give financial aid, directly or indirectly,
to parochial education. "Anyone sug-
gesting that the answer, as a matter of
constitutional law, is clear one way
or the other is either deluding or
deluded."168
However, the path to follow in re-
considering the pertinent provisions of
Maryland's century-old Constitution is
more clear-cut, if not obvious.
Article 36 of the Declaration of
Rights has in large measure been de-
clared unconstitutional by Torcaso and
Schowgurow, supra. Torcaso has ex-
pressly voided Article 37. Article 38 is
self-cancelling, in that every post- 1948
transfer of property to a religious organ-
ization or representative is valid. Article
39, while never specifically challenged
in the courts, is not likely to withstand
the wind of Torcaso so long as it refers
to a Divine Being.
Thus, the only four provisions in the
Maryland Declaration of Rights which
directly relate to church and state, are
either inoperable (Article 38) or viola-
tive of the federal Constitution. Since
problems surrounding freedom of re-
ligion are handled by the Supreme
Court's interpretations of the First
Amendment, which in turn are appli-
cable to the states by way of the Four-
teenth Amendment, a new Maryland
constitution cannot attempt to limit the
scope of the Establishment or Free
Exercise Clauses. To do so would be
only to anticipate the Supreme Court,
and success in that venture, especially in
view of the still developing clarification
of policy by the Court, is highly
improbable.
On the other end of the spectrum, a
168 P. kurland., religion and the law
111 (1961).
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broadening or more absolute statement
of religious liberty would not offend the
First Amendment. It is difficult, how-
ever, to formulate a more concise and
unfettered declaration than that found
in the United States Constitution. The
National Municipal League after ex-
haustive scholarly research and dialogue,
emerged with identical language — "no
law shall be enacted respecting an
establishment of religion, or prohibiting
the free exercise thereof."169 Although
all states guarantee the freedom of re-
ligion,170 few constitutions protect citi-
zens with such simplicity.171 The
added advantage of using the First
Amendment language, of course, is that
the interpretive policy rules handed
down by the Supreme Court will auto-
matically apply to the State — no further
analysis of variant state constitutional
provisions on religious liberty would be
necessary.
In the end, adoption of First Amend-
ment language would be an appropri-
ate reflection of the valuable contribu-
tions Maryland has made to the Law of
the Land, the effect her past struggles
have had upon the declaration of re-
ligious freedom. Because, for that basic
liberty America must remain largely
indebted to Maryland, where "at no
time in her history did the 'temperament
which persecutes3 . . . find an abiding
place."172
1(i9 national municipal league, model
state constitution §1.01 (6th ed. 1963).
170 Id. at 29.
171 national municipal league, salient
issues of constitutional revision 12
(J. Wheeler ed. 1961). See generally, Paulsen,
State Constitutions, State Courts and First
Amendment Freedoms, 4 vand. L. rev.
620,635-42 (1951).
172 C. hall, the lords baltimore and
the maryland palatinate 98 (1902).
39
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