TILTON v. RICHARDSON

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Argument of Edward Bennett Williams

Chief Justice Warren E. Burger: --153, Mr. Williams, are -- you are next.

Mr. Edward Bennett Williams: Yes, Mr. Chief Justice.

Chief Justice Warren E. Burger: Very well, Mr. Williams.

Mr. Edward Bennett Williams: Mr. Chief Justice, may it please the Court.

I think it’s fair to say that the appellants have taken brief and argued this appeal as if no evidence had been received and no record made in the court below.

In effect, what they're asking this Court to do is to render an advisory opinion on a hypothetical caricature of what they call a “sectarian” institution of higher learning.

Twice in their briefs and yesterday during oral argument counsel said, “What the court below has held is that an institution which admits only students of a particular religion, requires them to participate in religious activities, compels them to apply with the doctrines and darkness of the religion, forces them to attend church and does everything to propagate and advance a particular religion other than conferred degrees in divinity can constitutionally receive governmental funds so long as in its bookkeeping it allocates these funds to the construction of a chemistry laboratory or gymnasium.”

I say to the Court that the record will demonstrate that not a single one of those qualifications is germane or apposite to a single institution before this Court as appellee.

Nor do they make that contention because in the very next sentence they say, “We do not contend that any of the four institutional defendants here in 50 above composite description of sectarian educational institution.”

Now, in the court below, the appellees called witnesses to the point of taxing the spirit of the cumulative evidence rule and of testing the patience of a three-judge court to show without contradiction without refutation and I say without cross-examination that first, the funded facilities of these schools were never used, are not being used for any religious worship, for any religious instruction.

They have no symbols or artifacts of religion housed therein.

Justice William J. Brennan: That’s the facts Mr. Williams?

Mr. Edward Bennett Williams: There's no question Mr. Justice that they do teach the history of religion.

Justice William J. Brennan: In these buildings?

Mr. Edward Bennett Williams: Oh!

No sir, not in these buildings but the institutions themselves first of all do have courses in religion but the evidence was without contradiction that none of these schools indoctrinate, propagate, or proselytize the tenants of any religion.

Justice William J. Brennan: Well, why my question is now?

Mr. Edward Bennett Williams: They may not --

Justice William J. Brennan: Keep you where they make.

In these buildings, may they?

Mr. Edward Bennett Williams: No, sir.

Justice William J. Brennan: The history?

Mr. Edward Bennett Williams: They do not in fact do that Mr. Justice.

Justice William J. Brennan: Why do they permit it, Mr. Williams?

Mr. Edward Bennett Williams: I think that there is nothing that would forbid them from teaching the history but they don’t do it nor have they ever done it.

But secondly, the evidence was without contradiction that these schools have a completely open admissions policy.

They --

Chief Justice Warren E. Burger: Mr. Williams, before you leave that, what would happen in response to Justice Brennan’s question.

Would there be a violation in terms -- if they taught --

Mr. Edward Bennett Williams: If they taught religion Mr. Chief Justice, or if they worship in these buildings, there would be a violation of their contractual commitment to the Government under which they received a small portion of the cost of these buildings and they would be amenable to suit for the recovery of the amount that the Government has contributed.

Secondly, --

Justice William O. Douglas: Now, we had yesterday I think from Mr. Friedman that there’s something in the way of policing of what goes on in these buildings.

Do you see any problems connected to that?

Mr. Edward Bennett Williams: I see none Mr. Justice.

These institutions contract in good faith that they will not teach religion, that they will not engage in any form of worship in these buildings --

Justice William O. Douglas: Was there any evidence in this case of any actual policing and what form it took?

Mr. Edward Bennett Williams: The court found that the evidence was uncontradicted, unrefuted by any scintilla of evidence that there was no worship, that there was no artifacts of religions.

Justice William O. Douglas: Was there any evidence that in fact any policing have been done and if any, what form?

Mr. Edward Bennett Williams: There was no evidence of any policing in this case, no.

Chief Justice Warren E. Burger: Is the commitment, Mr. Williams, a negative one or an affirmative one?

