Following this Court's invalidation in
Lemon v.
Kurtzman, 403 U. S. 602
(
Lemon I) of Pennsylvania's statutory program to reimburse
nonpublic sectarian schools (hereafter school) for secular
educational services, the District Court, on remand, enjoined any
payments under the program for services rendered after
Lemon
I, but permitted Pennsylvania to reimburse the schools for
service performed prior to that decision. Appellants challenge the
scope of this decree.
Held: The judgment is affirmed. Pp.
411 U. S.
197-209.
348 F.
Supp. 300, affirmed.
THE CHIEF JUSTICE, in an opinion joined by MR. JUSTICE BLACKMUN,
MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST, concluded that the
District Court did not abuse its discretion in permitting
Pennsylvania to reimburse the schools for services rendered and
costs incurred in reliance on the statutory scheme prior to its
invalidation in
Lemon I. Pp.
411 U. S.
197-209.
(a) An unconstitutional statute is not absolutely void, but is a
practical reality upon which people rely. Courts recognize that
reality. Pp.
411 U. S.
197-199.
(b) A trial court has wide latitude in shaping an equitable
decree and reaching an accommodation between public and private
needs. Pp.
411 U. S.
200-201.
(c) The contested reimbursement will not contravene the
constitutional principle of
Lemon I of avoiding the
ongoing entanglement of church and state, since only a final,
ministerial post-audit is involved, and no further detailed state
surveillance of the schools is required. At the same time, however,
supervision already conducted by Pennsylvania officials insures
that the proposed reimbursement will not be used for sectarian
purposes. The proposed payment reflects only the schools' expenses
incurred in expectation of reimbursement. Pp.
411 U. S.
201-202.
(d) The schools relied in good faith on the state statute, which
invited the contracts and authorized reimbursement for past
services; and appellants, in self-styled "sensible recognition of
the
Page 411 U. S. 193
practical realities of the situation," may well have encouraged
such reliance by the schools by not moving to have the payments
enjoined before the contract service had been performed. Pp.
411 U. S.
203-205.
(e) The schools could not have anticipated the
Lemon I
holding, which involved resolution of an issue of first impression
that "was not clearly foreshadowed." Pp.
411 U. S.
206-207.
(f) A State and those with whom it deals are not to be subjected
to harsh retrospective relief merely because they act on the basis
of presumptively valid legislation, in the absence of contrary
judicial direction. Pp.
411 U. S.
207-209.
MR. JUSTICE WHITE concurred in the judgment.
BURGER, C.J., announced the judgment of the Court and an opinion
in which BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE J.,
concurred in the judgment. DOUGLAS, J., filed a dissenting opinion,
in which BRENNAN and STEWART, JJ., joined,
post, p.
411 U. S. 209.
MARSHALL, J., took no part in the consideration or decision of the
case.
MR. CHIEF JUSTICE BURGER announced the judgment of the Court and
an opinion in which MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and
MR. JUSTICE REHNQUIST join.
On June 28, 1971, we held that the Pennsylvania statutory
program to reimburse nonpublic sectarian schools for certain
secular educational services violated the Establishment Clause of
the First Amendment. The case was remanded to the three-judge
District Court for further
Page 411 U. S. 194
proceedings consistent with our opinion.
Lemon v.
Kurtzman, 403 U. S. 602
(1971) (
Lemon I). On remand, the District Court entered
summary judgment in favor of appellants and enjoined payment, under
Act 109, of any state funds to nonpublic sectarian schools for
educational services performed after June 28, 1971. The District
Court's order permitted the State to reimburse nonpublic sectarian
schools for services provided before our decision in
Lemon
I. Appellants made no claim that appellees refund all sums
paid under the Pennsylvania statute [
Footnote 1] struck down in
Lemon I.
Appellants, the successful plaintiffs of
Lemon I, now
challenge the limited scope of the District Court's injunction.
Specifically, they assert that the District Court erred in refusing
to enjoin payment of some $24 million set aside by Pennsylvania to
compensate nonpublic sectarian schools for educational services
rendered by them during the 1970-1971 school year. We noted
probable jurisdiction, 406 U.S. 943 (1972), and we affirm the
judgment of the District Court.
(1)
The specifics of the Pennsylvania statutory scheme held
unconstitutional in
Lemon I need be recalled only briefly.
