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hospital case, either overruled or in some
manner changed the ruling in the Horace
Mann case, would it not be true therefore
that it is the later case — Twtitt v. Tawes —
which really interprets the First Amend-
ment of the United States as it is applied
by the Court of Appeals today?
DELEGATE J. CLARK (presiding):
Delegate Kiefer.
DELEGATE KIEFER: Delegate Gallag-
her, you are a smarter constitutional law-
yer than I am. All I can tell you is this:
There are very seldom exact cases that
duplicate each other. Each of these cases
take care of a particular and peculiar set
of facts, and I would assume that in arriv-
ing at any particular decision that would
face the court on any particular set of
facts it would take into consideration all
of the previous decisions. That is the best
I can do for you.
If you want me to try to guess what the
Court of Appeals is going to do or the
Supreme Court is going to do, I can do
lots of things but that is not one of them.
DELEGATE J. CLARK (presiding):
Delegate Gallagher.
DELEGATE GALLAGHER: I am not
trying to fence with you. I am simply ask-
ing if an earlier case is overruled in a
later case by the Supreme Court, must you
not take into consideration the state of the
law after the later case?
I think we both agree the answer is yes.
DELEGATE J. CLARK (presiding):
Delegate Kiefer.
DELEGATE KIEFER: Except where I
part with you slightly is that I do not be-
lieve the latter case has the same set of
facts.
DELEGATE J. CLARK (presiding):
Delegate Gallagher.
DELEGATE GALLAGHER: I have one
further question, and that is this.
The Horace Mann case, as you and your
Committee know so well because you studied
it, involves four institutions of higher edu-
cation, and the Maryland Court of Appeals
by a four to three decision decided that three
of those four institutions were so sectarian
that to grant money to them on the part
of the State would be a violation of the
establishment of religion clause of the
First Amendment of the Federal Constitu-
tion.
It also decided that one of those institu-
tions, Hood College, although religious con-
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nected, was not so sectarian in nature as
to violate the First Amendment when the
State made a grant.
Would it be fair to say, therefore, that
the Court of Appeals in the Horace Mann
case made specific determinations with
respect to four institutions of higher learn-
ing and said in fact, and literally, that each
educational institution would have to be
judged individually by an examination of
that educational institution.
DELEGATE J. CLARK (presiding):
Delegate Kiefer.
DELEGATE KIEFER: That is correct,
and it also set up specific tests against
which it viewed each of the four institu-
tions.
DELEGATE J. CLARK (presiding):
Are there any further questions on this
section ?
Delegate Hardwicke.
DELEGATE HARDWICKE: Chairman
Kiefer, did the Committee not hear testi-
mony to the effect that the Court of Appeals
of Maryland would be free to interpret this
language differently from the interpreta-
tions of the U. S. Supreme 'Court so long
as its interpretations were more restrictive ?
DELEGATE J. CLARK (presiding):
Delegate Kiefer.
DELEGATE KIEFER: Yes, this is of
course true.
DELEGATE J. CLARK (presiding):
Delegate Hardwicke.
DELEGATE HARDWICKE: So would it
not be a fair conclusion to say that the
intention of the Committee in including
this language was to permit flexibility and
growth in the law and judicial interpreta-
tions, but not tie it down in any way to any
present state of the law?
DELEGATE J. CLARK (presiding):
Delegate Kiefer.
DELEGATE KIEFER: This is correct,
plus the additional fact that, as you all
well know, we are talking about judicial
interpretation. There is no reason why the
legislature cannot, for particular and pecul-
iar circumstances, set up whatever kind of
more restrictive law it may want.
We felt in this Committee, however, we
wanted to state the basic concept of separa-
tion of church and state, and this is what
we did in what we thought was the most
effective method possible without putting
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