
A majority of courts have taken the
stand that under no circumstances should
the importance of these agreements
supersede the consideration of what is best for
the child's welfare. 13 In Stanton v.
Stan10 Pfeffer, Religion in the Upbringingof Children,
35 B.U.L. REv. 333, 356 (1955). See, e.g., N.Y.
DoM. REL. LAW §81, which provides: "A married
woman is a joint guardian of her children with her
husband, with equal powers, rights and duties in
regard to them." See also N. J. STAT. ANN. §9-2-4
11 See OHIO CONST. art. 1, §7: "No person shall be
compelled to attend, erect, or support any place of
worship against his consent .. " In Hackett v.
Hackett, 146 N.E.2d 477 (Ohio C.P. 1957), affl'd
150 N.E.2d 477 (Ohio Ct. App.), appeal
dismissed, 168 Ohio St. 373, 154 N.E.2d 820
(1958), the court held that by sending a child to
a Catholic school the non-Catholic mother was
supporting and maintaining the Catholic faith, and
added: "to compel her now ... to keep her
promise ... would appear to be compelling her to
support and maintain a certain 'form of worship
against her consent.'" Id. at 479. See McLaughlin
v. McLaughlin, 20 Conn. Supp. 274, 132 A.2d 420
12 Hackett v. Hackett, supra note 11, at 479.
13 See, e.g., Dumais v. Dumais, 152 Me. 24, 122
A.2d 322 (1956); In re Butcher's Estate, 266 Pa.
479, 109 Atl. 683 (1920); Pfeffer, supra note 10,
ton,14 where a Catholic party sought to gain
custody of the children or, in the
alternative, an order directing the non-Catholic
party to adhere to the terms of the
agreement, the court said:
[I]n awarding custody of minor children,
the primary and controlling question is their
welfare.... Parents cannot by contract
control the discretion and duty of the court in
determining the question of custody, and
the court may disregard the contract and
award the children to either parent or to a
third party if the best interest of the
children requires it. 1 5
Thus far, New York has taken the view
that antenuptial agreements are valid and
Weinberger v. Van Hessen'6
was an action brought by a mother for
specific performance of a contract, in which
the mother granted custody of her child to
a third party in return for the third party's
promise to support the child and direct his
moral and religious education. The Court
of Appeals, specifically directing its
remarks to the religious phase of the
contract, stated: "No question of public policy
arises out of this phase of the contract.
Agreements between parents for a
particular sort of religious upbringing have in
general been held valid in this country."1 7
In two New York lower court cases
enforcing antenuptial agreements between
14 213 Ga. 545, 100 S.E.2d 289 (1957).
15 Id. at __, 100 S.E.2d at 293.
16 260 N.Y. 294, 183 N.E. 420 (1932).
17 Id. at 298, 183 N.E. at 431. Contra, Hackett v.
Hackett, 146 N.E.2d 477 (Ohio C.P. 1957),
afl'd, 150 N.E.2d 431 (Ohio Ct. App.), appeal
dismissed, 168 Ohio St. 373, 154 N.E.2d 820 (1958).
Compare Martin v. Martin, 283 App. Div. 721,
127 N.Y.S.2d 851 (2d Dep't), afl'd, 308 N.Y. 136,
123 N.E.2d 913 (1954) (court refused
enforcement of antenuptial agreement, holding that a
child of twelve may decide on a religion himself).
husband and wife, it was said that since the
Catholic party had irrevocably changed his
position in reliance upon such an
agreement, the consideration was sufficient to
make the agreement valid and
enforceable.1 s The courts also relied on the great
value Catholics place on the religious
training and education of their children, as well
as the fact that the children had already
been baptized as Catholics. 9
In the present decision, the Court
followed the precedents of the lower New
York courts by reiterating the doctrine that
antenuptial contracts are enforceable.
Ordinarily, because of the youth of the children,
the mother is-given custody, and in order to
enforce the contract, she is also instructed
to raise the children as Catholics.2 0 In the
present case, however, in view of the
mother's unqualified refusal to raise the children
as Catholics, the Court, in giving the
agreement effect, awarded custody to the father.
This decision, therefore, reaffirms the
New York minority position 2' that this
type of antenuptial agreement is valid and
enforceable. It seems unlikely, however,
that a New York court will ever award
custody of a child to an unworthy Catholic
parent solely on the basis of such an
18 Shearer v. Shearer, 73 N.Y.S.2d 337 (Sup. Ct.
1947); Ramon v. Ramon, 34 N.Y.S.2d 100 (Dom.
Rel. Ct. 1942).
19 Shearer v. Shearer, supra note 18, at 358;
Ramon v. Ramon, supra note 18, at 112.
20 Ramon v. Ramon, 34 N.Y.S.2d 100 (Dom. Rel.
Ct. 1942). See also Shearer v. Shearer, 73 N.Y.S.2d
337 (Sup.Ct. 1947).
21 McLaughlin. v. McLaughlin, 20 Conn. Supp.
274, 132 A.2d 420 (1957); Brewer v. Cary, 148
Mo. App. 193, 127 S.W. 685 .(1910); Boerger v.
Boerger, 26 N.J. Super. 90, 97 A.2d 419 (1953).
22 "[The religious] prenuptial agreement is
enIt is submitted that the present decision
is sound in giving legal recognition to
arrangements so beneficial to the deepest
welfare of children, the violation of which
would be morally indefensible.
