Constitutional Law (Survey of Virginia Case Law - 1955)
Constitutional Law (Sur vey of Virginia Case Law - 1955)
Norman A. Crandell
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In the field of constitutional law, the decisions of the Supreme
Court of Appeals of Virginia have been, for the most part, during
the year 1955, definitive in nature. Some of the decisions are of
especial interest based either on their fact situation or on their
judicial history. Others are discussed with the viewpoint of
showing the position of the Supreme Court of Appeals with
respect to the problem with which they are confronted in relation
to that held by other jurisdictions and the United States as a
whole. Overall, the Virginia decisions reflect a continuity of
judicial opinion.
I.
SEPARATION
OF CHURCH AND STATE
State Aid to Private Schools. A recent Virginia decision,
Almond v. Day,' which involved the payment of tuition,
institutional fees, and other designated expenses to children of Virginia
citizens who died or were disabled in military service,2 has added
further definition to the separation of church and state.
The Attorney General of Virginia sought to mandamus the
issuance of warrants for such payments from the State
Comptroller, who had refused to issue vouchers on the basis that issuance
would contravene the provisions of Section 141 of the Virginia
Constitution as applied to private schools, and would be violative
-of the provisions of the Virginia and Federal Constitutions
granting religious freedom and separation of church and state. The
Court, using the test of direct and indirect benefit, held the
provisions of Item 210 were separable and that these provisions were
void and unconstitutional to the extent that they purported to
authorize payments for tuition, institutional fees and other
designated expenses of eligible children who attended approved or
designated private schools. Such payments were held to be of
direct benefit to the schools (religions) and of only indirect
benefit to the children concerned.
The Almond case clarifies at least to some extent, the question
of state aid to religions. The nine-year-old Supreme Court case
of Everson v. Board of Education established the very clear
standard that the Constitution creates a high wall between church
and state and that state aid even to all religions is forbidden. And
in Cantwell v. State of Connecticut4 it was said, "it is settled that
the Due Process clause of the 14th Amendment has rendered the
legislature of the states as incompetent as Congress to enact such
laws."
The Everson case by a five-to-four decision held that public
reimbursement to parents for bus fares to public and parochial
schools was of direct benefit to the parents and of only indirect
benefit to the Catholic religion. Ignoring this test, the United
States Supreme Court held in McCollum v. Board of Education5
that a released time program that was conducted in public school
buildings was unconstitutional. However, where the released
time program was not conducted in public school buildings, the
Court thought it sufficiently differentiated in Zorach v. ClausonO
so as to be constitutional. The distribution of Gideon Bibles7
and the permissive reading of the Lord's Prayer 8 were held
constitutionally different even though both cases required voluntary
assent on the part of the participants. The distribution of Gideon
Bibles was held to be a forbidden preference of one religion over
another and unconstitutional; while permissive reading of the
Lord's Prayer was held not to be sectarian and constitutional.
The Almond decision represents the adoption of the test
utilized in the Everson case, the defining of constitutionality in
terms of direct versus indirect benefit to religion. It is too early
to tell whether this test is a valid test; but, in light of the
decisions of the McCollum and Zoracb cases and the Doremus and
Tudor cases, the conclusion could be reached that attempted
differentiations without the use of some test as a guide result in
illogical distinctions. Should the McCollum and Zoracb cases
have been differentiated on the basis of the constitutionality of the
8330 U.S. 1 (1947). See Kauper, Churcb, State and Freedom: A Review
(1954).
4 310 U.S. 296, 303 (1939).
5333 U.S. 203 (1948).
6 343 U.S. 306 (1952).
7 Tudor v. Board of Education, 14 N.J. 31, 100 A.2d 857 (1953).
8Doremus v. Board of Education, 5 N.J. 435, 75 A.2d 880 (1950).
use of a school building for a released time program or on the
basis of the constitutionality of the released time program itself?
It is possible that the decision of the Supreme Court might have
been different had the court used the test of direct versus indirect
benefit, for the above question would have had to be answered.
The test utilized in Almond v. Day appears to better attain the
defining of the boundary line separating church and state.
PROCEDURAL RIGHTS
Revocation of Driver's License. Section 46-416.2 of the
Motor Vehicle Safety Responsibility Acte makes it mandatory on
the Commissioner of the Division of Motor Vehicles to (...truncated)