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November 19, 1974

Shirley WILDER et al., Plaintiffs,
Jule SUGARMAN et al., Defendants

Per Curiam

On June 14, 1973, plaintiffs commenced this action seeking a declaration that the New York constitutional and statutory provisions for child placement violate the First, Eighth and Fourteenth Amendments on the grounds that they discriminate against children who are black and Protestant. The plaintiffs are six named children for whom guardians ad litem have been appointed.

The complaint names as defendants, individually and in their respective capacities, the heads of the New York City Human Resources Administration, Special Services for Children, Bureau of Child Welfare and its Division of Inter-Agency Relationships, as well as various New York State officials, including the Administrative Judge of the Family Court, the Commission of the New York State Department of Social Services and the Executive Director of the New York State Board of Social Welfare. In addition to these public officials, the administrators and executive directors of all 77 agencies providing child care in New York City have been named.

 In addition to seeking a declaration that the New York constitutional and statutory provisions are violative of the Constitution and an injunction against their continued enforcement, plaintiffs claim consequential and punitive damages against the public officials and the heads of the child-care agencies. *fn1"

 On September 21, 1973, the assigned judge granted plaintiffs' motion to convene a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2283. On June 4, 1974, the statutory court stated its desire to take under advisement, prior to the completion of discovery, plaintiffs' allegations that the constitutional and statutory provisions of state-wide application facially violate the Establishment Clause of the First Amendment. On June 7, 1974, a pre-trial order was entered, defining the issue before the court as follows:

"[whether] New York Social Services Law § 373(1), (2) and (5), New York State Constitution Article 6, § 32, Family Court Act § 116(a), New York Social Services Law § 153 and New York Constitution Article 7, § 8(2) violate the Establishment Clause of the First Amendment to the Constitution of the United States on their face. . . ."

 and further directing that, for purposes of this portion of the case, the only facts to be considered shall be those admitted by all the parties in their answers to the complaint and those facts which are properly the subject of judicial notice.

 Thus, the present proceeding involves only the facial constitutionality of the New York State constitutional and statutory provisions regarding religious matching for publicly-funded foster care of children. It does not concern any aspect of the application of these provisions in specific instances.


 An analysis must begin with a delineation of the general statutory structure of the child placement system of New York. *fn2" The system has its modern genesis in Article VI, § 32 of the New York Constitution, which provides that a child "shall be committed or remanded or placed, when practicable, in an institution or agency governed by persons, or in the custody of a person, of the same religious persuasion as the child." This constitutional provision is implemented by § 373 of the New York Social Services Law, McKinney's Consol. Laws, c. 55, which states in pertinent part:

"1. Whenever a child is committed to any agency, association, corporation, institution or society, other than an institution supported and controlled by the state or a subdivision thereof, such commitment shall be made, when practicable, to an authorized agency under the control of persons of the same religious faith as that of the child."

 Amendments to § 373 of the New York Social Services Law and § 116 of the New York Family Court Act supplement the religious matching provision by specifying that the provisions of those sections "shall, so far as consistent with the best interests of the child, and where practicable, be applied so as to give effect to the religious wishes of the [parents]." New York Social Services Law § 373(7); New York Family Court Act § 116(g).

 With respect to public payment of the expenses of caring for the children, Article 7, § 8(2) of the New York Constitution asserts that nothing shall prevent the Legislature from providing, inter alia, for:

". . . the aid, care and support of neglected and dependent children and of the needy sick, through agencies and institutions authorized by the state board of social welfare or other state department having the power of inspection thereof, by payments made on a per capita basis directly or through the subdivisions of the state . . . ."

 This is implemented by § 153 of the Social Services Law allowing for reimbursements by the State to social services districts, cities, and towns for the administration of public assistance programs.

 At least theoretically, then, the issues now before the court present a clash between the Establishment and Free Exercise Clauses of the First Amendment. *fn3" The inevitability of the conflict resulting from expression of these competing concepts in absolute terms has been the subject of opinions of the Supreme Court. E.g., Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Tilton v. Richardson, 403 U.S. 672, 677, 91 S. Ct. 2091, 29 L. Ed. 2d 790 (1971); Walz v. Tax Commission, 397 U.S. 664, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970); Abington School District v. Schempp, 374 U.S. 203, 217-222, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963); Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679, 96 L. Ed. 954 (1952).

 We are guided in our present task by an admonition of the Supreme Court in Walz v. Tax Commission. Mr. Chief Justice Burger, in his opinion for the Court, there stated:

"The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference." Walz, supra 397 U.S. at 669, 90 S. Ct. at 1411.

 Nevertheless, ascertainment of the proper "wall" between Church and State as envisioned by Thomas Jefferson in the famous "Virginia Bill for Religious Liberty" *fn4" in a given context is, as always, fraught with difficulties.


 The history of the child welfare system in New York is necessarily intertwined with the religious history and cultural development of the State. Acknowledging that history and long use do not sanction practices inherently unconstitutional, we cannot ignore New York's historical commitment to relatively sophisticated child welfare and placement practices since early colonial days. See, Walz, supra, 397 U.S. at 678, 90 S. Ct. 1409. As a Dutch colony, New York provided for poor relief through ecclesiastical bodies, with the local civil authority assuming a role only where there was no religious body to do so. *fn5" At the time of the American Revolution, New York assumed direct administration of relief. Almshouses were built ...

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