The Law Against Contraception
The concomitant occurrence of the
widely heralded "population explosion"'
and a decision of Connecticut's Supreme
Court of Errors2 upholding that state's
rigid birth control statute3 has again
highlighted the ever present conflict between
advocates and opponents of contraception. 4
The highest court of Connecticut has
recently held that the prohibition against
contraceptives may not be interpreted as an
interference with a doctor's right to
"practice his profession free from unreasonable
restraint." The same Court had previously
denied the right of a doctor to challenge the
statute on behalf of his patients;6 but, in
the instant. case, the physician brought the
action not for his patients, but for himself.7
The Court stated that as it is not
unconstitutional to deprive a patient of the use of
contraceptives, neither is it unconstitutional
to prohibit the prescription of these devices
by a doctor.8 Thus the Connecticut statute
6 Tileston v. Ullman, 129 Conn. 84, 26 A.2d 582
(1942), appeal dismissed, 318 U.S. 44 (1943);
State v. Nelson, 126 Conn. 412, 11 A.2d 856
(1940). In the Nelson case, two physicians were
convicted of counseling married women to use a
spermatocidal drug and contraceptive device to
preserve their "general health." The Court refused
to construe the statute as allowing a doctor's
exception, and cited as a basis for that refusal
numerous unsuccessful legislative attempts to change
the statute. In the Tileston case, a licensed
physician sought a declaratory judgment as to whether
the statute made it unlawful for him to prescribe
the use of contraceptive devices for married
women in cases where pregnancy would endanger
life, and if so, whether the statute was
unconstitutional. The court, pointing out that since the
Nelson decision a medical birth control bill had
failed of enactment in the 1941 General
Assembly, said, "The manifest intention of the
legislature of this state, to date, for all out prohibition
cannot very well be denied." Tileston v. Ullman,
supra at -, 26 A.2d at 585. The Supreme Court
dismissed the appeal on the grounds that the
appellant had no standing to litigate the
constitutional question, that his life was not endangered,
and that he was not empowered to bring the
action for his patients by claiming their deprivation
7 Under CONN. GEN. STAT. §54-196 (1949), "Any
person who assists, abets, counsels, causes, hires
or commands another to commit any offence may
be prosecuted and punished as if he were the
principal offender," the physician would be guilty
as an accessory to the offense prohibited by
s Although the doctor challenged the law as
affecting himself, the Court pointed out that
"essentially, there is no real difference in the nature of
the right. The effect of a regulation of a business
or profession is to curtail the activities of both
the dispenser and the user of goods or services."
Buxton v. Ullman, supra note 2, at -, 156 A.2d
remains a complete restriction on the use of
Since the passage of the federal
Comstock Act in 1873, 9 thirty-four states have
passed laws restricting the sale or
advertisement of contraceptives,' 0 with an
additional four states and the District of
Columbia having statutes restricting articles of
"indecent or immoral use."". While the
constitutionality of these statutes has been
repeatedly upheld under the general police
power,12 their value and status have been
weakened by judicial decision and lack of
This diminishing rigidity of the statutes
is apparent from an examination of judicial
interpretation. In the federal courts a
physician's exception has been injected into the
statutes, 13 and concurrently, the law has
been read as requiring proof of an unlawful
ANN. §22-2001 (1951). For an indication that
articles of indecent and immoral use include
contraceptives, see Lanteen Labs., Inc. v. Clark, 294
Ill. App. 81, 13 N.E.2d 678 (1938).
12 State v. Nelson, 126 Conn. 412, 11 A.2d 856
(1940); Commonwealth v. Gardner, 300 Mass.
372, 15 N.E.2d 222 (1938); Commonwealth v.
Allison, 227 Mass. 57, 116 N.E. 265 (1917);
People v. Sanger, 222 N.Y. 192, 118 N.E. 637 (1918);
People v. Byrne, 99 Misc. 1, 163 N.Y. Supp. 682
(Sup. Ct. 1917). But see Note, The
Constitutionality of Anti-Birth Control Legislation, 7 Wyo.
L.J. 138 (1953), which implies that only the
statutes allowing physician's exceptions are valid and
questions the constitutionality of the
Massachusetts and Connecticut laws, which do not permit
such an exception. See also State v. Kinney Bldg.
Drug Stores, Inc., 56 N.J. Super. 37, 151 A.2d 430
(Essex County Ct. 1959).
13 In United States v. One Package, 86 F.2d 737
(2d Cir. 1936), the defendant, a physician, had
received in the mails a package of vaginal
pessaries from Japan. The majority of the court held
that physicians who use such articles for the health
of their patients are excepted by implication from
the literal terms of the statute. "It seems
unreasonable to suppose that the national scheme of
legislation involves such inconsistencies and
requires the complete suppression of articles, the
use of which in many cases is advocated by such
a weight of authority in the medical world." Id.
at 740. See also Consumers Union of United States
v. Walker, 145 F.2d 33 (D.C. Cir. 1944). But see
United States v. One Package, supra at 740, where
Justice Learned Hand, although concurring in the
majority opinion, made the following observation:
"There seems . . . substantial reason for saying
that contraceptives were meant to be forbidden,
whether or not prescribed by physicians, and that
no lawful use of them was contemplated."
intent.14 In New York the statutory
physician's exception 15 has been extended to
druggists and vendors acting upon the
physician's prescription,' 6 even though
contraceptives remain contrary to the public
policy of the state. 1 7 New Jersey, in the
case of State v. Tracy, denied the necessity
of a mens rea for a conviction under the
birth control statute,' 8 but later
distinguished that case and allowed proof of a
lawful intent, i.e., the use of prophylactics
to prevent disease, as a sufficient defense. 19
Recently, a lower court of New Jersey held
that the statute's "without just cause"
phrase rendered the law "vague, indefinite
and incapable of construction," and,
therefore, unconstitutional. 20
Even the Massa
14 Davis v. United States, 62 F.2d 473 (6th Cir.
1933). The defendant, engaged in the business
of handling druggists' rubber sundries, was
charged with the violation of 18 U.S.C. §§334,
396 (1958) (predecessors of 18 U.S.C. §§1461-62).
The trial court had refused to admit into evidence
testimony that the articies had a legitimate and
surgical use in the treatment and prevention of
disease, and that they were to be used for other
than the contraceptive purposes condemned by
the sections involved. The Circuit court,
accepting the broad dictum of Youngs Rubber Corp. v.