Under Act 109, the participating nonpublic schools of Pennsylvania
were to be reimbursed by the State for certain educational services
provided by the schools pursuant to "purchase of service" contracts
with the State. According to the terms of the contracts, the
schools were to provide teachers, textbooks, and instructional
materials for mathematics, modern foreign language, physical
science, and physical education courses -- "secular" courses of
instruction. The State was not only to compensate the schools for
the services provided, but
Page 411 U. S. 195
also to undertake continuing surveillance of the instructional
programs to insure that the services purchased were not provided in
connection with "any subject matter expressing religious teaching,
or the morals or forms of worship of any sect."
See Lemon I,
supra, at
403 U. S.
609-610.
Under § 5607 of the Act, any nonpublic school seeking
reimbursement was to
"maintain such accounting procedures, including maintenance of
separate funds and accounts pertaining to the cost of secular
educational service, as to establish that it actually expended in
support of such service an amount of money equal to the amount of
money sought in reimbursement."
To this end, the school accounts were to be subject to audit by
the State Auditor General. Actual payment was to be made by the
Superintendent of Public Instruction
"in four equal installments payable on the first day of
September, December, March and June of the school term
following the school term in which the secular educational
service was rendered."
(Emphasis supplied.)
In
Lemon I, we held that, although Act 109 had a
secular legislative purpose, the Act fostered "excessive
entanglement" of church schools and State through the requirement
of ongoing state scrutiny of the educational programs of sectarian
schools, the statutory post-audit procedures, and potential
involvement in the political process. We found it unnecessary to
decide whether Act 109 was constitutionally infirm on the
additional ground that the "primary effect" of any state payments
to church-related schools would be to promote the cause of religion
in contravention of the Establishment Clause of the First
Amendment.
(2)
Against this backdrop, we turn to the events relevant to this
appeal. On June 19, 1968, Act 109 became law. Approximately one
month later, appellants publicly declared their intention of
challenging the constitutionality
Page 411 U. S. 196
of the new legislation. During the following six months, the
State took steps to implement the Act, promulgating regulations
and, in January, 1969, entering for the first time into service
contracts for the 1968-1969 school year (then in progress) with
approximately 1,181 nonpublic schools throughout Pennsylvania. The
schools submitted schedules in June, 1969, at the conclusion of the
1968-1969 school year, specifying the precise items of expense
during that year for which they would seek reimbursement, to be
made during the 1969-1970 school year. On June 3, 1969, appellants
filed their complaint, asking that Act 109 be declared
unconstitutional, and its enforcement enjoined.
Simultaneously with their 1969 complaint, appellants filed a
motion for a preliminary injunction to restrain the responsible
state officials from "paying or processing for paying any funds
pursuant to [Act 109]." However, appellants abandoned the request
for preliminary relief in a letter of August 28, 1969, from their
counsel to Judge Troutman. Appellants, describing their position as
a
"sensible recognition of the practical realities of the
situation, . . . withdrew from any attempt to prevent initial
payment to the nonpublic schools scheduled for September 2
[1969]."
In the same letter, appellants' counsel mentioned the payments
scheduled for December 2, 1969, but, in fact, no attempt was ever
made to enjoin those reimbursements.
On November 29, 1969, a divided District Court granted
appellees' motion to dismiss appellants' complaint for failure to
state a claim on which relief could be granted. Appellants filed a
notice of appeal to this Court on December 17, 1969; at no time
before or after probable jurisdiction was noted on April 20, 1970,
did appellant move for interlocutory relief pending appeal, even
though, on January 15, 1970, the schools entered into service
contracts with the State for the 1969-1970 school year.
Page 411 U. S. 197
Consequently, the District Court had no occasion to consider the
exercise of injunctive power
pendente lite.
In September, 1970, the schools began performing services for
the 1970-1971 school year, compensable under the terms of Act 109,
and, on January 15, 1971, contracts were entered into for that
school year. On June 28, 1971, we held Act 109 unconstitutional and
remanded the cause to the District Court for further proceedings
consistent with our opinion. Not until appellant filed their motion
for summary judgment, in August, 1971, did they first indicate
their intention to prevent reimbursement under Act 109 for the
services already provided by the schools during the 1970-1971
school year.
(3)
Claims that a particular holding of the Court should be applied
retroactively have been pressed on us frequently in recent years.
Most often, we have been called upon to decide whether a decision
defining new constitutional rights of a defendant in a criminal
case should be applied to convictions of others that predated the
new constitutional development.
