Religion
      An Overview
            Scholarly Commentary
            Court Tests Applied to Legislation Affecting Religion
            Government Neutrality in Religious Disputes
      Establishment of Religion
            Financial Assistance to Church-Related Institutions
            Governmental Encouragement of Religion in Public Schools: Released Time
            Governmental Encouragement of Religion in Public Schools: Prayers and
            Bible Reading
            Governmental Encouragement of Religion in Public Schools: Curriculum
            Restriction
            Access of Religious Groups to School Property
            Tax Exemptions of Religious Property
            Exemption of Religious Organizations from Generally Applicable Laws
            Sunday Closing Laws
      Conscientious Objection
            Regulation of Religious Solicitation
            Religion in Governmental Observances
            Miscellaneous
      Free Exercise of Religion
            The Belief-Conduct Distinction
            The Mormon Cases
            The Jehovah's Witnesses Cases
            Free Exercise Exemption from General Governmental Requirements
            Religious Test Oaths
            Religious Disqualification
      Freedom of Expression -- Speech and Press
      Adoption and Common Law Background
      Freedom of Expression: The Philosophical Basis
      Freedom of Expression: Is There a Difference Between Speech and Press
      The Doctrine of Prior Restraint
            Injunctions and the Press in Fair Trial Cases
            Obscenity and Prior Restraint
      Subsequent Punishment: Clear and Present Danger and Other Tests
            Clear and Present Danger
            The Adoption of Clear and Present Danger
            Contempt of Court and Clear and Present Danger
            Clear and Present Danger Revised: Dennis
            Balancing
            The ``Absolutist'' View of the First Amendment, with a Note on ``Preferred
            Position''
            Of Other Tests and Standards: Vagueness, Overbreadth, Least Restrictive
            Means, and Others
            Is There a Present Test?
      Freedom of Belief
            Flag Salute Cases
            Imposition of Consequences for Holding Certain Beliefs
      Right of Association
            Political Association
            Conflict Between Organization and Members
      Maintenance of National Security and the First Amendment
            Punishment of Advocacy
      Compelled Registration of Communist Party
            Punishment for Membership in an Organization Which Engages in
            Proscribed Advocacy
            Disabilities Attaching to Membership in Proscribed Organizations
            Employment Restrictions and Loyalty Oaths
            Legislative Investigations and the First Amendment
            Interference With War Effort
            Suppression of Communist Propaganda in the Mails
            Exclusion of Certain Aliens as a First Amendment Problem
      Particular Government Regulations Which Restrict Expression
            Government as Employer: Political Activities
            Government as Employer: Free Expression Generally
            Government as Educator
            Government as Regulator of the Electoral Process: Elections
            Government as Regulator of the Electoral Process: Lobbying
            Government as Regulator of Labor Relations
            Government as Investigator: Journalist's Privilege
            Government and the Conduct of Trials
            Government as Administrator of Prisons
            Government and Power of the Purse
      Governmental Regulation of Communications Industries
            Commercial Speech
            Taxation
            Labor Relations
            Antitrust Laws
            Radio and Television
            Governmentally Compelled Right of Reply to Newspapers
      Government Restraint of Content of Expression
            Seditious Speech and Seditious Libel
            Fighting Words and Other Threats to the Peace
            Group Libel, Hate Speech
            Defamation
            Invasion of Privacy
            Emotional Distress Tort Actions
            ``Right of Publicity'' Tort Actions
            Publication of Legally Confidential Information
            Obscenity
            Child Pornography
            Non-obscene But Sexually Explicit and Indecent Expression
      Speech Plus -- The Constitutional Law of Leafleting, Picketing, and
      Demonstrating
            The Public Forum
            Quasi-Public Places
            Picketing and Boycotts by Labor Unions
            Public Issue Picketing and Parading
            Leafleting, Handbilling, and the Like
      Sound Trucks, Noise
            Door-to-Door Solicitation
            The Problem of ``Symbolic Speech''
      Rights of Assembly and Petition
      Background and Development
            The Cruikshank Case
            The Hague Case

Madison's original proposal for a bill of rights provision concerning religion read: ``The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed.''\1\ The language was altered in the House to read: ``Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.''\2\ In the Senate, the section adopted read: ``Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, . . .''\3\ It was in the conference committee of the two bodies, chaired by Madison, that the present language was written with its some what more indefinite ``respecting'' phraseology.\4\ Debate in Congress lends little assistance in interpreting the religion clauses; Madison's position, as well as that of Jefferson who influenced him, is fairly clear,\5\ but the intent, insofar as there was one, of the others in Congress who voted for the language and those in the States who voted to ratify is subject to speculation.

NOTES:

\2\The committee appointed to consider Madison's proposals, and on which Madison served, with Vining as chairman, had rewritten the religion section to read: ``No religion shall be established by law, nor shall the equal rights of conscience be infringed.'' After some debate during which Madison suggested that the word ``national'' might be inserted before the word ``religion'' as ``point[ing] the amendment directly to the object it was intended to prevent,'' the House adopted a substitute reading: ``Congress shall make no laws touching religion, or infringing the rights of conscience.'' 1 Annals of Congress 729-31 (August 15, 1789). On August 20, on motion of Fisher Ames, the language of the clause as quoted in the text was adopted. Id. at 766. According to Madison's biographer, ``[t]here can be little doubt that this was written by Madison.'' I. Brant, James Madison--Father of the Constitution 1787-1800 at 271 (1950).

\3\This text, taken from the Senate Journal of September 9, 1789, appears in 2 B. Schwartz (ed.), The Bill of Rights: A Documentary History 1153 (1971). It was at this point that the religion clauses were joined with the freedom of expression clauses.

\4\1 Annals of Congress 913 (September 24, 1789). The Senate concurred the same day. See I. Brant, James Madison--Father of the Constitution 1787-1800, 271-72 (1950).

\5\During House debate, Madison told his fellow Members that ``he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any Manner contrary to their conscience.'' 1 Annals of Congress 730 (August 15, 1789). That his conception of ``establishment'' was quite broad is revealed in his veto as President in 1811 of a bill which in granting land reserved a parcel for a Baptist Church in Salem, Mississippi; the action, explained President Madison, ``comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that `Congress shall make no law respecting a religious establishment.''' 8 The Writings of James Madison (G. Hunt. ed.) 132-33 (1904). Madison's views were no doubt influenced by the fight in the Virginia legislature in 1784-1785 in which he successfully led the opposition to a tax to support teachers of religion in Virginia and in the course of which he drafted his ``Memorial and Remonstrance against Religious Assessments'' setting forth his thoughts. Id. at 183-91; I. Brant, James Madison--The Nationalist 1780-1787, 343-55 (1948). Acting on the momentum of this effort, Madison secured passage of Jefferson's ``Bill for Religious Liberty''. Id. at 354; D. Malone, Jefferson the Virginian 274-280 (1948). The theme of the writings of both was that it was wrong to offer public support of any religion in particular or of religion in general.

Scholarly Commentary. -- The explication of the religion clauses by the scholars has followed a restrained sense of their meaning. Story, who thought that ``the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice,''\6\ looked upon the prohibition simply as an exclusion from the Federal Government of all power to act upon the subject. ``The situation . . . of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states, episcopalians constituted the predominant sect; in others presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.''\7\

NOTES:

\7\Id. at 1873.

``Probably,'' Story also wrote, ``at the time of the adoption of the constitution and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.''\8\ The object, then, of the religion clauses in this view was not to prevent general governmental encouragement of religion, of Christianity, but to prevent religious persecution and to prevent a national establishment.\9\

NOTES:

\9\For a late expounding of this view, see T. Cooley, General Principles of Constitutional Law in the United States 224-25 (3d ed. 1898).