C. I. Lee & Co., 45 F.2d 103, 108 (2d Cir. 1930),
admitted the evidence and held that the intent to
use for condemned purposes the articles described
in the circular or shipped in interstate commerce,
was a prerequisite to conviction. If the possibility
of a lawful intent were not recognized, the
physician's exception would be impossible. See note
15 N.Y. PEN. LAW §1145.
16 People v. Sanger, 222 N.Y. 192, 118 N.E.
17 See Barretta v. Barretta, 182 Misc. 852, 46
N.Y.S.2d 261 (Sup. Ct. 1944).
18 29 N.J. Super. 145, 102 A.2d 52 (App. Div.
19 State v. Kohn, 42 N.J. Super. 578, 127 A.2d 451
(Essex County Ct. 1956).
20 State v. Kinney Bldg. Drug Stores, Inc., 56
N.J. Super. 37, 151 A.2d 430 (Essex County Ct.
1959). The reasoning of the court was that a
chusetts law, which, like Connecticut, has
no physician's exception, now requires
proof that an unlawful purpose was
intended as a prerequisite to conviction.2
Similarly, Wisconsin has injected the
requirement of an illegal intent, 22 as has
Ohio. 23 It is readily discernible that this
requirement of proof makes the possibility
of a conviction under the birth control laws
more difficult. The prophylactics involved
generally have dual functions, viz., the
prevention of disease and the prevention of
conception. Since the former purpose is
usually legal,2 4 it becomes doubly difficult
to prove that an illegal intent was present.
Consequently, the chance of conviction is
greatly lessened. 25 Furthermore, the large
number of states having physician's
exceptions which extend to pharmacists 26
indicates a greater leniency in the prohibition
against birth control.
These factors are a strong indication of
"just cause" may mean different things to
different persons. Any married couple might consider
it just to space children, to prevent conception
because of the wife's health, family economic
21 Commonwealth v. Goldberg, 316 Mass. 563,
55 N.E.2d 951 (1944); Commonwealth v.
Corbett, 307 Mass. 7, 29 N.E.2d 151 (1940).
22 See State v. Arnold, 217 Wis. 340, 258 N.W.
23 See City of Toledo v. Kohlhofer, 96 Ohio App.
355, 122 N.E.2d 20 (1954) (interpreting a
municipal ordinance in accordance with state policy).
24 But see KY. REV. STAT. ANN. §§214.190-240
(1955); ME.REV.STAT.ANN.ch. 25, §114 (1954).
25 Notwithstanding this difficulty, convictions
have been obtained. See Commonwealth v.
Goldberg, supra note 21; State v. Arnold, supra note
2 6 E.g., ARK. STAT. §82-944.(1947); COLO. REV.
STAT. ANN. §40-9-17 (1953); DEL. CODE ANN. tit.
16, §2503 (1953); IDAHO CODE ANN. §39-801
(1947); IOWA CODE ANN. §725.10 (1949); N.Y.
PEN. LAW §1145; TEX. PEN. CODE ANN.art. 740
the ever-increasing acceptance of
contraception, not only when it is medically
desirable to prevent conception, but as a
general practice. Throughout the world
contraception is receiving increased social
sanction, notably in England, Sweden and
In spite of the apparent acceptance of,
these contraceptive practices and the
criticisms levied at the laws restricting them,
the statutes remain. The purpose behind
the attempt to restrict birth control is
accordingly rather vague. In this country
protection of public morals is usually the basis
for the passage of the law.28 Indeed, many
statutes are within the obscenity sections of
the codes, 29 and others refer simply to
indecent and immoral articles.30 There are,
nonetheless, specific instances where the
courts have expressed themselves less
generally, e.g., "to remove the fear of
preg27 What Other CountriesDo About Birth Control,
U.S. News & World Report, Dec. 14, 1959, p. 67.
On the continent, however, a concern over the
decrease in the number of births has led to an
effort to lessen contraceptive practices, as
evidenced by laws in France and Italy. Id. at 68.
28 See Tileston v. Ullman, 129 Conn. 84, -, 26
A.2d 582, 587 (1942), appealdismissed, 318 U.S.
44 (1943); Commonwealth v. Gardner, 300 Mass.
372, __, 15 N.E.2d 222, 224 (1938); People v.
Byrne, 99 Misc. 1, 4, 163 N.Y. Supp. 682, 685
(Sup. Ct. 1917).
29 E.g., IND. ANN. STAT. §§10-2803-2806 (1956);
IOWA CODE ANN. §725.5 (1949); MINN. STAT.
ANN. §617.25 (1945); MISS. CODE ANN. §2289
(1942). That birth control statutes were intended
to be only a part of a movement to stop obscenity
and have remained opposed to contraception only
because of a minority bloc, see Note,
JudicialRegulation of Birth Control Under Obscenity Laws,
50 YALE L.J. 682 (1941).
30 D.C. CODE ANN. §22-2001 (1951); ILL. ANN.
STAT. ch. 38, §468 (Smith-Hurd 1935); N.H. REV.
STAT. ANN. §§571:14-15 (1955); N.D. REV. CODE
§12-2109 (1943); OKLA. STAT. ANN. tit. 21, §1032
nancy would unquestionably result in an
increase of immorality." 31 Noble as this
may appear, it is not the natural law
objection to birth control. Massachusetts,
however, came very close to the natural law
viewpoint with this statement:
Their plain purpose is to protect purity, to
preserve chastity, to encourage continence
and self restraint, to defend the sanctity of
the home, and thus to engender in the state
and nation a virile and virtuous race of men
and women. 32
This appears to reflect, at least generally,
a recognition of the inherent evil of
contraception, but it fails to express the evil itself,
i.e., the frustration of the primary end of
the marital act.
If the purpose of the contraception laws
is the preservation of the general morality,
and not.the prevention of the inherent evil
of birth control, allowing a single exception
(the physician's exception) would not seem
to lead to a decline in morality. From the
fact that Connecticut does not allow such
a physician's exception it might be inferred
that the state recognizes the natural law
theory that any interference with the
primary end of the sexual act is wrong. The
aim of the Connecticut law is not easily
Connecticut allows an exception in its
abortion statute when necessary to save
human life. 33 The dissent in Tileston v.