E.g., Robinson v. Neil,
409 U. S. 505
(1973);
Adams v. Illinois, 405 U.
S. 278 (1972);
Desist v. United States,
394 U. S. 244
(1969);
Stovall v. Denno, 388 U.
S. 293 (1967);
Johnson v. New Jersey,
384 U. S. 719
(1966);
Tehan v. Shott, 382 U. S. 406
(1966);
Linkletter v. Walker, 381 U.
S. 618 (1965). But
"in the last few decades, we have recognized the doctrine of
nonretroactivity outside the criminal area many times, in both
constitutional and nonconstitutional cases."
Chevron Oil Co. v. Huson, 404 U. S.
97,
404 U. S. 106
(1971);
Hanover Shoe v. United Shoe Machinery Corp.,
392 U. S. 481
(1968);
Simpson v. Union Oil Co., 377 U. S.
13 (1964);
England v. State Board of Medical
Examiners, 375 U. S. 411
(1964). We have approved nonretroactive relief in civil litigation,
relating, for example,
Page 411 U. S. 198
to the validity of municipal financing founded upon electoral
procedures later declared unconstitutional,
Cipriano v. City of
Houma, 395 U. S. 701
(1969), and
City of Phoenix v. Kolodziejski, 399 U.
S. 204 (1970); or to the validity of elections for local
officials held under possibly discriminatory voting laws,
Allen
v. State Board of Elections, 393 U. S. 544
(1969). In each of these cases, the common request was that we
should reach back to disturb or to attach legal consequence to
patterns of conduct premised either on unlawful statutes or on a
different understanding of the controlling judge-made law from the
rule that ultimately prevailed.
Appellants urge, as they did in the District Court, a strange
amalgam of flexibility and absolutism. Appellants assure us that
they do not seek to require the schools to disgorge prior payments
received under Act 109; in the same breath, appellants insist that
the presently disputed payment be enjoined because an
unconstitutional statute
"confers no rights; it imposes no duties; it affords no
protection; it creates no office; it is, in legal contemplation, as
inoperative as though it had never been passed."
Norton v. Shelby County, 118 U.
S. 425,
118 U. S. 442
(1886). Conceding that we have receded from
Norton in a
host of criminal decisions and in other recent constitutional
decisions relating to municipal bonds, appellants nevertheless view
those precedents as departures from the established norm of
Norton. We disagree.
The process of reconciling the constitutional interests
reflected in a new rule of law with reliance interests founded upon
the old is "among the most difficult of those which have engaged
the attention of courts, state and federal. . . ."
Chicot
County Drainage Dist. v. Baxter State Bank, 308 U.
S. 371,
308 U. S. 374
(1940). Consequently, our holdings in recent years have emphasized
that the effect of a given constitutional ruling on prior
conduct
"is subject to no set 'principle of absolute retroactive
Page 411 U. S. 199
invalidity,' but depends upon a consideration of 'particular
relations . . . and particular conduct . . . of rights claimed to
have become vested, of status, of prior determinations deemed to
have finality,' and 'of public policy in the light of the nature
both of the statute and of its previous application.'"
Linkletter, supra, at
381 U. S. 627,
quoting from
Chicot County Drainage Dist., supra, at
308 U. S. 374.
However appealing the logic of
Norton may have been in the
abstract, its abandonment reflected our recognition that statutory
or even judge-made rules of law are hard facts on which people must
rely in making decisions and in shaping their conduct. This fact of
legal life underpins our modern decisions recognizing a doctrine of
nonretroactivity. Appellants offer no persuasive reason for
confining the modern approach to those constitutional cases
involving criminal procedure or municipal bonds, and we ourselves
perceive none.
In
Linkletter, the Court suggested a test, often
repeated since, embodying the recent balancing approach; we looked
to "the prior history of the rule in question, its purpose and
effect, and whether retrospective operation will further or retard
its operation."
Id. at
381 U. S. 627.
Those guidelines are helpful,
see infra at
411 U. S.
201-203, but the problem of
Linkletter and its
progeny is not precisely the same as that now before us. Here, we
are not considering whether we will apply a new constitutional rule
of criminal law in reviewing judgments of conviction obtained under
a prior standard; the problem of the instant case is essentially
one relating to the appropriate scope of federal equitable
remedies, a problem arising from enforcement of a state statute
during the period before it had been declared unconstitutional.
