LOCATION: Frontiero's Residence
DOCKET NO.: 72-459
DECIDED BY: Burger Court (1972-1975)
CITATION: 413 US 825 (1973)
ARGUED: Apr 16, 1973
DECIDED: Jun 25, 1973
Henry T. Reath - for appellant Henry E
Israel Packel - for appellant Grace Sloan, etc
Theodore R. Mann - for appellees
William B. Ball - for appellants Jose Diaz and others
William Bentley Ball -
Facts of the case
Media for Sloan v. Lemon
Audio Transcription for Oral Argument - April 16, 1973 in Sloan v. Lemon
Warren E. Burger:
Next in 72-459 and 620, Solan against Lemon and Crouter against Lemon.
Mr. Attorney General you may proceed whenever you are ready.
Mr. Chief Justice and may it please the Court.
I appear to make one point and I think it's controlling point and that is, that the dominant purpose and the primary effect of the Pennsylvania Act is economic and not religious.
Of course, I realize that the case does have sociological and religious collateral effects, but I say, we essentially, we are dealing here with an economic measure by the commonwealth.
What is the economic situation that confronted Pennsylvania here?
There were several factors; first of all and I, of course, talking about education.
First of all, in our schools throughout the commonwealth and in particularly in Pennsylvania there was a serious financial situation.
I think this Court can take judicial notice of the two serious strikes that we had in the city of Philadelphia because of financial problems.
Secondly, there was a factor that 20% of the students in the Commonwealth of Pennsylvania were going to non-public schools.
Thirdly, the average annual cost for a student in a public school was at $980 per year.
Next item was the fact that many of the non public schools were threatening, there was a present danger that they were going to shift, give up their schools and the students would be all be, a great many of them would be shifted to the public school.
And the fourth significant factor is the obvious one, true in so many other states, Pennsylvania under its constitution had the duty to make provision for the education of all that is young.
Now, what to do?
How to cope with this economic situation?
The legislature came to the conclusion that the thing to be done was to offer to parents of non-public students $75 if they were in the elementary school or $150 if they were in a secondary school.
In effect, Pennsylvania was saying to these parents, look folks, if we have your students here, not only would we have a tremendous capital program which would take millions and millions of dollars to build enough schools, but if you continue to send your children to the school where you have been sending them, if you don't switch them, we would be saving at the least $980 and to induce you to keep doing that because of the economic plate in which we all are, we will pay you the $150 or $75 per student.
It was purely this economic measure, it's spelled out in legislation, the General Assembly made it crystal clear that this was an economic motive in which they were trying to cope with this very, very serious situation before them.
Really, I think in the analysis, you have got to consider this very high function of this Court to say that legislation of a state is unconstitutional or to be asserted only in the case where there are legitimate ends being ought to be achieved.
I can't help, but make he analogy, it may be a little far-fetched, I am thinking of the 20s and the earlier period when we had the situation in dealing with congressional power, where the court would say, well, you may have the power, but what you are trying to do with this statute, it's collateral effects are something different.
I am thinking for example, the Pierce and Labor (ph) case or the cases where Congress purported, attempted to regulate interstate commerce and this Court use to say, oh well, if what you are trying to accomplish, if you are trying to regulate manufacturing or if it has the effect of regulating manufacture, we don't care even though you are asserting a power over interstate commerce.
Similarly I say here, we shouldn't look to the collateral effect where the legislature is clearly asserting a legitimate end.
Here in the Pennsylvania legislature said, we are trying to save money so that the schools as we are trying, one will be conducted properly, sure it has a collateral effect.
It gives some benefit, but I say, look at the main object that what the legislation is trying to do and for that reason this legislation should be held constitutional.
Warren E. Burger:
Thank you Mr. Attorney General.
William Bentley Ball:
Mr. Chief Justice, may it please the Court.
The Commonwealth, following Lemon versus Kurtzman, carefully structured the Act which you are considering today, structured it to thrive fully and faithfully to meet every standard which this Court had expressed in its various decisions under the Establishment Clause.
Why, in a effort to solve a two-fold problem which simply won't go away.
The first part of that problem having been described by the Attorney General just now; a massive public problem which involves the total fiscal, the economic and educational crisis that the Commonwealth today does face.