Ullman,34 pointing out that the abortion
laws do allow such exceptions,3 5 said:
31 People v. Byrne, 99 Misc. 1,6, 163 N.Y. Supp.
682, 686 .(Sup.Ct. 1917).
32 Commonwealth v. Allison, 227 Mass 57, -'
116 N.E.265, 266 (1917).
33 CONN. GEN. STAT. §53-30 (1958).
34 129 Conn. 84, 26 A.2d 582 (1942), appeal
dismissed, 318 U.S. 44 (1943).
35 See, e.g.,ARiz. REv. STAT. ANN. §13-212 (1956);
According to the theory of the state, it is
not lawful for a physician to prescribe
articles so as to prevent conception, in the case
of married women whose health will not
permit them to bear children; but it is
lawful in case such women do become
pregnant to perform abortions upon them when
necessary to preserve their lives.3 6
Such inapparent inconsistency may in
reality be reconcilable with the natural law.
According to Aquinas, reason recognizes
the direct frustration of the marital act as
intrinsically evil,3 but may allow so-called
"abortions" in ectopic operations in
extrauterine pregnancies,3 s under the principle
of the double effect.3 9 While not attributing
this intent to the Connecticut law, which
permits a broader exception, 40 its reasoning
remains at least generally consistent with
the natural law. The Court itself, however,
attributes its refusal to allow a doctor's
exception to the birth control section to
repeated unsuccessful attempts in the
legisIDAHO CODE ANN. §18-601 (1947); MASS.'GEN.
LAWS ANN. ch. 272, §19 (1956); MINN. STAT.
ANN. §617.18 (1945); TENN. CODE ANN. §39-301
36 Tileston v. Ullman, supra note 34, at -, 26
A.2d at 590-91 (dissenting opinion).
37 See AQUINAS, SUMMA THEOLOGICA, 11-I, q. 154,
38 KELLY, MEDICO-MORAL PROBLEMS 105-14
39 See FAGOTHEY, RiwrrH & REASON 85-87 (1952).
The so-called "double effect" refers to the
morality of acts having two effects, one good, one evil.
The controlling principles, under which such an
act may be performed are: 1) The act must be
morally good or at least morally indifferent; 2)
The good effect must not be obtained by means
of the evil effect; 3) The evil effect must not be
intended for itself, only permitted; 4) There must
be a proportionately grave reason for permitting
the evil effect.
40 The statutory exception extends to all cases
where the mother's life is threatened. The
abortion performed legally need not conform to the
double effect principles.
lature to change the statute. 41 And a
statement in State v. Nelson that the law
prevents illegitimate pregnancies 42 evidences
at least one of the given aims of the statute.
Above and beyond the criticism leveled
at the absence of a physician's exception is
the criticism of the birth control statutes in
general. One objection that is often urged
as a reason for repeal is the ineffectiveness
of the laws to prevent contraception. 43 It is
said that apart from the availability of legal
methods of birth control,44 "there is little
benefit and perhaps some harm in keeping
a statute on the books that is no longer
being obeyed." 4 5 Nonetheless, the fact that
these laws may be dead letter statutes is no
reason to abolish them. It is well settled
that mere non-use will not serve to repeal
a statute or to render it unenforceable. 46
The laws, as they remain, reflect the state's
41 Buxton v. Ullman, 147 Conn. 48, -,
A.2d 508, 513 (1959); Tileston v. Ullman, supra
note 34, at -, 26 A.2d at 565.
42 126 Conn. 451, -, 11 A.2d 856, 861 (1940).
43 "[AJny antiseptic is capable of use as a
contraceptive, including vinegar, sour milk, bichloride
of mercury, as well as such proprietory
antiseptics as Lysol, Listerine and Pepsodent." State v.
Arnold, 217 Wis. 340, -, 258 N.W. 843, 844
(1938). A Fortune magazine survey estimated
that approximately $200,000,000 is spent
annually by American women on contraceptives,
many of them sold under the disguise of
"feminine hygiene." See Birth Control, 3
ENCYCLOPEDIA BRITANNICA 647,-650 (1951). But see IDAHO
CODE ANN. §39-809 (Supp. 1959): "Suppositories,
cones, tablets and simple cleansing powders not
classified as contraceptives or prophylactics by the
Idaho department of public health or state board
of pharmacy... may... be advertised but
insinuation in copy . .. must not convey impression that
such [products have] contraceptive virtue."
44 The legality of prophylactics which prevent
disease has already been noted.
4 5 See 23 B.U.L. REV. 115 (1943), where the
Tileston case is criticized.
46 See District of Columbia v. John R.
Thompson Co., 346 U.S. 100, 117 (1953).
concern with morality and evidence at least
a public policy objection to contraception.
Another objection arises when the
of contraception is
noted as being in conflict with the statutory
prohibition.47 While factually there may be
truth to this objection, the duty of the state
to legislate is bound not only by the mores,
but by the morality involved. The first
requirement of a just law is that it not be in
conflict with a higher law. 48 The natural
law prescribes a divine prohibition against
contraception, and obviously a statute
commanding birth control practices would be
without moral force.
Closely allied to the foregoing objection
is the thought that the Church as a
"minority bloc" is responsible for the failure of
the legislature to repeal these laws.49 That
Catholics have played a role in retaining
these laws may well be true, but:
every person has . . . the civic right to
advance his own cause, to advocate and
attempt to persuade others to his point of
view. One may advocate pacifism,
prohibition, polygamy or planned parenthood. If
one is successful, if there is a reasonable
consensus, the laws and even the
conven47 See Note, 50 YALE L.J. 682 (1941). The
anomaly is further evidenced by the fact that one of
the seven states disseminating birth control
information in its public health programs, Mississippi,
has statutory prohibition restricting the sale or
advertisement of contraceptives. Miss. CODE ANN.