True, the temporal scope of the injunction has brought the parties
back to this Court, and their dispute calls into play values not
unlike those underlying
Linkletter and its progeny. But
however we state the issue, the fact remains that we are asked to
reexamine
Page 411 U. S. 200
the District Court's evaluation of the proper means of
implementing an equitable decree.
Cf. United States v. Estate
of Donnelly, 397 U. S. 286,
397 U. S. 295
(1970);
id. at
397 U. S.
296-297 (Harlan, J., concurring).
In shaping equity decrees, the trial court is vested with broad
discretionary power; appellate review is correspondingly narrow.
Swann v. Charlotte-Mecklenburg Board of Education,
402 U. S. 1,
402 U. S. 15,
402 U. S. 27 n.
10 (1971). Moreover, in constitutional adjudication as elsewhere,
equitable remedies are a special blend of what is necessary,
[
Footnote 2] what is fair, and
what is workable.
"Traditionally, equity has been characterized by a practical
flexibility in shaping its remedies and by a facility for adjusting
and reconciling public and private need."
Brown v. Board of Education, 349 U.
S. 294,
349 U. S. 300
(1955). MR. JUSTICE DOUGLAS, speaking for the Court, has said,
"The essence of equity jurisdiction has been the power of the
Chancellor to do equity and to mould each decree to the necessities
of the particular case. Flexibility, rather than rigidity, has
distinguished it. The qualities of mercy and practicality have
made
Page 411 U. S. 201
equity the instrument for nice adjustment and reconciliation
between the public interest and private needs as well as between
competing private claims."
Hecht Co. v. Bowles, 321 U. S. 321,
321 U. S.
329-330 (1944).
See also Holmberg v. Armbrecht,
327 U. S. 392,
327 U. S. 396
(1946).
In equity as nowhere else, courts eschew rigid absolutes, and
look to the practical realities and necessities inescapably
involved in reconciling competing interest, notwithstanding that
those interests have constitutional roots.
(4)
The constitutional fulcrum of
Lemon I was the excessive
entanglement of church and state fostered by Act 109. We found it
unnecessary to decide whether the
"legislative precautions [of Act 109] restrict the principal or
primary effect of the programs to the point where they do not
offend the Religion Clauses."
403 U.S. at
403 U. S.
613-614. For, as we said of both Act 109 and the similar
Rhode Island provision,
"[a] comprehensive, discriminating, and continuing state
surveillance will inevitably be required to ensure that these
restrictions are obeyed. These prophylactic contacts will involve
excessive and enduring entanglement between state and church."
Id. at
403 U. S. 619.
We further emphasized the reciprocal threat to First Amendment
interests from enmeshing the divisive issue of direct aid to
religious schools in the traditional political processes.
Id. at
403 U. S.
622-624. The sensitive values of the Religion Clauses do
not readily lend themselves to quantification, but, despite the
inescapable imprecision, we think it clear that the proposed
distribution of state funds to Pennsylvania's nonpublic sectarian
schools will not substantially undermine the constitutional
interests at stake in
Lemon I. Act 109 required the
Superintendent of Public Instruction to ensure
Page 411 U. S. 202
that educational services to be reimbursed by the State were
kept free of religious influences. Under the Act, the
Superintendent's supervisory task was to have been completed long
ago, during the 1970-1971 school year itself; nothing in the record
suggests that the Superintendent did not faithfully execute his
duties according to law. Hence, payment of the present disputed
sums will compel no further state oversight of the instructional
processes of sectarian schools. By the same token, since the
constitutionality of Act 109 is now settled, there is no further
potential for divisive political conflict among the citizens and
legislators of Pennsylvania over the desirability or degree of
direct state aid to sectarian schools under Act 109.
Two problems having constitutional overtones remain, but their
resolution requires no compromise of the basic principles of
Lemon I. There is, first, the impact of the single and
final post-audit. The record indicates that the post-audit process
will involve only a ministerial "cleanup" function, that of
balancing expenditures and receipts in the closing accounting --
undertaken only once, and in that setting a minimal contact of the
State with the affairs of the schools. Second, there is the
question of impinging on the Religion Clauses from the fact of any
payment that provides any state assistance or aid to sectarian
schools -- the issue we did not reach in
Lemon I. Yet even
assuming a cognizable constitutional interest in barring any state
payments, under the District Court holding, that interest is
implicated only once under special circumstances that will not
recur. There is no present risk of significant intrusive
administrative entanglement, since only a final post-audit remains,
and detailed state surveillance of the schools is a thing of the
past. At the same time, that very process of oversight -- now an
accomplished fact -- assures that state funds will not be applied
for any sectarian purposes. [
Footnote 3]
Page 411 U. S. 203
Finally, as will appear, even this single proposed payment for
services long since passing state scrutiny reflects no more than
the schools' reliance on promised payment for expenses incurred by
them prior to June 28, 1971.
