contribute, unless on contract, to main-
tain, any place of worship, or any min-
istry . . ."). Cited were a large number
of cases to the effect that "grants to
educational institutions at a level where
the state has not attempted to provide
universal educational facilities for its
citizens have never, in Maryland, been
held to be impermissible under Article
36, even though the institutions may
be under the control of a religious
order."149
In a vigorous dissent, Judge Ham-
mond and two other' members of the
Court of Appeals argued that the grants
of state aid served a sufficiently secular
purpose to withdraw them from First
Amendment prohibition. Both sides
have appealed the majority decision to
the Supreme Court. It would be diffi-
cult to predict with any degree of
certainty that Court's decision.150
SOME CONCLUSIONS
The question most directly involved
in interpreting the Establishment Clause
of the First Amendment is whether the
Founding Fathers intended a complete
separation of church and state or would,
rather, permit government participation
if such were non-discriminatory. A
comprehensive analysis will not be at-
tempted here but, on the basis of the
historical sketch offered above, some
arguments will be suggested.151
"It is revealing to note that in every
149 Id. at 76.
150 For other recent Maryland cases touch-
ing upon the freedom of religion, see Levitsky
v. Levitsky, 231 Md. 388, 190 A.2d 621
(1963); and Craig v. State, 220 Md. 590,
155 A.2d 684 (1959).
151 For more complete treatments, see
Kempner, The Supreme Court and the Es-
tablishment and Free Exercise of Religion
87-99 (1958), and A. stokes & L. pfeffer,
church and state in the united states
(1964).
36
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state constitution in force between 1776
and 1789 where 'establishment' was
mentioned, it was equated or used in
conjunction with 'preference.' "152 A
logical inference might be drawn that
Congress would advocate non-preferen-
tial treatment of religion. Or perhaps
the major concern revolved around the
protection of "free exercise" rather than
complete denial of government aid.153
Undoubtedly, some of the Founders, in
particular Madison and Thomas Jeffer-
son, favored full severance of church
and state.154 However, that feeling
was hardly unanimous. Charles Carroll
of Carrollton had voted in favor of a
state tax to support religion.155 Daniel
Carroll had endorsed a 1784 act of the
Maryland General Assembly, "earnestly
desiring to promote every pious and
charitable design for the relief and
assistance of the widowless and father-
less, and especially those of the respect-
able and useful body of clergy of all
denominations."156 An 1811 issue of
the Baltimore Gazette asked :
"What was the meaning of the
Constitution in providing against a
religious establishment? Does any
man but Mr. Madison imagine it
152 C. antieau, A. downey & E. roberts,
freedom from federal establishment
132 (1963).
153 Id. at 137-38.
154 See W. torpey, judicial doctrines of
religious rights in america 13ff. (1948),
and De Marr, The Regulation of Religious
Corporations in the State of Maryland 72
(Md. Hist. Soc.).
Madison himself indicated that whenever
it was necessary to go beyond the words of
the Constitution to ascertain its meaning, the
Congress and courts should look for it in the
State Conventions, which accepted and rati-
fied the Constitution. antieau, downey &
roberts, supra note 152 at ix.
155 werline, supra note 111 at 151.
156 M. geiger, daniel carroll, framer
of the constitution 83 (1943).
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