The Wall Can Be Too High

Ever since the U.S. Supreme Court's decision in Illinois' famed McCollum case (TIME, Sept. 24, 1945), states and cities with "released-time" programs have been faced with a worrisome question: Can religious instruction for public-school children ever be legal? Last week the New York state court of appeals gave an answer: yes.

The decision grew out of a suit brought by two Brooklyn parents who charged that New York City's released-time program (in operation since 1941) was a clear violation of the principle of separation of church & state. In a 6-to-1 decision, New York's highest court declared that it was not. The program in New York, said the court, was nothing like that of Champaign, Ill., which the Supreme Court had declared unconstitutional in the McCollum case. In Champaign, religious instruction took place on school property, thus got some support from public funds. In New York City, this is not so; the children are merely dismissed an hour early, one day a week, if the parents want them to have religious teaching elsewhere.

"It is manifest," said the court, "that the McCollum case is not a holding that all released-time programs are per se unconstitutional . . . The Constitution does not demand that every friendly gesture between church and state shall be discountenanced. The so-called 'wall of separation' may be built so high and so broad as to impair both state and church ... It must also be remembered that the First Amendment not only forbids laws 'respecting an establishment of religion,' but also laws 'prohibiting the free exercise thereof.' We must not destroy one in an effort to preserve the other."

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