This interpretation has long since been abandoned by the Court, beginning, at least, with Everson v. Board of Education,\10\ in which the Court, without dissent on this point, declared that the Establishment Clause forbids not only practices that ``aid one religion'' or ``prefer one religion over another,'' but as well those that ``aid all religions.'' Recently, in reliance on published scholarly research and original sources, Court dissenters have recurred to the argument that what the religion clauses, principally the Establishment Clause, prevent is ``preferential'' governmental promotion of some religions, allowing general governmental promotion of all religion in general.\11\ The Court has not responded, though Justice Souter in a major concurring opinion did undertake to rebut the argument and to restate the Everson position.\12\

NOTES:

\11\Wallace v. Jaffree, 472 U.S. 38, 91 (1985) (then-Justice Rehnquist dissenting). More recently, dissenters, including now-Chief Justice Rehnquist, have appeared reconciled to a ``constitutional tradition'' in which governmental endorsement of religion is out of bounds, even if it is not correct as a matter of history. See Lee v. Weisman, 112 S. Ct. 2649, 2678, 2683-84 (1992) (Justice Scalia, joined by the Chief Justice and Justices White and Thomas, dissenting).

\12\Lee v. Weisman, 112 S. Ct. 2649, 2667 (1992) (Justice Souter, joined by Justices Stevens and O'Connor, concurring).

Court Tests Applied to Legislation Affecting Religion. -- Before considering the development of the two religion clauses by the Supreme Court, one should notice briefly the tests developed by which religion cases are adjudicated by the Court. While later cases rely on a series of rather well-defined, if difficult-to-apply, tests, the language of earlier cases ``may have [contained] too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles.''\13\ It is well to recall that ``the purpose [of the religion clauses] was to state an objective, not to write a statute.''\14\

NOTES:

\14\Id.

In 1802, President Jefferson wrote a letter to a group of Baptists in Danbury, Connecticut, in which he declared that it was the purpose of the First Amendment to build ``a wall of separation between Church and State.''\15\ In Reynolds v. United States,\16\ Chief Justice Waite for the Court characterized the phrase as ``almost an authoritative declaration of the scope and effect of the amendment.'' In its first encounters with religion-based challenges to state programs, the Court looked to Jefferson's metaphor for substantial guidance.\17\ But a metaphor may obscure as well as illuminate, and the Court soon began to emphasize neutrality and voluntarism as the standard of restraint on governmental action.\18\

The concept of neutrality itself is ``a coat of many colors,''\19\ and three standards that could be stated in objective fashion emerged as tests of Establishment Clause validity. The first two standards were part of the same formulation. ``The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.''\20\ The third test is whether the governmental program results in ``an excessive government entanglement with religion. The test is inescapably one of degree . . . [T]he questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement.''\21\ In 1971 these three tests were combined and restated in Chief Justice Burger's opinion for the Court in Lemon v. Kurtzman,\22\ and are frequently referred to by reference to that case name.

NOTES:

\16\98 U.S. 145, 164 (1879).

\17\Everson v. Board of Education, 330 U.S. 1, 16 (1947); Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 211, 212 (1948); cf. Zorach v. Clauson, 343 U.S. 306, 317 (1952) (Justice Black dissenting). In Lemon v. Kurtzman, 403 U.S. 602, 614 (1971), Chief Justice Burger remarked that ``the line of separation, far from being a `wall,' is a blurred, indistinct and variable barrier depending on all the circumstances of a particular relationship.'' Similar observations were repeated by the Chief Justice in his opinion for the Court in Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (the metaphor is not ``wholly accurate''; the Constitution does not ``require complete separation of church and state [but] affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any'').

\18\Zorach v. Clauson, 343 U.S. 306, 314 (1952); Engel v. Vitale, 370 U.S. 421 (1962); Sherbert v. Verner, 374 U.S. 398 (1963); Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Justice Goldberg concurring); Walz v. Tax Comm'n, 397 U.S. 664, 694-97 (1970) (Justice Harlan concurring). In the opinion of the Court in the latter case, Chief Justice Burger wrote: ``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.'' Id. at 669.

\19\Board of Education v. Allen, 392 U.S. 236, 249 (1968) (Justice Harlan concurring).

\20\Abington School District v. Schempp, 374 U.S. 203, 222 (1963).

\21\Walz v. Tax Comm'n, 397 U.S. 664, 674-75 (1970).

\22\403 U.S. 602, 612-13 (1971).

Although at one time accepted in principle by all of the Justices,\23\ the tests have sometimes been difficult to apply,\24\ have recently come under direct attack by some Justices,\25\ and in two in stances have not been applied at all by the Court.\26\ While continued application is uncertain, the Lemon tests nonetheless have served for twenty years as the standard measure of Establishment Clause validity and explain most of the Court's decisions in the area.\27\ As of the end of the Court's 1991-92 Term, there was not yet a consensus among Lemon critics as to what substitute test should be favored.\28\ Reliance on ``coercion'' for that purpose would eliminate a principal distinction between establishment cases and free exercise cases and render the Establishment Clause largely duplicative of the Free Exercise Clause.\29\

NOTES:

\24\The tests provide ``helpful signposts,'' Hunt v. McNair, 413 U.S. 734, 741 (1973), and are at best ``guidelines'' rather than a ``constitutional caliper;'' they must be used to consider ``the cumulative criteria developed over many years and applying to a wide range of governmental action.'' Inevitably, ``no `bright line' guidance is afforded.'' Tilton v. Richardson, 403 U.S. 672, 677-78 (1971). See also Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 761 & n.5, 773 n.31 (1973); Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 662 (1980), and id. at 663 (Justice Blackmun dissenting).

\25\See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636-40 (1987) (Justice Scalia, joined by Chief Justice Rehnquist, dissenting) (advocating abandonment of the ``purpose'' test); Wallace v. Jaffree, 472 U.S. 38, 108-12 (1985) (Justice Rehnquist dissenting); Aguilar v. Felton, 473 U.S. 402, 426-30 (1985) (Justice O'Connor, dissenting) (addressing difficulties in applying the entanglement prong); Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 768-69 (Justice White concurring in judgment) (objecting to entanglement test). Justice Kennedy has also acknowledged criticisms of the Lemon tests, while at the samed time finding no need to reexamine them. See, e.g., Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 655-56 (1989). At least with respect to public aid to religious schools, Justice Stevens would abandon the tests and simply adopt a ``no-aid'' position. Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671 (1980).

\26\See Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayers on the basis of historical practice); Lee v. Weisman, 112 S. Ct. 2649, 2655 (1992) (rejecting a request to reconsider Lemon because the practice of invocations at public high school graduations was invalid under established school prayer precedents). The Court has also held that the tripartite test is not applicable when law grants a denominational preference, distinguishing between religions; rather, the distinction is to be subjected to the strict scrutiny of a suspect classification. Larson v. Valente, 456 U.S. 228, 244-46 (1982).

\27\Justice Blackmun, concurring in Lee, contended that Marsh was the only one of 31 Establishment cases between 1971 and 1992 not to be decided on the basis on the Lemon tests. 112 S. Ct. at 2663, n.4.

\28\In 1990 Justice Kennedy, joined by Justice Scalia, proposed that ``neutral'' accommodations of religion should be permissible so long as they do not establish a state religion, and so long as there is no ``coercion'' to participate in religious exercises. Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226, 260-61. The two Justices parted company, however, over the permissiblity of invocations at public high school graduation ceremonies, Justice Scalia in dissent strongly criticizing Justice Kennedy's approach in the opinion of the Court for its reliance on psychological coercion. Justice Scalia would not ``expand[ ] the concept of coercion beyond acts backed by threat of penalty.'' Lee v. Weisman, 112 S. Ct. 2649, 2684 (1992). Chief Justice Rehnquist has advocated limiting application to a prohibition on establishing a national (or state) church or favoring one religious group over another. Wallace v. Jaffree, 472 U.S. 38, 98, 106 (1985) (dissenting).