§2289 (1942). See Birth Control, BRITANNICA
BOOK OF THE YEAR 165, 166 (1955).
48 See AQUINAS, SUMMA THEOLOGICA, I-II, q. 90,
art. 4; Cahill, Natural Law Jurisprudence in
Legal Practice, 4 CATHOLIC LAWYER 23, 30-34
49 A commentary on the Buxton decision
attributed the birth control ban in Connecticut to the
stout support of the state's Catholic clergy. It
pointed out that the Catholic vote, 47%, is a
powerful voting bloc. Unreasonable Restraint,
Time, Jan. 4, 1960, p. 18.
tions of the country will reflect this. 50
If the Church is the sole restraining hand on
the legislative bodies, it is up to the
"majority" to exert its force and repeal the laws,
if it wishes to do so. As it stands, the
criticism against the Church is not only unfair,
The position of the Church
control is clear. "[I]t is absolutely and
always wrong. There can be no question
of a justifying reason, nor of a 'permission'
for even one act of contraception." '5 1 Pope
Pius XI in the encyclical Casti Connubii
stated that "no reason, however grave, may
be put forward by which anything
intrinsically against nature may become
conformable to nature and morally good."'52
Accordingly, only those laws such as
Connecticut's, which admit of no exceptions,
are in strict conformity with the natural
The prohibition is absolute; it is binding
on all men. That there are those who do not
recognize it as such is undeniable. 54 The
50 Birth Control in Politics, 71 COMMONWEAL
335, 336 (1959).
51 KELLY, MEDICO-MORAL PROBLEMS 154 (1958).
"The only possible excuse is a subjective one, such
as, for example, ignorance of this divine
52 Pius XI, Christian Marriage para. 54 (1930),
FivE GREAT ENCYCLICALS 95 (1939).
53 The absence of a physician's exception is the
sine qua non of the conformity of the
Connecticut law. "A doctor may under no circumstances
recommend artificial birth control nor even hint
at its necessity or advisability. To do so would
be to encourage others to perform an intrinsically
evil act. Moreover, he is not allowed to give
patients information as to the best methods of
artificial birth prevention, nor to purchase for them
nor to insert such contraceptive devices." HEALY,
MORAL GUIDANCE 306 (1952).
54 The possibility of varying degrees of
knowledee of the natural law is recognized by St.
Thomas. AQUINAS, SUMMA THEOLOGICA, I-11, q.
94, art. 4.
moral status of a civil law that conforms
to the natural law is clear. 55 The legal status
of such a law, although equally established,
may not be as clear. Certainly, the right
of the state to legislate gives rise to the
duty of citizens to obey its mandates.
The appeal of Buxton v. Ullman is now
pending before the Supreme Court 56 on the
question of the constitutionality of the
Connecticut statute. The law is indeed in
conformity with the natural law,57 yet we must
await the Court's determination as to its
constitutionality. If it is upheld, the citizens
have the legal power to change the law if
their dissatisfaction is great. But as it
stands, the statute mirrors the divine
prohibition against contraception.
Developments Since "The School Bus Challenge"
55 The requirements of a just law, according to
Aquinas, are that it be (1) not in conflict with
a higher law, (2) an enactment for the common
good, (3) made by a competent authority, (4)
promulga--ed. Id. a-t-q. 90, art. 4.
56 362 U.S. 987 (1960).
57 Even the solution suggested by the Court in
the Buxton case for those who find it necessary to
prevent pregnancy is in line with the reasoning of
the natural law, i.e., total abstinence from sexual
intercourse. See Buxton v. Ullman, 147 Conn. 48,
-' 156 A.2d 508, 514 (1959).
' Reed, The School Bus Challenge,-5 CATHOLIC
LAWYER 99 (Spring 1959).
transportation is desired. The author, Mr.
George E. Reed, commented on litigation
then in progress in three states which he
felt significant in this area. These cases
have now been, decided.
In Connecticut, the Supreme Court of
Errors ruled that a statute enabling
communities to provide public transportation
of pupils to parochial schools was not
violative of the state constitutional provisions
prohibiting compulsory support of a church
and guaranteeing religious freedom.
However, the statute was ruled to be
unconstitutional in that public funds, appropriated
solely for public school use, were expended
for transportation to private schools. 2 In
a second case, the New York Supreme
Court ruled that the expenditure of public
funds for transportation of nonpublic
school children was not violative of either
- the Federal Constitution or, by reason of a
1938 amendment, the state constitution. 3
Finally, the Supreme Judicial Court of
Maine held that the city council of Augusta
had no authority under its police power
to enact an ordinance providing
transportation for pupils attending private schools. 4
The United States Supreme Court
upheld the first5 school bus case to reach it. 6
The Court held that a New Jersey statute
providing transportation for children
attending nonprofit private schools did not
violate either the First or the Fourteenth
Amendments of the Federal Constitution.
2 Snyder v. Town of Newton, - Conn. __, 161
A.2d 770 (1960).
' Board of Educ. v. Allen, 17 Misc. 2d 1080,
192 N.Y.S.2d 186 (Sup. Ct. 1959).
4 Squires v. City of Augusta, 155 Me. 151, 153
A.2d 80 (1959).
5 Bolmeier, Legal Issues in Pupil Transportation,
20 LAW & CONTEMP. PROB. 45, 52 (1955).
6 Everson v. Board of Educ., 330 U.S. 1 (1947).
In his article Mr. Reed observed: "It [the
decision] squarely holds that legislation
designed to transport children to and from
parochial schools does not involve a
violation of the policy of separation of Church
and State."' r , The Court maintained that
since a state cannot exclude citizens from
receiving the benefits of public welfare
legislation because of their religion, a state
has the right, but not the duty, to provide
transportation for nonpublic school
children.8 In supporting the New Jersey statute,
the Court reaffirmed the child benefit theory
so often advanced by the proponents of
transportation of pupils to nonpublic
Mr. Reed states that although the
separation of church and state argument cannot
be successfully raised in a federal test of
public transportation to parochial schools,
proponents of such plans must still satisfy
state statutory and constitutional
requirements. Normally, enabling legislation must
be enacted to empower local school boards
to provide transportation to private schools.