Offsetting the remote possibility of constitutional harm from
allowing the State to keep its bargain are the expenses incurred by
the schools in reliance on the state statute inviting the contracts
made and authorizing reimbursement for pat services performed by
the school. [
Footnote 4] It is
well established that reliance interest weigh heavily in the
shaping of an appropriate equitable remedy.
City of Phoenix v.
Kolodziejski, 399 U. S. 204
(1970);
Cipriano v. City of Houma, 395 U.
S. 701 (1969);
Allen v. State Board of
Elections, 393 U. S. 544
(1969). That
Page 411 U. S. 204
there was such reliance by the schools is reflected by a well
supported District Court finding. The District Court found that
there was no dispute
"that to deny the church-related schools any reimbursement for
their services rendered would impose upon them a substantial burden
which would be difficult for them to meet. [
Footnote 5]"
348 F.
Supp. 300, 304 305.
The significance of appellee schools' reliance is reinforced by
the fact that appellants' tactical choice not to press for interim
injunctive suspension of payments or contracts during the pendency
of the
Lemon I litigation may well have encouraged the
appellee schools to incur detriment in reliance upon reimbursement
by the State under Act 109. In June, 1969, appellants initiated the
litigation that culminated in
Lemon I. Though initially
appellants moved for a preliminary injunction to block the
September, 1969, payment of funds for services rendered during the
1968-1969 school year, for reasons of their own, appellants
withdrew the request. Funds were paid in September and December,
1969, and in March and June, 1970. In 1970, the State entered
Page 411 U. S. 205
into new contracts with the nonpublic schools; appellants took
no steps to block the making of these contracts or to prevent the
State from disbursing funds, in September and December, 1970, or
March and June, 1971, for services rendered during the 1969-1970
school year. Appellants, meanwhile, had filed a notice of appeal to
this Court by the time the distribution of funds for the 1969-1970
school year began. It was only after our decision in
Lemon
I -- six months after the contracts for the 1970-1971 school
year were perfected, and after all services under those contracts
had been performed -- that appellants asserted their intention to
block the payments due beginning in the fall of 1971. Thus, for
nearly two years, the State and the schools proceeded to act on the
assumption that appellants would continue to adhere to a "sensible
recognition of the practical realities of the situation."
There has been no demonstration by the appellee schools of the
precise amount of any detriment incurred by them during the
1970-1971 school year in the expectation of reimbursement by the
State. The complexity of such a determination for each of
Pennsylvania's 1,181 nonpublic schools that contracted with the
State under Act 109 is readily apparent. [
Footnote 6] But we need not
Page 411 U. S. 206
dwell on the matter of uncertainty. On this record, the District
Court could reasonably find reliance on the part of the appellee
schools, and reasonably could conclude that no more was needed to
demonstrate retrospectively the degree of their reliance.
It is argued, though, that the schools were foolhardy to rely on
any reimbursement by the State whatever, in view of the
constitutional cloud over the Pennsylvania program from the outset.
We conclude, however, that our holding in
Lemon I
"decid[ed] an issue of first impression whose resolution was not
clearly foreshadowed."
Chevron Oil Co. v. Huson, 404 U.S.
at
404 U. S. 106.
A three-judge district court, with one dissent, upheld Act 109.
Soon after, another three-judge district court in Rhode Island held
unconstitutional the Rhode Island statutory scheme we considered
together with Pennsylvania's program in
Lemon I. Nor were
district courts alone in disagreement over the constitutionality of
Lemon-style plans to provide financial assistance to
sectarian schools. This Court was itself divided when the issue was
ultimately resolved after full briefing and argument. And the Court
acknowledged "that we can only dimly perceive the lines of
demarcation in this extraordinarily sensitive area of
constitutional law."
Lemon I, 403 U.S. at
403 U. S. 612.
[
Footnote 7]
Page 411 U. S. 207
That there would be constitutional attack on Act 109 was plain
from the outset. But this is not a case where it could be said that
appellees acted in bad faith, or that they relied on a plainly
unlawful statute. In this case, even the clarity of hindsight is
not persuasive that the constitutional resolution of
Lemon
I could be predicted with assurance sufficient to undermine
appellees' reliance on Act 109.