Is it an affirmative one in the sense that there is an engagement or commitment affirmatively to teach chemistry or whatever completely secular subject?

Mr. Edward Bennett Williams: It’s a negative commitment Mr. Chief Justice.

However, in this particular case, the buildings were science buildings, a foreign language laboratory, a music art and drama building and two libraries.

The libraries were shown to have completely open policies with respect to books.

The record shows that each of these institutions has adopted the American Association on University Professors policy on tenure in academic freedom.

That there is no inhibition with respect to what any teacher may teach within the confines of his own discipline on this campus.

That there is no required religious worship whatsoever at any of these institutions.

That there is no form of indoctrination at any of these institutions and that these institutions are funded by tuitions, gifts, endowments and fees --

Justice William O. Douglas: Let me say Mr. Williams, there's no religious instruction at all at any of them?

Mr. Edward Bennett Williams: There is religious instruction at the colleges.

Yes, Mr. Justice.

Justice William O. Douglas: I mean of the four -- we have four, don’t we?

Mr. Edward Bennett Williams: We have four schools and each of the schools --

Justice William O. Douglas: And there is religious instruction of each?

Mr. Edward Bennett Williams: Each of the schools offers courses in religion.

Justice William O. Douglas: Are those -- is attendance as part of the curriculum for degree required the attendance on those courses?

Mr. Edward Bennett Williams: Three of the institutions Mr. Justice.

It is required for Catholics to take courses in religion.

At the fourth institution, there is a requirement that all students take a course in religion but it’s interesting to know Mr. Justice that there's a stipulation in this case which covers all of the institutions that courses and religious studies cover a range of human religious experiences and are not limited to courses about the Roman Catholic religion.

And it’s further interesting to note, if the Court please, that the one institution which requires religion in order to matriculate for a liberal arts degree has a series of courses which are in all respects I suggest to the Court identical with the courses being offered at Trinity College in Hartford, Connecticut and at Wesleyan University at Hartford, Connecticut which appellants concede would be eligible for grants under this Act.

And I invite the Court to look at the defendant’s exhibit SH-2, which is the Sacred Heart Religious Department wherein courses in theories of religion, problems of religion, modern Jewish life and thought, American Protestantism, faith and unbelief, atheism and secularism, search for God in the modern novel are courses that are being taught by priests, by rabbis, by Lutheran ministers and by laymen.

Justice William O. Douglas: Of course the District Court as I read its opinion didn’t get into these facts that you're talking about.

Mr. Edward Bennett Williams: The District Court Mr. Justice --

Justice William O. Douglas: The District Court -- I understand that the attack is upon the standards applied by District Court in determining whether there is establishment.

Mr. Edward Bennett Williams: The District Court Mr. Justice heard this evidence and the evidence is --

Justice William O. Douglas: I'm talking about its opinion.

Mr. Edward Bennett Williams: It fills the record.

It does not get into these facts in its opinion or if you will --

Justice William O. Douglas: It wouldn’t have to perhaps if a standard is correct.

It says on page 51, “we hold that the Act has a primary effect that neither advances nor inhibits religion.”

Now that’s --

Mr. Edward Bennett Williams: That’s exactly so Mr. Justice, it was --

Justice William O. Douglas: But it has a secondary effect, is that the right test what I imagine?

Mr. Edward Bennett Williams: I suggest it is.

Appellants consistently urged upon the lower court that the test should be the nature of the institution which was the incidental beneficiary of the grant.

We consistently urge upon the Court that the test should be what this Court has evolved in the course of 25 years from Everson to McGowan, to Schempp, to Allen and finally in Epperson.

That the test is whether the statute has a secular purpose and a primary effect that neither advances nor inhibits religion and of course --

Justice William O. Douglas: Would you stop right there a moment.

Mr. Edward Bennett Williams: Yes, sir.

Justice William O. Douglas: To the extent that there is policing of what goes on and this funded – federally-funded building.

Mr. Edward Bennett Williams: Yes, sir.

Justice William O. Douglas: Do you see any hazard of inhibition, inhibiting religion?

Mr. Edward Bennett Williams: I do not Mr. Justice for these reasons.

