Church-State Religious Institutions and Values: A Legal Survey 1960-1962
Church-State Religious Institutions and Values: A Legal Sur vey 1960-1962
Joseph P. Albright 0
Philip B. Byrne 0
N. Patrick Crooks 0
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RELIGIOUS INSTITUTIONS AND VALUES: A LEGAL SURVEY
CHURCH-STATE
1960-62
CONTENTS
I. INTRODUCTION
With this Survey Note, the NoTRE DAME LAWYER continues an analysis, first
published in 1958,' of the problems inherent in the church-state relationship. The
second such analys
is appeared in the May, 1960
, number of the LAWYER. 2
This Note is an attempt to examine criticallyand exhaustively the judicialrecog
nition of this relation over the past two years. That purpose, stated by the editors
of the first Survey, remains the same. It is not our objective, in this analysis, to
provide a restatement of the legal relations between church and state. The
complexity of the problems in this area of the law deny any such hornbook approach.
Rather, it is our simple objective herein to present an exhaustive analysis of the
legal developments of the church-state relation over the past two years. To the
authors of texts much broader in scope and volume we leave the unenviable task of
presenting a complete and interrelated analysis of all the legal and political materials
dealing with the church-state problem in the United States.
The areas of controversy have remained similar in all three Surveys, but
emphas
is has been varied. While the 1960
Survey probed the area of church gambling in
great detail, that subject has, in this Survey, been relegated to a brief exposition in
the concluding section. The section on test oaths is included for the first time simply
because the first case in point was handed down in 1961 after a century and a half
of obscurity. By introducing this into the Survey, the path was cleared for a report
on the problems of individuals in the smaller, or less accepted, religions in the free
exercise of their beliefs. In addition, the editors of this Survey have included two
other areas pertaining to the church-state relation: 1) state regulation of the
religious corporate form, and 2) the status of clerical privilege in the law of evidence.
The conclusions drawn or trends seen in previous Surveys are often referred to
throughout. Thus it may be difficult to gain a complete understanding of the present
Survey without a reference to the contents of the former. This is particularly true
since, in the years covered by this Survey - as was true in the other church-state
notes - few cases have been presented for determination on constitutional grounds.
However all the topics in one way or another are illuminated by the decisions
construing the first amendment in the related fields. The areas now in the glare of
adjudication on the constitutional issue are areas such as test oaths, Sunday closing
and education. The other topics stand in varying degrees of proximity to a' final
solution.
All the topics are similar, moreover, in that each field is of practical importance
to the religions in the outcome of judicial controversy or the enactment of statutes.
These difficulties with which the various churches are confronted today are either
concerned with the state as government or with the state as a conglomerate social
body. These may be analogized to the established institution-value distinction in the
topical organization of this and past Surveys. The problems arising out of the
necessary conjunction with the state as government - e.g., education, Sunday closing
and obscenity - are those closest to the present consensus of the inclusiveness of the
first amendment. The topics considering the individual religion in a neutral, if not
hostile, society - e.g., free exercise problems - are to be considered insofar as they
are actual or potential grounds for state action in behalf of or contrary to some
professed interest of the church, and not the church itself. For the most part, the
institution-value distinction is sound, but it is not without problems; for example,
the decisions discussed herein concerning public schools in the past two years are
concerned primarily with the religious values in public facilities.
It will be noted that those areas dealing with the state as government, but not
now viewed as presenting constitutional issues, are dealt with in some cases as
nonreligious problems. The religious institutions, we shall see, are most usually looked
upon by the courts as buildings, charities, or benefits to the state. Thus the benefits
to the church are considered benefits to the state, eliminating the possibility of
conflict and a constitutional issue.
Why certain aspects of church institutional existence are presently viewed as
presenting constitutional problems a (...truncated)