Church-State Religious Institutions and Values: A Legal Survey 1960-1962

Notre Dame Law Review, Dec 1962

By Joseph P. Albright, Philip B. Byrne, and N. Patrick Crooks, Published on 08/01/62

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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 0 Thi s Note is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information , please contact Follow this and additional works at; http; //scholarship; law; nd; edu/ndlr - 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)


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Joseph P. Albright, Philip B. Byrne, N. Patrick Crooks. Church-State Religious Institutions and Values: A Legal Survey 1960-1962, Notre Dame Law Review, 1962, Volume 37, Issue 5,