\29\Abington School District v. Schempp, 374 U.S. 203, 222-23 (1963). See also Board of Education v. Allen, 392 U.S. 236, 248-49 (1968); and Tilton v. Richardson, 403 U.S. 672, 689 (1971); Lee v. Weisman, 112 S. Ct. 2649, 2673 (Justice Souter concurring) (``a literal application of the coercion test would render the Establishment Clause a virtual nullity'').

Government Neutrality in Religious Disputes. -- One value that both clauses of the religion section serve is to enforce governmental neutrality in deciding controversies arising out of religious disputes. Schism sometimes develops within churches or between a local church and the general church, resulting in secession or expulsion of one faction or of the local church. A dispute over which body is to have control of the property of the church will then often be taken into the courts. It is now established that both religion clauses prevent governmental inquiry into religious doctrine in settling such disputes, and instead require courts simply to look to the decision-making body or process in the church and to give effect to whatever decision is officially and properly made.

The first such case was Watson v. Jones,\30\ which was decided on common-law grounds in a diversity action without explicit reliance on the First Amendment. A constitutionalization of the rule was made in Kedroff v. St. Nicholas Cathedral,\31\ in which the Court held unconstitutional a state statute that recognized the autonomy and authority of those North American branches of the Russian Orthodox Church which had declared their independence from the general church. Recognizing that Watson v. Jones had been decided on nonconstitutional grounds, the Court thought nonetheless that the opinion ``radiates . . . a spirit of freedom for religious organizations, and independence from secular control or manipulation--in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.''\32\ The power of civil courts to resolve church property disputes was severely circumscribed, the Court held, because to permit resolution of doctrinal disputes in court was to jeopardize First Amendment values. What a court must do, it was held, is to look at the church rules: if the church is a hierarchical one which reposes determination of ecclesiastical issues in a certain body, the resolution by that body is determinative, while if the church is a congregational one prescribing action by a majority vote, that determination will prevail.\33\ On the other hand, a court confronted with a church property dispute could apply ``neutral principles of law, developed for use in all property disputes,'' when to do so would not require resolution of doctrinal issues.\34\ In a later case the Court elaborated on the limits of proper inquiry, holding that an argument over a matter of internal church government, the power to reorganize the dioceses of a hierarchical church in this country, was ``at the core of ecclesiastical affairs'' and a court could not interpret the church constitution to make an independent determination of the power but must defer to the interpretation of the body authorized to decide.\35\

NOTES:

\31\344 U.S. 94 (1952). Kedroff was grounded on the Free Exercise Clause. Id. at 116. But the subsequent cases used a collective ``First Amendment'' designation.

\32\Id. at 116. On remand, the state court adopted the same ruling on the merits but relied on a common-law rule rather than the statute. This too was struck down. Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960).

\33\Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 447, 450-51 (1969); Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, 396 U.S. 367 (1970). For a similar rule of neutrality in another context, see United States v. Ballard, 322 U.S. 78 (1944) (denying defendant charged with mail fraud through dissemination of purported religious literature the right to present to the jury evidence of the truthfulness of the religious views he urged).

\34\Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969); Maryland and Virginia Eldership of the Churches of God v. Church of God of Sharpsburg, 396 U.S. 367, 368 (1970). See also id. at 368-70 (Justice Brennan concurring).

\35\The Serbian Eastern Orthodox Diocese v. Dionisije Milivojevich, 426 U.S. 697, 720-25 (1976). In Gonzalez v. Archbishop, 280 U.S. 1 (1929), the Court had permitted limited inquiry into the legality of the actions taken under church rules. The Serbian Eastern Court disapproved of this inquiry with respect to concepts of ``arbitrariness,'' although it reserved decision on the ``fraud'' and ``collusion'' exceptions. 426 U.S. at 708-20.

In Jones v. Wolf,\36\ however, a divided Court, while formally adhering to these principles, appeared to depart in substance from their application. A schism had developed in a local church which was a member of a hierarchical church, and the majority voted to withdraw from the general church. The proper authority of the general church determined that the minority constituted the ``true congregation'' of the local church and awarded them authority over it. The Court approved the approach of the state court in applying neutral principles by examining the deeds to the church property, state statutes, and provisions of the general church's constitution concerning ownership and control of church property in order to determine that no language of trust in favor of the general church was contained in any of them and that the property thus belonged to the local congregation.\37\ Further, the Court held, the First Amendment did not prevent the state court from applying a presumption of majority rule to award control to the majority of the local congregation, provided that it permitted defeasance of the presumption upon a showing that the identity of the local church is to be determined by some other means as expressed perhaps in the general church charter.\38\ The dissent argued that to permit a court narrowly to view only the church documents relating to property ownership permitted the ignoring of the fact that the dispute was over ecclesiastical matters and that the general church had decided which faction of the congregation was the local church.\39\

NOTES:

\37\Id. at 602-06.

\38\Id. at 606-10. Because it was unclear whether the state court had applied such a rule and applied it properly, the Court remanded.

\39\Id. at 610.

Thus, it is unclear where the Court is on this issue. Jones v. Wolf restated the rule that it is improper to review an ecclesiastical dispute and that deference is required in those cases, but by approving a neutral principles inquiry which in effect can filter out the doctrinal issues underlying a church dispute, the Court seems to have approved at least an indirect limitation of the authority of hierarchical churches.\40\

NOTE:

``[F]or the men who wrote the Religion Clauses of the First Amendment the `establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.''\41\ However, the Court's reading of the clause has never resulted in the barring of all assistance which aids, however incidentally, a religious institution. Outside this area, the decisions generally have more rigorously prohibited what may be deemed governmental promotion of religious doctrine.

NOTE:

Financial Assistance to Church-Related Institutions. -- The Court's first opportunity to rule on the validity of governmental financial assistance to a religiously affiliated institution occurred in 1899, the assistance being a federal grant for the construction of a hospital owned and operated by a Roman Catholic order. The Court viewed the hospital as a secular institution so chartered by Congress and not as a religious or sectarian body, thus avoiding the constitutional issue.\42\ But when the right of local authorities to provide free transportation for children attending parochial schools reached the Court, it adopted very restrictive language. ``The `establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect `a wall of separation between church and State.'''\43\ But the majority sustained the provision of transportation. While recognizing that ``it approaches the verge'' of the State's constitutional power, still, Justice Black thought, the transportation was a form of ``public welfare legislation'' which was being extended ``to all its citizens without regard to their religious belief.''\44\ ``It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State.''\45\ Transportation benefited the child, just as did police protection at crossings, fire protection, connections for sewage disposal, public highways and sidewalks. Thus was born the ``child benefit'' theory.\46\

NOTES:

\43\Everson v. Board of Education, 330 U.S. 1, 15-16 (1947).

\44\Id. at 16.

\45\Id. at 17. It was in Everson that the Court, without much discussion of the matter, held that the Establishment Clause applied to the States through the Fourteenth Amendment and limited both national and state governments equally. Id. at 8, 13, 14-16. The issue is discussed at some length by Justice Brennan in Abington School Dist. v. Schempp, 374 U.S. 203, 253-58 (1963).

\46\And see Zorach v. Clauson, 343 U.S. 306, 312-13 (1952) (upholding program allowing public schools to excuse students to attend religious instruction or exercises).

The Court in 1968 relied on the ``child benefit'' theory to sustain state loans of textbooks to parochial school students.\47\ Utilizing the secular purpose and effect tests,\48\ the Court determined that the purpose of the loans was the ``furtherance of the educational opportunities available to the young,'' while the effect was hardly less secular. ``The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools. Perhaps free books make it more likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson and does not alone demonstrate an unconstitutional degree of support for a religious institution.''\49\

NOTES:

\48\Supra, p.973.

\49\392 U.S. at 243-44 (1968).