Justice William O. Douglas: Well, as I gather policing would mean stepping in and a lot of interrogation by Government officials as to whether or not this course to that course has a religious content?

Mr. Edward Bennett Williams: I think it would not require stepping in and it would require a lot of surveillance.

First of all, I don’t think it does violence presumptively to expect that these colleges and universities will deal with the Government in good faith.

Certainly, there would be no incentive to conduct religious worship or sectarian instruction in an expensive building devoted to science filled with laboratories or in a library when there are other buildings which fully serve that purpose.

But I would like to take Mr. Justice, that concave side of these convicts proposition and apply the Walz test is articulated by this Court to the statute we’re dealing with.

In Walz, there was a caveat.

A caveat that was supplementary to the purpose and primary effect test as I read that decision.

The Court said, “We must look at primary effect and notice whether or not there is involved in excessive entanglement between state and religion, between church and state.”

Now, here there is the most perfunctory kind of surveillance that may take place in the event that a complaint is large that there was religion being conducted in one of these buildings.

But let’s look at the other side, counsel for the appellants say and they say, we give that we concede that all church-related schools are not barred from this program.

Well, then what schools are barred?

The schools that are barred say they, the theory of our suit is that the Constitution forbids support by the federal government of any institution which teaches or practices religion.

Again, they said in the lower court, if the institution teaches or practices religion as to unconstitutional to allocated funds.

In this Court they say, “We assert that under the Establishment Clause an institution is barred from receiving funds, if the propagation teaching or practice of religion is a meaningful and major part of its existence.”

So, what is the criterion that they urge?

They urged least throughout their briefs the Harshman test promulgated by the Court of Appeals of the State of Maryland in 1968.

Now, what is the Harshman test?

It involves first of all a determination of the purpose of the college.

Second, it involves an analysis of the religious constituency of the governing board, the student body, the faculty and the administrators.

It involves a determination as to where the school gets its financial support whether religion.

Whether religion and prayer and meaningful and significant on these campuses.

Whether the activities of the alumni are really projections or extensions of the teachings of the school and what the image of the school is in the community.

I suggest that to apply that test, that is being urged by the appellants is the very kind of entanglement that this Court eschewed and shunned and avoided in relationship to the ad valorem real estate tax test in Walz against the Tax Commission because it would require a constant surveillance to determine the ever-changing character institution of 817 church-related colleges and universities.

60% of the private schools in America today private higher educational institutions are church-related.

To take the appellants’ test would throw the whole administration of the higher education facilities act into chaos and confusion.

It would cast doubt over the eligibility for grants of 60% of the private higher educational institutions in the United States and introduce an amorphous test in capable of application without continuous surveillance as these schools change their character to meet the test imposed by the Court.

So I suggest as against that Mr. Justice, as against that for which they contend that the kind of surveillance that is necessary to look at a building and seek whether or not in the building there is any religious instruction is de minimus.

Now, --

Justice Potter Stewart: I take that you and think it’s unnecessary to address yourself to whether or not the case would be different if you didn’t have a school here is that satisfied your opponent’s definition of the sectarian institution?

Mr. Edward Bennett Williams: I don’t think it’s unnecessary to address myself to that if you’re interested in that Mr. Justice.

I think this that the kind of institution that he has hypothesized here as the basis for asking this Court for an advisory opinion makes it impossible I suggest to segregate the secular from the sectarian -- the secular from the religious.

And I suggest to the Court --

Justice Byron R. White: In those institutions -- in an institution of that kind, if there are any.

Mr. Edward Bennett Williams: And I don’t think that there is one unless it be a Divinity School Mr. Justice and they have been carved out of the act specifically.

But the kind of institution that he hypothesizes I know not -- I don’t know of a single one nor has one been suggested by the appellants and I suggest that the appellants repeatedly reminded the lower court that they could have brought this case in anyone of 50 jurisdictions and they could have named anyone of a number of the institutions and that they named the Secretary of Health, Education, and Welfare.

They brought it in Connecticut.

I don’t think it’s a violent presumption to suggest that they brought it in a jurisdiction which was not evidentially unfavorable to the cause which they were asserting.