Furthermore, since many states limit the
expenditure of school funds to public
schools, special appropriations may have to
be made to avoid unauthorized use of the
public school funds. 10
In relating the history of bus
transportation to private schools, Mr. Reed
contrasts the situations as they developed in
Missouri and Kentucky." Both states
enacted legislation empowering school
districts to provide transportation to
7 Reed, supra note 1, at 101.
8 Everson v. Board of Educ., supra note 6, at 16.
9Everson v. Board of Educ., supra note 6, at 18.
10 Reed, The School Bus Challenge, 5 CATHOLIC
LAWYER 99, 102 (Spring 1959).
public schools. Both states had school
funds which were constitutionally restricted
to public school use. The Missouri
enabling act was declared unconstitutional since
the necessary moneys were appropriated
from the school fund. The Kentucky
statute, on the other hand, was upheld
since the necessary appropriation was
derived from general funds rather than the
restricted school fund. Mr. Reed concludes:
"In summary, . . . legislation must be
sought. It must be framed with the state
constitution in mind and with full
knowledge that it will be subjected ultimately
to a judicial test."'12
A Connecticut enabling act'3 was
recently tested in Snyder v. Town of
Newtown.' 4 In that case, plaintiffs challenged
the state and federal constitutionality of a
statute empowering a municipality, with
elector approval, to provide transportation
for pupils attending a nonprofit private
school. The Town of Newtown, after
approval by the electorate, furnished
transportation for pupils attending a Roman
Catholic elementary school. The Court,
citing Everson v. Board of Educ.,1
disposed of all of plaintiffs' claims under the
Federal Constitution except for a claim of
equal protection of the laws. The Court
refused to consider this claim since the
12 Id. at 105.
13 CONN. GEN. STAT. REV. § 10-281 (1958). The
provision reads in part, "Any town ... may
provide, for its children attending private schools
therein, not conducted for profit, . . . any
transportation services provided for its children
attending public schools .... The chief executive
autho-ity of any such municipality shall, upon
petition, . . . submit the question . . . to a vote of
the electors ......
'4 Conn. -, 161 A.2d 770 (1960).
15 330 U.S. 1 (1947).
plaintiffs were not members of a class
which was allegedly denied such protection.
The next contention advanced was that
the statute violated the state constitution
in that it authorized the expenditure of
public funds for a private purpose. The
Court rejected this claim. 16 Plaintiffs' main
argument centered around a state
constitutional article which states in part: "[N]o
person shall by law be compelled to join
or support. . . any congregation, church or
religious association."'1 7 Plaintiffs
contended that the use of tax-derived public
funds to provide transportation to a school
maintained by a church constituted public
support of that church. The Court held
that the statute aided the parents and the
children, preserved the public health, safety
and welfare and fostered education. The
statute came up to, but did not breach,
the wall of separation between church and
state.' 8 Plaintiffs' final argument was that
the funds used to implement the statute
were restricted by the state constitution
to public school use. 19 On this point, the
16 Snyder v. Town of Newtown, supra note 14,
at __ 161 A.2d at 774. The Court found that since
the equal protection and due process clauses of
the Federal Constitution and the Connecticut
constitution had substantially the same meaning, the
words of the United States Supreme Court were
appropriate on this matter. "It is much too late
to argue that legislation intended to facilitate the
opportunity of children to get a secular education
serves no public purpose." Ibid. See Everson v.
Board of Educ., 330 U.S. 1, 7 (1947).
1 7 CONN. CONST. art. VII, § 1.
18 Snyder v. Town of Newton, supra note 14,
at __, 161 A.2d at 775-79. The Court reviewed
the history of the church-state relationship in
Connecticut and reached its conclusion while
relying heavily on the reasoning in the Everson
19 CONN. CONsT. art. VIII, § 2. This section of the
constitution established a school fund, ". . . the
interest of which shall be inviolably appropriated
Court agreed and ruled that the statute in
question, in so far as it purported to make
available moneys from this school fund,
It is no doubt significant that the
Connecticut Court discussed the federal issues,
the "private purpose" issue and the
"support of religion" issue and found that the
statute was not objectionable on these
grounds before it ruled the statute
unconstitutional on the ground of the improper
use of public school funds. The Court
could have declared the statute
unconstitutional without discussing these other
factors. It would appear, therefore, that if
legislation were enacted specifically
appropriating funds from sources not limited
to public school use, the Connecticut Court
would find the statute constitutional.2 0
In Board of Educ. v. Allen,21 the
Commissioner of Education of the State of
New York ordered a school district, as
provided by statute, to expend public funds
to provide transportation of pupils to
parochial schools. 22 The Board of Education,
to the support and encouragement of the public,
or common schools .. "
20 Cf. Squires v. City of Augusta, 155 Me. 151,
-, 153 A.2d 80, 87 (1959). The Maine Court,
while declaring certain practices involving
transportation to private schools unlawful in the
absence of statutory provisions, observed that a
properly worded statute could meet both state
and federal constitutional standards.
21 17 Misc.2d 1080, 192 N.Y.S.2d 186 (Sup. Ct.