From these beginnings, the case law on the discretion of state and federal governmental assistance to sectarian elementary and secondary schools has multiplied. Through the 1970s, at least, the law became as restrictive in fact as the dicta in the early cases suggested, save for the provision of some assistance to children under the ``child benefit'' theory. Recent decisions evince a somewhat more accommodating approach permitting public assistance if the religious missions of the recipient schools may be only marginally served, or if the directness of aid to the schools is attenuated by independent decisions of parents who receive the aid initially. Throughout, the Court has allowed greater discretion when colleges affiliated with religious institutions are aided. Moreover, the opinions reveal a deep division among the Justices over the application of the Lemon tripartite test to these controversies.

A secular purpose is the first requirement to sustain the validity of legislation touching upon religion, and upon this standard the Justices display little disagreement. There are adequate legitimate, non-sectarian bases for legislation to assist nonpublic, religious schools: preservation of a healthy and safe educational environment for all school children, promotion of pluralism and diversity among public and nonpublic schools, and prevention of overburdening of the public school system that would accompany the financial failure of private schools.\50\

NOTE:

Varied views have been expressed by the Justices, however, upon the tests of secular primary effect and church-state entanglement. As to the former test, the Court has formulated no hard-and-fast standard permitting easy judgment in all cases.\51\ In providing assistance, government must avoid aiding the religious mission of such schools directly or indirectly. Thus, for example, funds may not be given to a sectarian institution without restrictions that would prevent their use for such purposes as defraying the costs of building or maintaining chapels or classrooms in which religion is taught.\52\ Loan of substantial amounts of purely secular educational materials to sectarian schools can also result in impermissible advancement of sectarian activity where secular and sectarian education are inextricably intertwined.\53\ Even the provision of secular services in religious schools raises the possibility that religious instruction might be introduced into the class and is sufficient to condemn a program.\54\ The extent to which the religious mission of the entity is inextricably intertwined with the secular mission and the size of the assistance furnished are factors for the reviewing court to consider.\55\ But the fact that public aid to further secular purposes of the school will necessarily ``free up'' some of the institution's funds which it may apply to its religious mission is not alone sufficient to condemn the program.\56\ Rather, it must always be determined whether the religious effects are substantial or whether they are remote and incidental.\57\ Upon that determination and upon the guarantees built into any program to assure that public aid is used exclusively for secular, neutral, and nonideological purposes rests the validity of public assistance.

NOTES:

\52\Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 774-80 (1973).

\53\Meek v. Pittenger, 421 U.S. 349, 362-66 (1975). See also Wolman v. Walter, 433 U.S. 229, 248-51 (1977) (loan of same instructional material and equipment to pupils or their parents).

\54\Compare Meek v. Pittenger, 421 U.S. 349, 367-72 (1975), with Wolman v. Walter, 433 U.S. 229, 238-48 (1977) and Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 654-57 (1980).

\55\Lemon v. Kurtzman, 403 U.S. 602, 616-19 (1971). The existence of what the Court perceived to be massive aid and of religion- pervasive recipients constituted a major backdrop in Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973), and Meek v. Pittenger, 421 U.S. 349 (1973). When the aid is more selective and its permissible use is cabined sufficiently, the character of the institution assumes less importance. Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 661-62 (1980). When the entity is an institution of higher education, the Court appears less concerned with its religious character but it still evaluates the degree to which it is pervasively sectarian. Hunt v. McNair, 413 U.S. 734 (1973); Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976).

\56\Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 658-59 (1980).

\57\The form which the assistance takes may have little to do with the determination. One group of Justices has argued that when the assistance is given to parents, the dangers of impermissible primary effect and entanglement are avoided and it should be approved. Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 801-05 (1973) (dissenting). The Court denied a controlling significance to delivery of funds to parents rather than schools; government must always ensure a secular use. Id. at 780. Another group of Justices has argued that the primary effect test does not permit direct financial support to sectarian schools, Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 665-69 (1980) (dissenting), but the Court held that provision of direct aid with adequate assurances of nonreligious use does not constitute a forbidden primary effect. Id. at 661-62. More recently, in Mueller v. Allen, 463 U.S. 388 (1983), the views of the first group noted above controlled.

The greater the necessity of policing the entity's use of public funds to ensure secular effect, the greater the danger of impermissible entanglement of government with religious matters. Any scheme that requires detailed and continuing oversight of the schools and that requires the entity to report to and justify itself to public authority has the potential for impermissible entanglement.\58\ However, where the nature of the assistance is such that furthering of the religious mission is unlikely and the public oversight is concomitantly less intrusive, a review may be sustained.\59\

NOTES:

\59\ Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 659-61 (1980); Wolman v. Walter, 433 U.S. 229, 240-41, 242-44, 248 (1977).

Thus, government aid which is directed toward furthering secular interests in the welfare of the child or the nonreligious functions of the entity will generally be permitted where the entity is not so pervasively religious that secular and sectarian activities may not be separated. But no mere statement of rules can adequately survey the cases.

Substantial unanimity, at least in result, has prevailed among the Justices in dealing with direct financial assistance to sectarian schools, as might have been expected from the argument over the primary effect test.\60\ State aid to church-connected schools was first found to have gone over the ``verge''\61\ in Lemon v. Kurtzman.\62\ Involved were two state statutes, one of which authorized the ``purchase'' of secular educational services from nonpublic elementary and secondary schools, a form of reimbursement for the cost to religious schools of the teaching of such things as mathematics, modern foreign languages, and physical sciences, and the other of which provided salary supplements to nonpublic school teachers who taught courses similar to those found in public schools, used textbooks approved for use in public schools, and agreed not to teach any classes in religion. Accepting the secular purpose attached to both statutes by the legislature, the Court did not pass on the secular effect test, inasmuch as excessive entanglement was found. This entanglement arose because the legislature ``has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion.''\63\ Because the schools concerned were religious schools, because they were under the control of the church hierarchy, because the primary purpose of the schools was the propagation of the faith, a ``comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions [on religious utilization of aid] are obeyed and the First Amendment otherwise respected.''\64\ Moreover, the provision of public aid inevitably will draw religious conflict into the public arena as the contest for adequate funding goes on. Thus, the Court held, both programs were unconstitutional because the state supervision necessary to ensure a secular purpose and a secular effect inevitably involved the state authorities too deeply in the religious affairs of the aided institutions.\65\

NOTES:

\61\Everson v. Board of Education, 330 U.S. 1, 16 (1947).

\62\403 U.S. 602 (1971).

\63\Id. at 619.

\64\Id.

\65\Only Justice White dissented. Id. at 661. In Lemon v. Kurtzman, 411 U.S. 192 (1973), the Court held that the State could reimburse schools for expenses incurred in reliance on the voided program up to the date the Supreme Court held the statute unconstitutional. But see New York v. Cathedral Academy, 434 U.S. 125 (1977).

Two programs of assistance through provision of equipment and services to private, including sectarian, schools were invalidated in Meek v. Pittenger.\66\ First, the loan of instructional material and equipment directly to qualifying nonpublic elementary and secondary schools was voided as an impermissible extension of assistance of religion. This conclusion was reached on the basis that 75 percent of the qualifying schools were church-related or religiously affiliated educational institutions and the assistance was available without regard to the degree of religious activity of the schools. The materials and equipment loaned were religiously neutral, but the substantial assistance necessarily constituted aid to the sectarian school enterprise as a whole and thus had a primary effect of advancing religion.\67\ Second, the provision of auxiliary services--remedial and accelerated instruction, guidance counseling and testing, speech and hearing services--by public employees on nonpublic school premises was invalidated because the Court thought the program had to be policed closely to ensure religious neutrality and it saw no way that could be done without impermissible entanglement. The fact that the teachers would, under this program and unlike one of the programs condemned in Lemon v. Kurtzman, be public employees rather than employees of the religious schools and possibly under religious discipline was insufficient to permit the State to fail to make certain that religion was not inculcated by subsidized teachers.\68\

NOTES:

\67\Id. at 362-66. See also Wolman v. Walter, 433 U.S. 229, 248- 51 (1977). The Court in Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 661-62 (1980), held that Meek did not forbid all aid that benefited religiously pervasive schools to some extent, so long as it was conferred in such a way as to prevent any appreciable risk of being used to transmit or teach religious views. See also Wolman v. Walter, supra at 262 (Justice Powell concurring in part and dissenting in part).