Justice William O. Douglas: Well then, under your argument then the clergyman could be put on the federal payroll provided he was teaching physics or math or --

Mr. Edward Bennett Williams: There isn’t any -- Mr. Justice, there isn’t any teacher on the payroll in this --

Justice William O. Douglas: I understand, I'm just wondering how far this theory of yours goes because we have other cases like that coming.

Mr. Edward Bennett Williams: Oh!

We have clergyman on the payroll across the road here in the Congress and I suppose if they are doing a wholly secular function if it is secularly segregable so that there can be no game saying that what they are doing is purely secular that would be possible.

In Bradfield against Roberts, we had an institution owned, controlled, and operated by a monastic order of nuns.

This was decided in 1899 and a contract was entered into between the federal government and this monastic order or nuns to erect an isolation ward at the providence hospital which is still extent in here in the District of Colombia.

Justice William O. Douglas: Was that -- it wasn’t an education institution?

Mr. Edward Bennett Williams: It was not an education institution Mr. Justice but in so far as the focus is whether it is sectarian or secular, I suggest to you that there is no difference between practicing medicine and teaching science, mathematics or foreign language because each is a wholly secular function and that's what the Government was subsidizing in Bradfield v. Roberts and my brother concedes that so long as the function is purely secular that a contribution or a subsidy may be made to a church institution.

He made that concession here yesterday.

Now, this function was wholly secular in Bradfield v. Roberts and the sole line of distinction that counsel was able to draw between Bradfield against Roberts and the case at Bar was that Bradfield against Roberts had an open admission’s policy suggesting to this Court that the institutions before the Court today do not and I say that’s a demonstrable untruth from the record.

Justice Byron R. White: What if they did know Mr. Williams, suppose there was a condition for matriculation that you’d be a Catholic?

Mr. Edward Bennett Williams: Well, there couldn’t be here Mr. Justice because (Voice Overlap).

Justice Byron R. White: Well, that couldn’t be but then you don’t suppose and you suggest that it’s just really an academic question that it maybe that schools -- there are any schools like that.

Mr. Edward Bennett Williams: There are any schools like that and there can't be under this statute because plaintiffs exhibit number 126, which is in evidence shows that each of the schools must affirm and must give assurance that they are complying with Title VI of the Civil Rights Act of 1964 which inhibits all forms of discrimination but there is not in this case and there can't be.

Justice Byron R. White: What happened to these buildings to be (Inaudible)?

Mr. Edward Bennett Williams: The Government’s interest in the buildings Mr. Justice, under the statute exists for 20 years and at the end of 20 years, there is no further surveillance.

I should say Mr. Justice --

Justice Byron R. White: Are they free to use these buildings and for religious purposes?

Mr. Edward Bennett Williams: They're free to use them as they choose Mr. Justice.

Now, may I respond to a question that you propounded yesterday.

I think you asked if I recall correctly how much money these institutions before the Bar received in the State of Connecticut.

They received the total of $1,800,000.00 out of $18 million that were given to institutions in the State of Connecticut during the same period of time.

Now, I think its significant Mr. Justice to recognize that in each instance the university or the college received less than 20% of the cost of the building.

The maximum that they can receive is 33%.

For example, the science building at Fairfield University, the record shows cost over $4 million the grant was $500,000.00.

A comparable figures are true with respect to the library and the library at Sacred Heart University, a $24,000.00 grant was given to Albertus Magnus for the foreign language laboratory where the students may go to listen and practice modern languages.

So, that it is not Mr. Justice, as though the Government is giving a building -- a whole building to these schools.

It is giving a small percentage of the cost of the buildings and the schools must to commit to pay the rest.

The design being to increase the academic facilities across the country so that instead of 4,200,000 students having a college education in 1960, seven million students are having a college education in the 1970’s as projected by the then president when he proposed this legislation.

Now, if the Court please --

Justice William O. Douglas: I suppose you agreed that the federal government or -- neither the federal government nor state could have created these institutions launched them and charted and finance them?