22 N.Y. EDUC. LAW §§ 3635, 1807. Section 3635
establishes the criteria of the remoteness of the
child's home from the school or the welfare of
the child as the standard for determining when
transportation should be provided. This section
also permits a parent to appeal an adverse vote
by a school district on such matters to the
Commissioner of Education. Section 1807 empowers
the Commissioner to order the local district to
provide moneys for transportation if in his
judgment the criteria established in § 3635 so require.
in contesting the order, maintained that the
Federal Constitution as well as the state
constitution had been violated.23 The Court
ruled that on the strength of the Everson
decision, there was no violation of the
First and Fourteenth Amendments of the
Federal Constitution. The Court's handling
of the petitioner's claims under the state
constitution requires some historical
background. In 1938, the New York Court of
Appeals, in Judd v. Board of Educ.,24
ruled that the expenditure of public funds
to provide bus transportation to a parochial
school, pursuant to a state statute,
constituted support of a school wholly or
partially under religious control and was,
therefore, unconstitutional. In the election
of that year the voters of the state approved
an amendment to the constitution which
read in part, "[T]he legislature may
provide for the transportation of children to
and from any school or institution of
learning.",25 Despite this amendment, the Board
of Education, in the Allen case, 26 attacked
the orders of the Commissioner of
Education as being violative of the state
constitution. In dismissing the petition, the Court
stated that the Board was placing undue
emphasis on the Judd case27 in view of the
subsequent constitutional amendment. The
Court observed, "[T] he People of the State
of New York have determined that the use
of public funds for transportation to
nonpublic schools is a constitutional
expendi23 Since the Court's opinion is rather brief, the
precise state and federal constitutional questions
are not clearly defined.
94278 N.Y. 200, 15 N.E.2d 576 (1938).
'5 N.Y. CONST. art. XI, § 4. (Emphasis added.)
20 Board. of Educ. v. Allen, 17 Misc.2d 1080,
192 N.Y.S.2d 186 (Sup. Ct. 1959).
27 Judd v. Board of Educ., 278 N.Y. 200, 15 N.E.
2d 576 (1938).
In the third case mentioned in Mr.
Reed's article, the City of Augusta, Maine,
enacted an ordinance to provide
transportation for pupils attending nonpublic
schools. 29 Taxpayers brought suit against
the city contending that neither the Maine
statutes nor the Augusta city charter
conferred this power on the city.30 Plaintiffs
further contended that the ordinance
violated the state and federal constitutions.
All parties agreed that no express terms
in the statutes or the city charter granted
the city the power to adopt such an
ordinance. The city maintained that the
enactment of such an ordinance was an exercise
of its police power. The Court agreed that
the city had the authority to exercise the
police power but that the use of this police
power must be consistent with the public
policy of the state.31 A review of the state
education laws led the Court to the
conclusion that since the expenditure by
municipalities of public funds for education, in all
its phases, had for over one hundred years
28 Board of Educ. v. Allen, supra note 26, at 1082,
192 N.Y.S.2d at 188.
29 An ordinance of the city of Augusta
authorized the mayor to make a one year contract to
provide transportation for Augusta children
attending nonpublic schools. The purpose of the
ordinance was stated to be to conserve the health,
safety and welfare of the children. Money was
appropriated for this project from the city's
contingent fund. See Squires v. City of Augusta, 155
Me. 151, __, 153 A.2d 80, 81-82 (1959).
30 Squires v. City of Augusta, 155 Me. 151, 153
A.2d 80 (1959).
31 id. at -, 153 A.2d at 88-89. A municipality
cannot under its general grant of power from the
state enact ordinances which are repugnant to the
policy of the state. Where the state has clearly
determined the public policy on a subject through
legislation, a municipality cannot act contrary to
or in qualification of that policy. 5 McQUILLIN,
MuNICiPAL CoRPoRATIoNs § 15.21 (3d ed. 1949).
been authorized by the legislature in
specific and definite terms, it was the public
policy of the state that a city ordinance
such as the one under consideration could
be enacted only after clear and
unmistakable authorization by the legislature. Since
the city's exercise of the police power was
inconsistent with the general education
policy of the state, the Court ruled that
the city's expenditure of public funds for
the transportation of children to nonpublic
schools was unlawful.
Although a decision was reached in this
case before considering any of the
constitutional questions, the Court specifically
stated that a properly worded enabling act
authorizing communities to spend funds to
transport children to private schools would
meet both federal and state constitutional
In addition to these three cases referred
to by Mr. Reed, there have been other
developments of interest. Kentucky was cited
by Mr. Reed as being an example of a
state whose courts had upheld the
constitutionality of public transportation to
nonpublic schools because the legislature had
enacted a proper enabling act and had
utilized only a general fund to pay for the
transportation.33 Despite what would
appear to be now simply a routine matter for
school boards, the Kentucky courts are
still required to formulate rules in the bus
transportation area. In 1956 the Court of
Appeals of Kentucky had to decide how
to apportion the bus transportation
expenses between the public school fund and
32 See Squires v. City of Augusta, supra note 30,
at -, 153 A.2d at 87 (dictum).
38 Reed, The School Bus Challenge, 5 CATHOLIC
LAWYER 99, 102-03 (Spring 1959).
the general fund.3 4 The court ruled that
a simple per capita basis should be used
unless peculiar or unusual circumstances
existed. The same court was asked, in
1960, to define "peculiar or unusual
circumstances. '35 The court, although not
answering the request, stated that since
its only concern was to make certain that
no public school money was expended for
the nonpublic buses and that a straight per
capita method came closest to assuring
this goal, it would again direct that the per
capita basis be used.
The New York State Legislature has
amended, effective September 1, 1961, a
section of the Education Law dealing with
bus transportation. 6
The effect of this
amendment is to make it mandatory for
school districts to provide bus
transportation to both public and private schools for
grade school students who reside at
distances of from two to ten miles from
school and for high school students who
reside at distances of from three to ten
miles from school.37
Under the existing
law, if the local school district does not
provide transportation for school children,
an appeal can be taken to the
Commissioner of Education. The Commissioner
34 Rawlings v. Butler, 290 S.W.2d 801 (Ky. 1956).
In addition to the bus issue, the constitutionality
of using public funds to pay the salaries of Roman
Catholic nuns teaching in the public schools and
to lease buildings owned by the Roman Catholic
Church for public school use was questioned. The
court found no violation in these practices.
35 See Board of Educ. v. Jefferson County, 333
S.W.2d 746 (Ky. 1960).