\68\Meek v. Pittenger, 421 U.S. 349, 367-72 (1975). But see Wolman v. Walter, 433 U.S. 229, 238-48 (1977).

The Court in two 1985 cases again struck down programs of public subsidy of instructional services provided on the premises of sectarian schools, and relied on the effects test as well as the entanglement test. In Grand Rapids School District v. Ball,\69\ the Court invalidated two programs conducted in leased private school classrooms, one taught during the regular school day by public school teachers,\70\ and the other taught after regular school hours by part-time ``public'' teachers otherwise employed as full-time teachers by the sectarian school.\71\ Both programs, the Court held, had the effect of promoting religion in three distinct ways. The teachers might be influenced by the ``pervasively sectarian nature'' of the environment and might ``subtly or overtly indoctrinate the students in particular religious tenets at public expense''; use of the parochial school classrooms ``threatens to convey a message of state support for religion'' through ``the symbolic union of government and religion in one sectarian enterprise''; and ``the programs in effect subsidize the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects.''\72\ In Aguilar v. Felton,\73\ the Court invalidated a program under which public school employees provided instructional services on parochial school premises to educationally deprived children. The program differed from those at issue in Grand Rapids because the classes were closely monitored for religious content. This ``pervasive monitoring'' did not save the program, however, because, by requiring close cooperation and day-to-day contact between public and secular authorities, the monitoring ``infringes precisely those Establishment Clause values at the root of the prohibition of excessive entanglement.''\74\

NOTES:

\70\The vote on this ``Shared Time'' program was 5-4, the opinion of the Court by Justice Brennan being joined by Justices Marshall, Blackmun, Powell, and Stevens. The Chief Justice, and Justices White, Rehnquist, and O'Connor dissented.

\71\The vote on this ``Community Education'' program was 7-2, Chief Justice Burger and Justice O'Connor concurring with the ``Shared Time'' majority.

\72\473 U.S. at 397.

\73\473 U.S. 402 (1985). This was another 5-4 decision, with Justice Brennan's opinion of the Court being joined by Justices Marshall, Blackmun, Powell, and Stevens, and with Chief Justice Burger and Justices White, Rehnquist, and O'Connor dissenting.

\74\473 U.S. at 413.

A state program to reimburse nonpublic schools for a variety of services mandated by state law was voided because the statute did not distinguish between secular and potentially religious services the costs of which would be reimbursed.\75\ Similarly, a program of direct monetary grants to nonpublic schools to be used for the maintenance of school facilities and equipment failed to survive the primary effect test because it did not restrict payment to those expenditures related to the upkeep of facilities used exclusively for secular purposes and because ``within the context of these religion-oriented institutions'' the Court could not see how such restrictions could effectively be imposed.\76\ But a plan of direct monetary grants to nonpublic schools to reimburse them for the costs of state-mandated record-keeping and of administering and grading state-prepared tests and which contained safeguards against religious utilization of the tests was sustained even though the Court recognized the incidental benefit to the schools.\77\

NOTES:

\76\Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 774-80 (1973). Chief Justice Burger and Justice Rehnquist concurred, Id. at 798, and Justice White dissented. Id. at 820.

\77\Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646 (1980). Justices Blackmun, Brennan, Marshall, and Stevens dissented. Id. at 662, 671. The dissenters thought that the authorization of direct reimbursement grants was distinguishable from previously approved plans that had merely relieved the private schools of the costs of preparing and grading state-prepared tests. See Wolman v. Walter, 433 U.S. 229, 238-41 (1977).

The ``child benefit'' theory, under which it is permissible for government to render ideologically neutral assistance and services to pupils in sectarian schools without being deemed to be aiding the religious mission of the schools, has not proved easy to apply. A number of different forms of assistance to students were at issue in Wolman v. Walter.\78\ The Court approved the following: standardized tests and scoring services used in the public schools, with private school personnel not involved in the test drafting and scoring; speech, hearing, and psychological diagnostic services provided in the private schools by public employees; and therapeutic, guidance, and remedial services for students provided off the premises of the private schools. In all these, the Court thought the program contained adequate built-in protections against religious utilization. But while the Court adhered to its ruling permitting the States to loan secular textbooks used in the public schools to pupils attending religious schools,\79\ it declined to extend the precedent to permit the loan to pupils or their parents of instructional materials and equipment, such as projectors, tape recorders, maps, globes and science kits, although they were identical to those used in the public schools.\80\ Nor was a State permitted to expend funds to pay the costs to religious schools of field trip transportation such as was provided to public school students.\81\

NOTES:

\79\Meek v. Pittenger, 421 U.S. 349, 359-72 (1975); Wolman v. Walter, 433 U.S. 229, 236-38 (1977). Allen was explained as resting on ``the unique presumption'' that ``the educational content of textbooks is something that can be ascertained in advance and cannot be diverted to sectarian uses.'' There was ``a tension'' between Nyquist, Meek, and Wolman, on the one hand, and Allen on the other; while Allen was to be followed ``as a matter of stare decisis,'' the ``presumption of neutrality'' embodied in Allen would not be extended to other similar assistance. Id. at 251 n.18. A more recent Court majority revived the Allen presumption, however, applying it to uphold tax deductions for tuition and other school expenses in Mueller v. Allen, 463 U.S. 388 (1983). Justice Rehnquist wrote the Court's opinion, joined by Justices White, Powell, and O'Connor, and by Chief Justice Burger.

\80\433 U.S. at 248-51. See also id. at 263-64 (Justice Powell concurring in part and dissenting in part).

\81\Id. at 252-55. Justice Powell joined the other three dissenters who would have approved this expenditure. Id. at 264.

Substantially similar programs from New York and Pennsylvania providing for tuition reimbursement aid to parents of religious school children were struck down in 1973. New York's program provided reimbursements out of general tax revenues for tuition paid by low- income parents to send their children to nonpublic elementary and secondary schools; the reimbursements were of fixed amounts but could not exceed 50 percent of actual tuition paid. Pennsylvania provided fixed-sum reimbursement for parents who send their children to nonpublic elementary and secondary schools, so long as the amount paid did not exceed actual tuition, the funds to be derived from cigarette tax revenues. Both programs, it was held, constituted public financial assistance to sectarian institutions with no attempt to segregate the benefits so that religion was not advanced.\82\

NOTE:

New York had also enacted a separate program providing tax relief for low-income parents not qualifying for the tuition reimbursements; here relief was in the form of a deduction or credit bearing no relationship to the amounts of tuition paid, but keyed instead to adjusted gross income. This too was invalidated in Nyquist. ``In practical terms there would appear to be little difference, for purposes of determining whether such aid has the effect of advancing religion, between the tax benefit allowed here and the tuition [reimbursement] grant. . . . The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools. The only difference is that one parent receives an actual cash payment while the other is allowed to reduce by an arbitrary amount the sum he would otherwise be obliged to pay over to the State. We see no answer to Judge Hays' dissenting statement below that `[i]n both instances the money involved represents a charge made upon the state for the purpose of religious education.'''\83\ Some difficulty, however, was experienced in distinguishing this program from the tax exemption approved in Walz.\84\

NOTES:

\84\Id. at 791-94. Principally, Walz was said to be different because of the age of exemption there dealt with, because the Walz exemption was granted in the spirit of neutrality while the tax credit under consideration was not, and the fact that the Walz exemption promoted less entanglement while the credit would promote more.