(5)
In the end, then, appellants' position comes down to this: that
any reliance whatever by the schools was unjustified because Act
109 was an "untested" state statute whose validity had never been
authoritatively determined. The short answer to this argument is
that governments must act if they are to fulfill their high
responsibilities. As one scholar has observed, the diverse state
governments were preserved by the Framers "as separate sources of
authority and organs of administration -- a point on which they
hardly had a choice." H. Wechsler, Principles, Politics, and
Fundamental Law 50 (1961).
Appellants ask, in effect, that we hold those charged with
executing state legislative directives to the peril of having their
arrangements unraveled if they act before there has been an
authoritative judicial determination that the governing legislation
is constitutional. Appellants would have state officials stay their
hands until newly enacted state programs are "ratified" by the
federal courts, or risk draconian, retrospective decrees should the
legislation fall. In our view, appellants' position
Page 411 U. S. 208
could seriously undermine the initiative of state legislators
and executive officials alike. Until judges say otherwise, state
officers -- the officers of Pennsylvania -- have the power to carry
forward the directives of the state legislature. Those officials
may, in some circumstances, elect to defer acting until an
authoritative judicial pronouncement has been secured; but,
particularly when there are no fixed and clear constitutional
precedents, the choice is essentially one of political discretion,
and one this Court has never conceived as an incident of judicial
review. We do not engage lightly in
post hoc evaluation of
such political judgment, founded as it is on
"one of the first principles of constitutional adjudication --
the basic presumption of the constitutional validity of a duly
enacted state or federal law."
San Antonio School District v. Rodriguez, ante, p.
411 U. S. 1, at
411 U. S. 60
(1973) (STEWART, J., concurring).
Federalism suggests that federal court intervention in State
judicial processes be appropriately confined.
See Younger v.
Harris, 401 U. S. 37
(1971), and companion cases. Likewise, federalism requires that
federal injunctions unrelated to state courts be shaped with
concern and care for the responsibilities of the executive and
legislative branches of state governments. [
Footnote 8] In short, the propriety of the relief
afforded appellants by the District Court, applying familiar
equitable principles, must be measured against the totality of
circumstances, and in light of the general principle that, absent
contrary direction,
Page 411 U. S. 209
state officials and those with whom they deal are entitled to
rely on a presumptively valid state statute, enacted in good faith
and by no means plainly unlawful.
Affirmed.
MR. JUSTICE WHITE concurs in the judgment.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
[
Footnote 1]
Nonpublic Elementary and Secondary Education Act, June 19, 1968,
No. 109, Pa.Stat.Ann., Tit. 24, §§ 5601-5609 (Supp. 1971).
[
Footnote 2]
In
Linkletter v. Walker, 381 U.
S. 618,
381 U. S. 629
(1965), the Court recalled Mr. Justice Cardozo's statement that
"the federal constitution has no voice upon the subject," citing
Great Northern R. Co. v. Sunburst Oil & Refining Co.,
287 U. S. 358,
287 U. S. 364
(1932). In
Sunburst, the Court refused to accept the
petitioner's contention that
"[a]dherence to precedent as establishing a governing rule for
the past in respect of the meaning of a statute is . . . a denial
of due process when coupled with the declaration of an intention to
refuse to adhere to it in adjudicating any controversies growing
out of the transactions of the future."
Id. at
287 U. S.
363-364. Instead, the Court held that
"A state, in defining the limits of adherence to precedent, may
make a choice for itself between the principle of forward operation
and that of relation backward."
Id. at
287 U. S. 364.
Sunburst does not, of course, suggest that we may ignore
constitutional interests in deciding whether to attach
retrospective effect to a constitutional decision of this
Court.
[
Footnote 3]
See Lemon v. Kurtzman, 403 U.
S. 602 (1971):
"If the government closed its eyes to the manner in which these
grants are actually used, it would be allowing public funds to
promote sectarian education. If it did not close its eyes, but
undertook the surveillance needed, it would, I fear, intermeddle in
parochial affairs in a way that would breed only rancor and
dissension."
Id. at
403 U. S. 640
(DOUGLAS, J., concurring).