36 N.Y. EDUc.LAW §3635 (Supp. 1960).
37 The operation of the existing bus
transportation law and the probable effects of the
amendment are discussed in a memorandum by the
State Education Department and a message from
the governor upon the signing of the amendment.
McKinney's N.Y. Sess. Laws 1925, 2067 (1960).
will order the school district to provide
transportation for the children to the
schools they legally attend if such
transportation is being provided for some of the
children in the district or if the school
district's refusal to provide the
transportation is unreasonable considering either the
remoteness of the pupil's home or the best
interests of the child.38 In practice the
Commissioner generally ordered
transportation to both public and private schools
to a maximum distance of eight miles.39
The amendment will not only codify what
had become the general policy of the
Commissioner of Education, but also, will
simplify the appeal procedure and extend the
maximum limit of coverage from the
eight miles, to ten
From the above discussion, it is clear
that since the Everson decision,41 a state
38 Ibid. N.Y. EDUC. LAW § 3635.
39 See, e.g., Matter of Patnaude, 74 State Dep't
(N.Y. Educ.) 46 (1953). A school district was
providing transportation for the public school
pupils. The Commissioner ruled that "in
accordance with the established precedent, the pupils
attending parochial schools are entitled to
transportation provided they are attending the nearest
available school of their denomination and such
school is more than two miles from their homes
in the case of elementary pupils or more than
three miles distant in the case of secondary pupils,
except that school districts are not required to
provide transportation where the school is eight
miles or more." (Emphasis added.) The
standards of distance were established by the
Commissioner's rulings not by statute.
Matter of the Towns of Hempstead and North
Hempstead, 73 State Dep't (N.Y. Educ.) 25
(1952). The Commissioner ruled that "where the
distance involved exceeds three miles but is less
than eight, it becomes the duty of the school
meeting to authorize transportation for children
who attend non-public schools."
40 See note 39 supra.
41 Everson v. Board of Educ., 330 U.S. 1 (1947).
court cannot declare a statute providing
for the transportation of pupils to sectarian
schools violative of the Federal
Constitution on the ground that expenditure of
public funds for such a purpose would
constitute the support of a religion. However,
since state courts of last resort are the final
judges of the effect of state constitutional
provisions, an invalidation could arise on
that basis. The Supreme Court of
Washington made such a decision only two years
after the Everson case.42 Parents sought a
writ of mandamus from the Washington
Court ordering a school district to provide
transportation for their children to a
sectarian school. The parents contended that
under a state statute all children, attending
school in accordance with the state's
compulsory attendance laws, were entitled to
use the transportation facilities currently
being provided by the school district. 43
They alleged that since their school
district provided transportation for the public
school children, the statute required that
the district extend the service to the
parochial school students. To answer the
objection that public school funds could be
expended only for public school expenses,
the plaintiffs alleged that funds other than
the public school funds were available. The
plaintiffs also alleged that if
transportation were denied them, their rights under
the First Amendment would be abridged.
The Court disposed of the Federal
Constitutional question on the strength of the
42 Visser v. Nooksack Valley School Dist., 33
Wash.2d 699, 207 P.2d 198 (1949).
43 WASH. REV. CODE § 28.24.060 (1956). "All
children attending school in accordance with the
laws relating to compulsory attendance shall be
entitled to use the transportation facilities
provided by the school district in which they reside."
majority opinion in the Everson case in
which Justice Black stated that a state
could, if it wished, provide transportation
only to public school children. 44 The Court
agreed that the language of the statute did
apply to children attending parochial school
but that the main issue was whether public
funds could be constitutionally expended
for such a purpose. The state constitution
provided that no public funds could be
appropriated for the support of a religious
establishment and that schools maintained
in whole or in part by public funds must be
free from sectarian control. 45
The Court, in discussing whether such
expenditure as was requested would
constitute support of a religion, stated: "[W]e
must . . . respectfully disagree with those
portions of the Everson majority opinion
which might be construed, in the abstract,
as stating that transportation, furnished at
public expense, to children attending
religious schools, is not in support of such
school. . . . [W]e are constrained to hold
that the Washington constitution although
based upon the same precepts [as the First
Amendment], is a clear denial of the rights
herein asserted by appellants. '46 The Court,
contrary to the conclusion reached in the
44 Everson v. Board of Educ., supra note 41, at 16.
45 WASH. CONST. art. I, § 11. This section reads,
in part, "Absolute freedom of conscience in all
matters of religious sentiment, belief, and
worship, shall be guaranteed to every individual....
No public money or property shall be
appropriated for, or applied to any religious worship,
exercise or instruction, or the support of any
religious establishment .. " Ibid.
WASH. CONST. art. IX, § 4. "All schools
maintained or supported wholly or in part by the
public funds shall be forever free from sectarian
control or influence." Ibid.
46 Visser v. Nooksack Valley School Dist., supra
note 42, at -, 207 P.2d at 205.
Everson case, ruled that providing
transportation of pupils to parochial schools
constituted support of that religion and denied
the writ. 47
Although the courts of several states
have declared certain practices involved
in nonpublic school bus transportation
unconstitutional, they have stated in several
instances that the operation itself is
funda47 See Perry v. School Dist., - Wash.2d -, 344
P.2d 1036 (1959). The Washington court igain
was called upon to interpret articles I and IX of
the state constitution. The release-time program
for religious education off the school grounds was
ruled unconstitutional. Teachers and
representatives of religious groups distributed cards and
made explanatory announcements for the purpose
of obtaining parental consent prior to a child's
participation in the program. The court found the
mentally constitutional and can be
operated in a lawful manner. On the other
hand, some courts have been unable to
sustain such practices in light of their
constitutions. In the latter instances, a
constitutional amendment may be the only
answer for those desiring publicly financed
transportation for nonpublic school
practice was a "use of school facilities supported
by public funds for the promotion of a religious
program, which contravenes Art. I, § 11.... This
practice has the further effect of influencing the
pupils, while assembled in the classrooms, as a
,captive audience' to participate in a religious