Mr. Edward Bennett Williams: Well, I think that Mr. Justice --

Justice William O. Douglas: In their entirety?

Mr. Edward Bennett Williams: In their entirety, we would run a foul of the Establishment Clause because in that instance, they would be launching an institution which was teaching religion and if it was subsidizing the institution in its entirety --

Justice Potter Stewart: That would also of course be true to Yale or Harvard or Columbia or Princeton wouldn’t it?

Mr. Edward Bennett Williams: Yale and Harvard, I think --

Justice Potter Stewart: The federal government couldn’t start any of those the way they were started.

Justice William O. Douglas: Well, the way they were, we’re talking about today starting at Yale today is I suppose that could be a federal institution without any problem.

Mr. Edward Bennett Williams: Well, it’s interesting to note Mr. Justice that Yale today of course has a Department of Religion and I think offers us selection about as broad as the institutions which were before the Bar.

Trinity and Wesleyan which were mentioned in the complaint filed by the plaintiffs, I suggest to have religious courses that are as broad as the religious courses that are offered in the case at Bar.

Chief Justice Warren E. Burger: By any chance, does this record show what the cost is of some of the major medical schools in the country funded by the federal government such as Harvard Medical School?

Mr. Edward Bennett Williams: No, Mr. Chief Justice we never got in to the area of graduate schools.

Our focus was confined exclusively to secondary schools offering academic degrees after high school.

We did not get into medical schools and we didn’t get into any other form of graduate education.

Now, this Court has recognized in its promulgation of the purpose and primary effect test on four occasions, on four occasions as that test has evolved historically beginning in 1947 and rearticulated again last year.

That the purpose and primary effect test presumes that there may be some incidental benefit to religion.

It presumed it in Everson.

It presumed it in McGowan against Maryland, the Sunday Closing Laws.

It presumed that in Board of Education against Allen the Textbook Law and of course it presumed it in Walz.

Again, this Court has said on three occasions clearly and unambiguously that the mandate of the Constitution in the Establishment Clause is not that the Government must be hostile to religion, but that it must be neutral as between religion and irreligion and as among the sex of religion.

It said this in Everson.

It said it in Zorach against Clauson, and it said it in Abington against Schempp.

Clearly, I suggest to the Court that if the Congress had gerrymandered the church related schools out of this Bill by virtue of the fact that they were teaching religion or by virtue of the fact that worship was taking place on the campus that it would have manifested a constitutionally inhibited hostility to religion.

Now, again this Court has said and it has said three times in applying the purpose and primary effect test that the focus in determining the effect, the focus in determining the secularity of the effect is not on the nature of the institution receiving the benefit but it’s on the function being subsidized.

It said it in Everson and it said it in McCollum against the Board of Education which struck down a prayer program or a religious instruction program on the premises of the Illinois school system because it focused on the function being subsidized, not on the nature of the institution.

And finally, it said in Board of Education against Allen that it’s the function being subsidized that is to determinative de facto.

So, I suggest here, you have a wholly secular function that is receiving a grant in part for the purpose of its erection and that it clearly passes the purpose and primary effect test.

Justice Byron R. White: Well, do you suggest that the only test that primary effect is whether the Government achieves its secular purpose and that it’s irrelevant what consequences --

Mr. Edward Bennett Williams: I don’t say quite that Mr. Justice, but I do say that if there is a piece of legislation which is passed by the Congress at the instance of the President for a specific purpose and it is demonstrated that the legislation implements that purpose that it’s reasonable to say that that’s the primary effect of the legislation.

Justice Byron R. White: Even though wholly aside from how much or how important or how significant an aid to the religious activities may be?

Mr. Edward Bennett Williams: If the purpose is secular, if the purpose is secular as it was here, then I suggest that if the purpose is fulfilled and implemented as it was here because it has been shown in this record that in fact the purpose was fulfilled then I suggest to the Court that that is the primary effect notwithstanding that there may be some benefits flowing to religion.

Justice Byron R. White: Or regardless how much significant that is.

Mr. Edward Bennett Williams: I don’t think that it would be relevant as to how significant if you're talking about significance in terms of monetary benefit.