Two subsidiary arguments were rejected by the Court in these cases. First, it had been argued that the tuition reimbursement program promoted the free exercise of religion in that it permitted low-income parents desiring to send their children to school in accordance with their religious views to do so. The Court agreed that ``tension inevitably exists between the Free Exercise and the Establishment Clauses,'' but explained that the tension is ordinarily resolved through application of the ``neutrality'' principle: government may neither advance nor inhibit religion. The tuition program inescapably advanced religion and thereby violated this principle.\85\ In the Pennsylvania case, it was argued that because the program reimbursed parents who sent their children to nonsectarian schools as well as to sectarian ones, the portion respecting the former parents was valid and ``parents of children who attended sectarian schools are entitled to the same aid as a matter of equal protection. The argument is thoroughly spurious. . . . The Equal Protection Clause has never been regarded as a bludgeon with which to compel a State to violate other provisions of the Constitution.''\86\

NOTES:

\86\Sloan v. Lemon, 413 U.S. 825, 833-35 (1973). In any event, the Court sustained the district court's refusal to sever the program and save that portion as to children attending non-sectarian schools on the basis that since so large a portion of the children benefitted attended religious schools it could not be assumed the legislature would have itself enacted such a limited program.       In Wheeler v. Barrera, 417 U.S. 402 (1974), the Court held that States receiving federal educational funds were required by federal law to provide ``comparable'' but not equal services to both public and private school students within the restraints imposed by state constitutional restrictions on aid to religious schools. In the absence of specific plans, the Court declined to review First Amendment limitations on such services.

The Nyquist holding was substantially undermined in 1983, the Court taking a more accommodationist approach toward indirect subsidy of parochial schools. In Mueller v. Allen,\87\ the Court upheld a Minnesota deduction from state income tax available to parents of elementary and secondary school children for expenses incurred in providing tuition, transportation, textbooks, and various other school supplies. Because the Minnesota deduction was available to parents of public and private schoolchildren alike, the Court termed it ``vitally different from the scheme struck down in Nyquist,'' and more similar to the benefits upheld in Everson and Allen as available to all schoolchildren.\88\ The Court declined to look behind the ``facial neutrality'' of the law and consider empirical evidence of its actual impact, citing a need for ``certainty'' and the lack of ``principled standards'' by which to evaluate such evidence.\89\ Also important to the Court's refusal to consider the alleged disproportionate benefits to parents of parochial schools was the assertion that, ``whatever unequal effect may be attributed to the statutory classification can fairly be regarded as a rough return for the benefits . . . provided to the State and all taxpayers by parents sending their children to parochial schools.''\90\

NOTES:

\88\463 U.S. at 398. Nyquist had reserved the question of ``whether the significantly religious character of the statute's beneficiaries might differentiate the present cases from a case involving some form of public assistance (e.g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefitted.'' 413 U.S. at 782-83 n.38.

\89\463 U.S. at 401. Justice Marshall's dissenting opinion, joined by Justices Brennan, Blackmun, and Stevens, argued that the tuition component of the deduction, unavailable to parents of most public schoolchildren, was by far the most significant, and that the deduction as a whole ``was little more that a subsidy of tuition masquerading as a subsidy of general educational expenses.'' 463 U.S. at 408-09. Cf. Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985), where the Court emphasized that 40 of 41 nonpublic schools at which publicly funded programs operated were sectarian in nature; and Widmar v. Vincent, 454 U.S. 263, 275 (1981), holding that a college's open forum policy had no primary effect of advancing religion ``[a]t least in the absence of evidence that religious groups will dominate [the] forum.'' But cf. Bowen v. Kendrick, 487 U.S. 589 (1988), permitting religious institutions to be recipients under a ``facially neutral'' direct grant program.

\90\463 U.S. at 402.

A second factor important in Mueller, present but not controlling in Nyquist, was that the financial aid was provided to the parents of schoolchildren rather than to the school, and thus in the Court's view was ``attenuated'' rather than direct; since aid was ``available only as a result of decisions of individual parents,'' there was no ```impramatur of state approval.''' The Court noted that, with the exception of Nyquist, ``all . . . of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the State to the schools themselves.''\91\ Thus Mueller seemingly stands for the proposition that state subsidies of tuition expenses at sectarian schools are permissible if contained in a facially neutral scheme providing benefits, at least nominally, to parents of public and private schoolchildren alike.\92\

NOTES:

\92\See also Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481 (1986), in which the Court held that provision of vocational assistance for the blind to a student who used the aid for tuition at a sectarian college did not have a primary effect of advancing religion. Without citing Mueller, the Court relied on the fact that the aid is paid directly to the student for use at the institution of his or her choice, so that religious institutions received aid ``only as a result of the genuinely independent and private choices of aid recipients,'' and on the additional fact that there was nothing in the record to indicate that ``any significant portion of the aid'' from the program as a whole would go to religious education. 474 U.S. at 487, 488.

The Court, although closely divided at times, has approved quite extensive public assistance to institutions of higher learning. On the same day that it first struck down an assistance program for elementary and secondary private schools, the Court sustained construction grants to church-related colleges and universities.\93\ The specific grants in question were for construction of two library buildings, a science building, a music, drama, and arts building, and a language laboratory. The law prohibited the financing of any facility for, or the use of any federally-financed building for, religious purposes, although the restriction on use ran for only twenty years.\94\ The Court found that the purpose and effect of the grants were secular and that, unlike elementary and secondary schools, religious colleges were not so permeated with religious inculcations.\95\ The supervision required to ensure conformance with the non-religious-use requirement was found not to constitute ``excessive entanglement,'' inasmuch as a building is nonideological in character, unlike teachers, and inasmuch as the construction grants were onetime things and did not continue as did the state programs.

NOTES:

\94\Because such buildings would still have substantial value after twenty years, a religious use then would be an unconstitutional aid to religion, and the period of limitation was struck down, Id. at 682-84.

\95\It was no doubt true, Chief Justice Burger conceded, that construction grants to religious-related colleges did in some measure benefit religion, since the grants freed money that the colleges would be required to spend on the facilities for which the grants were made. Bus transportation, textbooks, and tax exemptions similarly benefited religion and had been upheld. ``The crucial question is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion.'' Id. at 679.

Also sustained was a South Carolina program under which a state authority would issue revenue bonds for construction projects on campuses of private colleges and universities. The Court did not decide whether this special form of assistance could be otherwise sustained, because it concluded that religion was neither advanced nor inhibited, nor was there any impermissible public entanglement. ``Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.''\96\ The colleges involved, though they were affiliated with religious institutions, were not shown to be so pervasively religious--no religious test existed for faculty or student body, a substantial part of the student body was not of the religion of the affiliation--and state law precluded the use of any state-financed project for religious activities.\97\

NOTES:

\97\Id. at 739-40, 741-45. Justices Brennan, Douglas, and Marshall, dissenting, rejected the distinction between elementary and secondary education and higher education and foresaw a greater danger of entanglement than did the Court. Id. at 749.