"The Court thus creates an insoluble paradox for the State and
the parochial schools. The State cannot finance secular instruction
if it permits religion to be taught in the same classroom; but if
it exacts a promise that religion not be so taught . . . and
enforces it, it is then entangled in the 'no entanglement' aspect
of the Court's Establishment Clause jurisprudence."
Id. at
403 U. S. 668
(opinion of WHITE, J)
Here, the "insoluble paradox" is avoided, because the entangling
supervision prerequisite to state aid has already been
accomplished, and need not enter into our present evaluation of the
constitutional interests at stake in the proposed payment.
[
Footnote 4]
We agree with the District Court that whether the payments in
question constitute payments under valid contracts or a subsidy
"makes no difference in our decision." To characterize the payments
as subsidies does not "lessen the reliance of the nonpublic schools
on the payments or the subsequent hardship upon them if the
payments are not made."
348 F.
Supp. 300, 304 n. 6.
[
Footnote 5]
The District Court's comment, in turn, reflects the following
colloquy between that court and counsel for appellants at the
December 15, 1971, hearing after remand from this Court:
"MR. SAWYER: I am perfectly willing to concede -- and I think I
must here; we have taken no evidence -- that there was reliance.
And I would like to state, so there is no question about that, that
I am assuming there was reliance. I think, as a practical matter,
however, the schools continued to do what they were doing
before."
"JUDGE HASTIE: Reliance in the sense, I assume, of determining
activities and expenditures in anticipation that this amount would
be reimbursed?"
"MR. SAWYER: I know of a school that escrowed it, but I would
think that would be rare. And I have to live with that, I think,
unless I want to be prepared to go ahead and ask to take testimony
and try to prove that wasn't so. . . ."
[
Footnote 6]
As to each school, the determination of actual reliance would be
subtle, premised largely on credibility, and not on facts of
record. Nonreliance could not be assumed simply because expenditure
levels remained constant before and after Act 109; any school might
well assert that it would have reduced its educational expenditures
in some particular but for the expectation of compensation for
certain other expenditures incurred in connection with Act 109.
Similarly, the inquiry could not be limited to expenditures for
those items specified by the Act. Increased expenditures for any of
the gamut of a school's activities might have been incurred in
reliance on reimbursement for services covered by Act 109.
[
Footnote 7]
According to the dissent, appellees can "tender no
considerations of equity," because they had "clear warning" that
they were "treading on unconstitutional ground." The apparent
premise for this assertion is the view that the Establishment
Clause forbids any and all use of tax moneys to "support" or to
"subsidize" sectarian schools. Yet the Court's decisions, prior to
and at the time of
Lemon I, shied away from this sweeping
application of the Establishment Clause, favoring instead
particularized analysis of state involvement in religious schools,
with the analysis based upon the facts and circumstances before us.
Tilton v. Richardson, 403 U. S. 672
(1971);
Walz v. Tax Comm'n, 397 U.
S. 664,
397 U. S. 669
(1970);
Board of Education v. Allen, 392 U.
S. 236,
392 U. S.
242-243 (1968);
Everson v. Board of Education,
330 U. S. 1,
330 U. S. 14
(1947). There is, then, no basis for the dissent's suggestion that
the Court has been "unequivocal" in proscribing all state
assistance to religious schools.
[
Footnote 8]
This is not to say, of course, that the flexible range of
federal injunctive power should be curtailed so as to permit State
office to proceed with their business regardless of serious
constitutional questions concerning state legislation. Indeed, a
significant purpose of these tools is to preserve right of all
parties and to minimize unnecessary harm during the often
protracted pendency of constitutional litigation.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE STEWART concur, dissenting.
There is as much a violation of the Establishment Clause of the
First Amendment whether the payment from public funds to sectarian
schools involves last year, the current year, or next year. Madison
in his Remonstrance stated:
"[T]he same authority which can force a citizen to contribute
three pence only of his property for the support of any one
establishment, may force him to conform to any other establishment.
. . . [
Footnote 2/1]"
Whether the grant is for teaching last year or at the present
time, taxpayers are forced to contribute to sectarian schools a
part of their tax dollars.
The ban on that practice is not new.
Lemon I,
403 U. S. 602, did
not announce a change in the law. We had announced over and over
again that the use of taxpayers' money to support parochial schools
violates the First Amendment, made applicable to the States by
virtue of the Fourteenth.
