Three Pence & Parochial Schools

Among the Founding Fathers, James Madison was the man who cared most about building an impregnable wall between church and state in the First Amendment. As he observed, "the same authority which can force a citizen to contribute three pence only of his property for the support of any one [religious] establishment may force him to conform to any other establishment in all cases whatsoever."

In federal court last year, New York City Housewife Florence Flast and six other taxpayers argued that far more than three pence of their tax money was involved in a federal aid-to-education program that paid for tutoring in parochial schools. But their case was dismissed for lack of "standing." The gist of "standing," the Supreme Court once explained, is whether a plaintiff's personal stake in the suit is enough "to assure sharp prosecution of the issues." And a taxpayer's stake has been held too small to support a suit contending that a federal expenditure exceeded Congress' general powers.

True enough, said the Supreme Court last week, but Mrs. Flast was not arguing about general powers. What bothered her was the specific First Amendment prohibition against an "establishment of religion." By an 8-to-1 vote, the court held that Madison's three pence test was more than satisfied; the New Yorkers, it said, were entitled to try to show that Congress really had breached the church-state wall.

The court's new test for "standing" requires a taxpayer to contend that the statute under attack "exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power." Which constitutional limitations did the court have in mind? The majority did not say. But Justice Fortas, in a concurring opinion, argued strongly that only the establishment-of-religion clause will do.

Chief Justice Warren, who wrote the majority opinion, emphasized that the ruling had nothing to do with the merits of the contentions about federal aid to parochial schools. That problem will have to be dealt with by the lower court, where the argument started.

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