The kind of assistance permitted by Tilton and by Hunt v. McNair seems to have been broadened when the Court sustained a Maryland program of annual subsidies to qualifying private institutions of higher education; the grants were noncategorical but could not be used for sectarian purposes, a limitation to be policed by the administering agency.\98\ The plurality opinion found a secular purpose; found that the limitation of funding to secular activities was meaningful,\99\ since the religiously affiliated institutions were not so pervasively sectarian that secular activities could not be separated from sectarian ones; and determined that excessive entanglement was improbable, given the fact that aided institutions were not pervasively sectarian. The annual nature of the subsidy was recognized as posing the danger of political entanglement, but the plurality thought that the character of the aided institutions--``capable of separating secular and religious functions''--was more important.\100\

NOTES:

\100\Id. at 765-66. The plurality also relied on the facts that the student body was not local but diverse, and that large numbers of non-religiously affiliated institutions received aid. A still further broadening of governmental power to extend aid affecting religious institutions of higher education may be discerned in the Court's summary affirmance of two lower-court decisions upholding programs of assistance--scholarships and tuitions grants--to students at college and university as well as vocational programs in both public and private-- including religious--institutions; one of the programs contained no secular use restriction at all and in the other one the restriction seemed somewhat pro forma. Smith v. Board of Governors of Univ. of North Carolina, 434 U.S. 803 (1977), aff'g 429 F. Supp. 871 (W.D.N.C. 1977); Americans United v. Blanton, 434 U.S. 803 (1977), aff'g 433 F. Supp. 97 (M.D. Tenn. 1977). In Witters v. Washington Dep't of Services for the Blind, 474 U.S. 481 (1986), the Court upheld use of a vocational rehabilitation scholarship at a religious college, emphasizing that the religious institution received the public money as a result of the ``genuinely independent and private choices of the aid recipients,'' and not as the result of any decision by the State to sponsor or subsidize religion.

In Bowen v. Kendrick\101\ the Court by a 5-4 vote upheld the Adolescent Family Life Act (AFLA)\102\ against facial challenge. The Act permits direct grants to religious organizations for provision of health care and for counseling of adolescents on matters of pregnancy prevention and abortion alternatives, and requires grantees to involve other community groups, including religious organizations, in delivery of services. All of the Justices agreed that AFLA had valid secular purposes; their disagreement related to application of the effects and entanglement tests. The Court relied on analogy to the higher education cases rather than the cases involving aid to elementary and secondary schools.\103\ The case presented conflicting factual considerations. On the one hand, the class of beneficiaries was broad, with religious groups not predominant among the wide range of eligible community organizations. On the other hand, there were analogies to the parochial school aid cases: secular and religious teachings might easily be mixed, and the age of the targeted group (adolescents) suggested susceptibility. The Court resolved these conflicts by holding that AFLA is facially valid, there being insufficient indication that a significant proportion of the AFLA funds would be disbursed to ``pervasively sectarian'' institutions, but by remanding to the district court to determine whether particular grants to pervasively sectarian institutions were invalid. The Court emphasized in both parts of its opinion that the fact that ``views espoused [during counseling] on matters of premarital sex, abortion, and the like happen to coincide with the religious views of the AFLA grantee would not be sufficient to show [an Establishment Clause violation].''\104\

NOTES:

\102\Pub. L. 97-35, 95 Stat. 578 (1981), codified at 42 U.S.C. Sec. 300z et seq.

\103\The Court also noted that the 1899 case of Bradfield v. Roberts had established that religious organizations may receive direct aid for support of secular social-welfare cases.

\104\487 U.S. at 621.

Although the Court applied the Lemon three-part test in Kendrick, the case may signal a changing approach to direct aid cases. The distinction between facial and as-applied invalidity is new in this context, and may have implications for other Establishment Clause challenges. Also noteworthy is the fact that the Court expressed tolerance for a level of monitoring that would be impermissible for ``pervasively sectarian'' organizations, rejecting the ```Catch-22' argument'' that excessive entanglement would result. Perhaps most significant is the fact that Justice Kennedy indicated in his separate concurring opinion that he would look behind the ``pervasively sectarian'' nature of aid recipients and focus on how aid money is actually being spent; only if aid is being spent for religious purposes would he hold that there has been a violation.\105\ This apparent contrast with the approach previously advocated by Justice Powell suggests that the balance on the Court may have shifted toward a less restrictive approach in the parochial school aid context.

NOTE:

Governmental Encouragement of Religion in Public Schools: Released Time. -- Introduction of religious education into the public schools, one of Justice Rutledge's ``great drives,''\106\ has also occasioned a substantial amount of litigation in the Court. In its first two encounters, the Court voided one program and upheld another, in which the similarities were at least as significant as the differences. Both cases involved ``released time'' programs, the establishing of a period during which pupils in public schools were to be allowed, upon parental request, to receive religious instruction. In the first, the religious classes were conducted during regular school hours in the school building by outside teachers furnished by a religious council representing the various faiths, subject to the approval or supervision of the superintendent of schools. Attendance reports were kept and reported to the school authorities in the same way as for other classes, and pupils not attending the religious instruction classes were required to continue their regular studies. ``The operation of the State's compulsory education system thus assists and is integrated with the program of religious instruction carried on by separate religious sects. Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment . . . .''\107\ The case was also noteworthy because of the Court's express rejection of the contention ``that historically the First Amendment was intended to forbid only government preference of one religion over another, not an impartial governmental assistance of all religions.''\108\

NOTES:

\107\Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 209-10 (1948).

\108\Id. at 211.

Four years later, the Court upheld a different released-time program.\109\ In this one, schools released pupils during school hours, on written request of their parents, so that they might leave the school building and go to religious centers for religious instruction or devotional exercises. The churches reported to the schools the names of children released from the public schools who did not report for religious instruction; children not released remained in the classrooms for regular studies. The Court found the differences between this program and the program struck down in McCollum to be constitutionally significant. Unlike McCollum, where ``the classrooms were used for religious instruction and force of the public school was used to promote that instruction,'' religious instruction was conducted off school premises and ``the public schools do no more than accommodate their schedules.''\110\ We are a religious people whose institutions presuppose a Supreme Being,'' Justice Douglas wrote for the Court. ``When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.''\111\

NOTES:

\110\Id. at 315. See also Abington School Dist. v. Schempp, 374 U.S. 203, 261-63 (1963) (Justice Brennan concurring) (suggesting that the important distinction was that ``the McCollum program placed the religious instruction in the public school classroom in precisely the position of authority held by the regular teachers of secular subjects, while the Zorach program did not'').

\111\Id. at 313-14. These cases predated formulation of the Lemon three-part test for religious establishment, and the status of that test--as well as the constitutional status of released-time programs--is unclear. The degree of official and church cooperation may well not rise to a problem of excessive entanglement, but quaere, what is the secular purpose and secular effect of such programs? Some guidance may be provided by Grand Rapids School District v. Ball, 473 U.S. 373 (1985), and Aguilar v. Felton, 473 U.S. 402 (1985), striking down programs using public school teachers for instruction of parochial school students in parochial school facilities, but these were 5-4 decisions and the Court's membership has since changed.

Governmental Encouragement of Religion in Public Schools: Prayers and Bible Reading. -- Upon recommendation of the state governing board, a local New York school required each class to begin each school day by reading aloud the following prayer in the presence of the teacher: ``Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents, our teachers and our country.'' Students who wished to do so could remain silent or leave the room. Said the Court: ``We think that by using its public school system to encourage recitation of the Regents' prayer, the State of New York had adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity. . . . [W]e think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.''\112\ ``Neither the fact that the prayer may be nondenominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause. . . . The Establishment Clause . . . does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.''\113\

NOTES:

\113\Id. at 430. Justice Black for the Court rejected the idea that the prohibition of religious services in public schools evidenced ``a hostility toward religion or toward prayer.'' Id. at 434. Rather, such an application of the First Amendment protected religion from the coercive hand of government and government from control by a religious sect. Dissenting alone, Justice Stewart could not ``see how an `official religion' is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation.'' Id. at 444, 445.

Following the prayer decision came two cases in which parents and their school age children challenged the validity under the Establishment Clause of requirements that each school day begin with readings of selections from the Bible. Scripture reading, like prayers, the Court found, was a religious exercise. ``Given that finding the exercises and the law requiring them are in violation of the Establishment Clause.''\114\ Rejected were contentions by the State that the object of the programs was the promotion of secular purposes, such as the expounding of moral values, the contradiction of the materialistic trends of the times, the perpetuation of traditional institutions, and the teaching of literature\115\ and that to forbid the particular exercises was to choose a ``religion of secularism'' in their place.\116\ Though the ``place of religion in our society is an exalted one,'' the Establishment Clause, the Court continued, prescribed that in ``the relationship between man and religion,'' the State must be ``firmly committed to a position of neutrality.''\117\

NOTES:

\115\Id. at 223-24. The Court thought the exercises were clearly religious.