I don’t think that would be a relevant fact.

Justice William O. Douglas: Well, suppose if you put the clergyman on the payroll and he’s teaching physics that takes him off the budget of the school for the performance of other things (Voice Overlap).

Mr. Edward Bennett Williams: As long Mr. Justice, as there can be a secularly segregable function.

If it can be secularly segregable and we have to develop a record to show whether it could be or not, we didn’t have that problem in this case.

But if it could be a secularly segregable function, there is no reason that the Government may not offer a subsidy.

This Court has recognized for 50 years that church-related school performed both a secular function and at the same time offer religious instruction.

It recognized this in Pierce against the Society of Sisters in 1925, it recognized in Board of Education against Allen, that these schools are performing the function of great social dimension to the State of providing a secular education -- that providing a secular --

Justice William O. Douglas: I suppose anybody has ever doubt to that, at least on this board.

Mr. Edward Bennett Williams: And so long as legislation can be tailored so that the subsidy or the grant only affects the secular facet of the school, this Court has consistently held that it is not violated of the Establishment Clause.

Justice William O. Douglas: Well, (Voice Overlap) Mr. Williams that, take your $4 million building suppose it had two wings.

The Government’s contribution is a half million dollars one wing is the science laboratory; the other wing is a church.

Would that qualify?

Mr. Edward Bennett Williams: Oh!

The statute covers that quite clearly Mr. Justice.

It says that the facility to which the contribution has been made or for which the contribution has made -- been made, may not be used for sectarian worship or religious instruction.

Now, this would be an entity, it would be a facility as you have hypothesized the situation.

Therefore, in that law facility there could be no religious instruction, there could be no worship and I suggest there could be no symbols or artifacts of religion and indeed that is precisely what is taken place in the case at Bar at each of these four institutions.

I suggest to the Court that the participial phrases which form the Establishment Clause finally come down to one basic principle that the Government may not use religion as a standard for action or inaction that it may not use as a criterion to confer a benefit or to impose a burden and that this case passes that test.

Chief Justice Warren E. Burger: Thank you Mr. Williams.

Mr. Pfeffer, you have eight minutes.

Argument of Leo Pfeffer

Mr. Leo Pfeffer: Thank you Mr. Chief Justice.

First, I find it necessary to correct a statement on test made by Mr. Williams and I do it so because it is critical to this decision.

Mr. Williams said that the statute requires the institutions to comply with Title VI of the Civil Rights Act of 1964 which forbids all form of discrimination.

And Mr. Williams is in error, it does not forbid all forms of discrimination, it does permit religious discrimination.

It forbids discrimination on race, color, or national origin but it does permit, if the word “religion” was deliberately taken off, it does permit religious discrimination, it does permit the use of federal funds to finance an institution which discriminate religiously.

This is critical to this case because they pointed out the difference between Bradfield, difference to all these cases is that this case allows an institution to discriminate religiously to exclude a religious basis.

I also want to state and make clear our position.

We do not concede any fact other than the fact that the institutions which are Connecticut or all over the United States do make a written commitment that in the particular facilities by that they will not teach or practice religion.

We do not agree with Mr. Williams’ interpretation of the record below.

We have here, we prepared shot so our analysis of the evidence which reads conclusive directly contrary to Mr. Williams, we didn’t bring them here because there’d be no findings of fact, we don’t believe this is a trial court.

There is -- was a great dispute in the court below between valid evidences relevant.

We contended the element was relevant with that which dealt with the time when the grants to these institutions were authorized by the Government.

Most of the testimony the evidence put forth by Mr. Williams why we didn’t cross-examine.

We objected to it.

Dealt with facts which occurred after, after those grants were authorized, which occurred up to date of trial and even which have been planned for future implementation.

There were two different institutions in each case. One when the grant was made.

One when the trial was conducted.

We contend that the evidence which we present as of the time when the grants were authorized did justify a finding of fact that at least one or more of these institutions did exclude students who were not of the requisite phase.

Now, if the Court deems that to be a critical fact as I believe it is, I think the Court is not a trial court.