We said in unequivocal words in
Everson v. Board of
Education, 330 U. S. 1,
330 U. S. 16:
"No tax in any amount,
Page 411 U. S. 210
large or small, can be levied to support any religious
activities or institutions, whatever they may be called, or
whatever form they may adopt to teach or practice religion."
We reiterated the same idea in
Zorach v. Clauson,
343 U. S. 306,
343 U. S. 314,
in
McGowan v. Maryland, 366 U. S. 420,
366 U. S. 443,
and in
Torcaso v. Watkins, 367 U.
S. 488,
367 U. S. 493.
We repeated the same idea in
McCollum v. Board of
Education, 333 U. S. 203,
333 U. S. 210,
and added that a State's tax supported public schools could not be
used "for the dissemination of religious doctrines," nor could a
State provide the church "pupils for their religious classes
through use of the State's compulsory public school machinery."
Id. at
333 U. S.
212.
MR. JUSTICE BRENNAN, in his separate opinion in
Lemon
I, put the matter succinctly when he said,
"[F]or more than a century, the consensus, enforced by
legislatures and courts with substantial consistency, has been that
public subsidy of sectarian schools constitutes an impermissible
involvement of secular with religious institutions."
403 U.S. 642,
403 U. S.
648-649.
So there was clear warning that those who proposed such
subsidies were treading on unconstitutional ground. They can tender
no considerations of equity that should allow them to profit from
their unconstitutional venture.
The issues presented in this type of case are often caught up in
political strategies, designed to turn judicial or legislative
minorities into majorities. Lawyers planning trial strategies are
familiar with those tactics. But those who use them and lose have
no equities that make constitutional what has long been declared to
be unconstitutional. From the days of Madison, the issue of subsidy
has never been a question of the amount of the subsidy, but rather
a principle of no subsidy at all.
Page 411 U. S. 211
The problem of retroactivity involved in criminal cases is
therefore inapplicable. There, the question is whether the newly
announced rule goes to the fairness of the trial that had been
completed under the old rule.
See Johnson v. New Jersey,
384 U. S. 719,
384 U. S.
726-729. Here, there is no new rule supplanting an old
rule. The rule of no subsidy has been the dominant one since the
days of Madison. We deal with the normal situation that governs
judicial decisions. Normally, they determine legal right and
obligations with respect to events that have already transpired. By
definition, courts decide disputes that have already arisen. A
losing litigant has no equity in the fact that he "relied" on
advice that turned out to be unreliable or wrong. [
Footnote 2/2] A decision overruling a prior
authority may at times deny a litigant due process if applied
retroactively.
See Brinkerhoff-Faris Trust & Savings Co. v.
Hill, 281 U. S. 673.
Only a compelling circumstance has been held to limit a judicial
ruling to prospective applications. The disruptive effect in
criminal law enforcement is one example.
Stovall v. Denno,
388 U. S. 293,
388 U. S. 300.
Likewise, a ruling on the legality of municipal bonds has been
given only prospective application where many prior bonds had been
issued in good faith on a contrary assumption.
City of Phoenix
v. Kolodziejski, 399 U. S. 204,
399 U. S.
213-215.
Retroactivity of the decision in
Lemon I goes to the
very core of the integrity of the judicial process. Constitutional
principles do not ride on the effervescent arguments advanced by
those seeking to obtain unconstitutional subsidies. The
happenstance of litigation is no criterion for dispensing these
unconstitutional subsidies. No matter the words used for the
apologia, the subsidy today given to sectarian schools out of
taxpayers' monies exceeds by far the "three pence" which Madison
condemned in his Remonstrance.
I would reverse the judgment below and adhere to the
constitutional principle announced in
Lemon I.
[
Footnote 2/1]
Memorial and Remonstrance Against Religious Assessments, 2
Writings of James Madison 183, 186 (G. Hunt ed.1901). The
Remonstrance is reprinted in
Everson v. Board of
Education, 330 U. S. 1,
330 U. S. 63
(Rutledge, J., dissenting), and in
Walz v. Tax Comm'n,
397 U. S. 664,
397 U. S. 719
(DOUGLAS, J., dissenting).
[
Footnote 2/2]
The rule of
Bruton v. United States, 391 U.
S. 123, which rejected
Delli Paoli v. United
States, 352 U. S. 232, was
given retrospective effect. We said,
"The element of reliance is not persuasive, for
Delli
Paoli has been under attack from its inception, and many
courts have, in fact, rejected it."
Roberts v. Russell, 392 U. S. 293,
392 U. S.
295.