\116\Id. at 225. ``We agree of course that the State may not establish a `religion of secularism' in the sense of affirmatively opposing or showing hostility to religion, thus `preferring those who believe in no religion over those who do believe.' Zorach v. Clauson, supra, at 314. We do not agree, however, that this decision in any sense has that effect.''

\117\Id. 226. Justice Brennan contributed a lengthy concurrence in which he attempted to rationalize the decisions of the Court on the religion clauses and to delineate the principles applicable. He concluded that what the establishment clause foreclosed ``are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice.'' Id. at 230, 295. Justice Stewart again dissented alone, feeling that the claims presented were essentially free exercise contentions which were not supported by proof of coercion or of punitive official action for nonparticipation.       While numerous efforts were made over the years to overturn these cases, through constitutional amendment and through limitations on the Court's jurisdiction, the Supreme Court itself has had no occasion to review the area again. But see Stone v. Graham, 449 U.S. 39 (1980) (summarily reversing state court and invalidating statute requiring the posting of the Ten Commandments, purchased with private contributions, on the wall of each public classroom).

In Wallace v. Jaffree,\118\ the Court held invalid an Alabama statute authorizing a 1-minute period of silence in all public schools ``for meditation or prayer.'' Because the only evidence in the record indicated that the words ``or prayer'' had been added to the existing statute by amendment for the sole purpose of returning voluntary prayer to the public schools, the Court found that the first prong of the Lemon test had been violated, i.e. that the statute was invalid as being entirely motivated by a purpose of advancing religion. The Court characterized the legislative intent to return prayer to the public schools as ``quite different from merely protecting every student's right to engage in voluntary prayer during an appropriate moment of silence during the schoolday,''\119\ and both Justices Powell and O'Connor in concurring opinions suggested that other state statutes authorizing moments of silence might pass constitutional muster.\120\

NOTES:

\119\Id. at 59.

\120\Justice O'Connor's concurring opinion is notable for its effort to synthesize and refine the Court's Establishment and Free Exercise tests (see also the Justice's concurring opinion in Lynch v. Donnelly), and Justice Rehnquist's dissent for its effort to redirect Establishment Clause analysis by abandoning the tripartite test, discarding any requirement that government be neutral between religion and ``irreligion,'' and confining the scope to a prohibition on establishing a national church or otherwise favoring one religious group over another.

The school prayer decisions served as precedent for the Court's holding in Lee v. Weisman\121\ that a school-sponsored invocation at a high school commencement violated the Establishment Clause. The Court rebuffed a request to reexamine the Lemon test, finding ``[t]he government involvement with religious activity in this case [to be] pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school.'' State officials not only determined that an invocation and benediction should be given, but also selected the religious participant and provided him with guidelines for the content of nonsectarian prayers. The Court, in an opinion by Justice Kennedy, viewed this state participation as coercive in the elementary and secondary school setting.\122\ The state ``in effect required participation in a religious exercise,'' since the option of not attending ``one of life's most significant occasions'' was no real choice. ``At a minimum,'' the Court concluded, the Establishment Clause ``guarantees that government may not coerce anyone to support or participate in religion or its exercise.''

NOTES:

\122\The Court distinguished Marsh v. Chambers, 463 U.S. 783, 792 (1983), holding that the opening of a state legislative session with a prayer by a state-paid chaplain does not offend the Establishment Clause. The Marsh Court had distinguished Abington on the basis that state legislators, as adults, are ``presumably not readily susceptible to `religious indoctrination' or `peer pressure,''' and the Lee Court reiterated this distinction. 112 S. Ct. at 2660.

Governmental Encouragement of Religion in Public Schools: Curriculum Restriction. -- In Epperson v. Arkansas,\123\ the Court struck down a state statute which made it unlawful for any teacher in any state-supported educational institution ``to teach the theory or doctrine that mankind ascended or descended from a lower order of animals,'' or ``to adopt or use in any such institution a textbook that teaches'' this theory. Agreeing that control of the curriculum of the public schools was largely in the control of local officials, the Court nonetheless held that the motivation of the statute was a fundamentalist belief in the literal reading of the Book of Genesis and that this motivation and result required the voiding of the law. ``The law's effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First . . . Amendment to the Constitution.''\124\

NOTES:

\124\Id. at 109.

Similarly invalidated as having the improper purpose of advancing religion was a Louisiana statute mandating balanced treatment of ``creation-science'' and ``evolution-science'' in the public schools. ``The preeminent purpose of the Louisiana legislature,'' the Court found in Edwards v. Aguillard, ``was clearly to advance the religious viewpoint that a supernatural being created humankind.''\125\ The Court viewed as a ``sham'' the stated purpose of protecting academic freedom, and concluded instead that the legislature's purpose was to narrow the science curriculum in order to discredit evolution ``by counterbalancing its teaching at every turn with the teaching of creation science.''\126\

NOTES:

\126\483 U.S. at 589. The Court's conclusion was premised on its finding that ``the term `creation science,' as used by the legislature . . . embodies the religious belief that a supernatural creator was responsible for the creation of humankind.'' Id. at at 592.

Access of Religious Groups to School Property. -- Although government may not promote religion through its educational facilities, it may not bar student religious groups from meeting on public school property if it makes those facilities available to nonreligious student groups. To allow religious groups equal access to a public college's facilities would further a secular purpose, would not constitute an impermissible benefit to religion, and would pose little hazard of entanglement.\127\ These principles apply to public secondary schools as well as to institutions of higher learning.\128\ In 1990 the Court upheld application of the Equal Access Act\129\ to prevent a secondary school from denying access to school premises to a student religious club while granting access to such other ``noncurriculum'' related student groups as a scuba diving club, a chess club, and a service club.\130\

NOTES:

\128\Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226 (1990). The Court had noted in Widmar that university students ``are less impressionable than younger students and should be able to appreciate that the University's policy is one of neutrality toward religion,'' 454 U.S. at 274 n.14. The Mergens plurality ignored this distinction, suggesting that the secondary school's neutrality was also evident to its students. 496 U.S. at 252.

\129\Pub. L. 98-377, title VIII, 98 Stat. 1302 (1984); 20 U.S.C. Sec. Sec. 4071-74.

\130\There was no opinion of the Court on Establishment Clause issues, a plurality of four led by Justice O'Connor applying the three- part Lemon test, and concurring Justices Kennedy and Scalia proposing a less stringent test under which ``neutral'' accommodations of religion would be permissible as long as they do not in effect establish a state religion, and as long as there is no coercion of students to participate in a religious activity. Id. at 2377.

While the greater number of establishment cases have involved educational facilities, in other areas as well there have been contentions that legislative policies have been laws ``respecting'' the establishment of religion.

Tax Exemptions of Religious Property. -- Every State and the District of Columbia provide for tax exemptions for religious institutions, and the history of such exemptions goes back to the time of our establishment as a polity. The only expression by a Supreme Court Justice prior to 1970 was by Justice Brennan, who deemed tax exemptions constitutional because the benefit conferred was incidental to the religious character of the institutions concerned.\131\ Then, in 1970, a nearly unanimous Court sustained a state exemption from real or personal property taxation of ``property used exclusively for religious, educational or charitable purposes'' owned by a corporation or association which was conducted exclusively for one or more of these purposes and did not operate for profit.\132\ The first prong of a two-prong argument saw the Court adopting Justice Brennan's rationale. Using the secular purpose and effect test, Chief Justice Burger noted that the purpose of the exemption was not to single out churche