It didn’t observe the demeanor of the witnesses.

It should, I believe, remand it to determine those facts.

Now, on --

Justice William J. Brennan: Could I ask you question Mr. Pfeffer.

Mr. Leo Pfeffer: Yes.

Justice William J. Brennan: Do you think your argument runs in anyway to a free exercise problem?

Suppose in the religious organization cut out of the stand so you can see the power of federal government to subsidize and operate schools, cut out the religious grants.

Do you think it’s a kind of a free exercise problem?

Mr. Leo Pfeffer: Well, if we did and all I can say Mr. Justice that for well over a century and a half.

Every State in the Union bar not was guilty of the violation of the freedom of religion of thousands of thousands of people because never before and I repeat again, before this Act do we find a situation where public funds are used to subsidize an institution of education institution limited to one phase.

Now, on respect of --

Justice Byron R. White: And you would apparently suggest also that the Establishment Clause is so rigid that a legislature may not take notice of free exercise values in terms of a problem like this?

Mr. Leo Pfeffer: On the contrary, I think the whole Constitution must be considered.

I -- my argument is -- our confession is on the contrary that the history of the struggle for freedom of religion in this country is a large measure -- a history of a struggle against compulsory taxation for religious purposes.

And it’s our contention on the contrary that the tax make a non-catholic in order to support an institution where she is catholic probably took even if it’s only to catholic students as Mr. Williams has conceded, even that to me I can sense that that is a violation of the free exercise of religion.

Now, in respect to the Bradfield against Roberts, Mr. Williams has spoke of, I tried yesterday to distinguish that in the brief spent a considerable time at but I think the test can be set to be this to distinguish Bradfield and other cases.

The test is whether the facility is free standing or intergraded into the totality of a curriculum whereby the same student is exposed to the propagation of religion and the institution has its major partners to propagate religion to that student.

What I mean by this is that if in order, if the services at the hospital are part of a unit which includes the inculcation of religious doctrine and the student and the patient must take both his treatment for his disease and propagation of religion, that’s unconstitutional.

That is a situation in this case.

No person can walk off the street and comment and say, “I want to use this chemistry laboratory or in this biology laboratory or I want to enroll only for this one cause.”

He is a complete student.

He must take a whole works inc -- if he’s a catholic certain.

He must take the whole works including of course in the propagation of the catholic religion.

That, I believe is the test.

Now one word about pertinence, we are in this Court because the Congress is coordinate branch of Government.

This Court is of course bound by the Congress statement of pertinence -- I don’t believe that’s true in respect of States legislature but in respect to Congress.

But it must examine what the purpose is.

Mr. Friedman yesterday pointed out and the court below found that the purpose is to increase enrolment and the school is not to give additional facilities to anybody who wants those facilities but in order to increase enrolment in those schools.

And you can do it Congress said, “By making these facilitates available so that in the enrolment of students.

I submit in all deference that taking just one of the institutions with Sacred Heart University just an illustration which is exhibit in the case its own statement of what its purposes are.

On page 16, it says, “Convince of the necessity of a catholic education at every level for all catholic youth, the bishop who founded the Sacred Heart University shortly before the opening of (Inaudible) to announce that Sacred Heart University would be organized.”

He said, “It is a conviction of its founder and (Inaudible) major mission of the church can be carried on by laymen in the catholic university.

I submit if a purpose of an institution is to carry out the major mission of the church and funds are granted to that institution in order that it can expand its enrolment.

I submit --

Justice Byron R. White: When was the policy institution founded, Mr. Pfeffer?

Mr. Leo Pfeffer: I'm sorry.

Justice Byron R. White: When was the institution founded by (Voice Overlap)?

Mr. Leo Pfeffer: This institution would found in the early 60’s.

Justice Byron R. White: What 1960 or 1860, 1760 and 1660?

Mr. Leo Pfeffer: 1962.

Justice Byron R. White: 1962.

Mr. Leo Pfeffer: Yes, 1962.

Shortly before Vatican 1962.

It’s a very new institution.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Pfeffer.

Thank you Mr. Williams, Mr. Friedman.

The case is submitted.