Constitutional Law (Survey of Virginia Case Law - 1955)

William and Mary Review of Virginia Law, Sep 2017

By Norman A. Crandell, Published on 05/01/56

A PDF file should load here. If you do not see its contents the file may be temporarily unavailable at the journal website or you do not have a PDF plug-in installed and enabled in your browser.

Alternatively, you can download the file locally and open with any standalone PDF reader:

https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1086&context=wmrval

Constitutional Law (Survey of Virginia Case Law - 1955)

Constitutional Law (Sur vey of Virginia Case Law - 1955) Norman A. Crandell - 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)


This is a preview of a remote PDF: https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1086&context=wmrval

Norman A. Crandell. Constitutional Law (Survey of Virginia Case Law - 1955), William and Mary Review of Virginia Law, 2018, pp. 205, Volume 2, Issue 3,