Establishment of Religion

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


“[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.”55 “[The] Court has long held that the First Amendment reaches more than classic, 18th-century establishments.”56 However, the Court’s reading of the clause has never resulted in the barring of all assistance that 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.57

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 wing of a hospital owned and operated by a Roman Catholic order that was to be devoted to the care of the poor. The Court viewed the hospital primarily as a secular institution so chartered by Congress and not as a religious or sectarian body, and thus avoided the constitutional issue.58 But, when the right of local authorities to provide free transportation for children attending parochial schools reached the Court, it adopted a very broad view of the restrictions imposed by the Establishment Clause. “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.’”59

But, despite this interpretation, the majority sustained the provision of transportation. Although recognizing that “it approaches the verge” of the state’s constitutional power, Justice Black found that the transportation was a form of “public welfare legislation” that was being extended “to all its citizens without regard to their religious belief.”60 “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.”61 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.62

The Court in 1968 relied on the “child benefit” theory to sustain state loans of textbooks to parochial school students.63 Using the secular purpose and effect tests,64 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.”65

From these beginnings, the case law on the discretion of state and federal governmental assistance to sectarian elementary and secondary schools as well as other religious entities has multiplied. Through the 1970s, at least, the law became as restrictive in fact as the dicta in the early cases suggested, except for the provision of some assistance to children under the “child benefit” theory. Since that time, the Court has gradually adopted a more accommodating approach. It has upheld direct aid programs that have been of only marginal benefit to the religious mission of the recipient elementary and secondary schools, tax benefit and scholarship aid programs where the schools have received the assistance as the result of the independent decisions of the parents or students who initially receive the aid, and in its most recent decisions direct aid programs which substantially benefit the educational function of such schools. Indeed, in its most recent decisions the Court has overturned several of the most restrictive school aid precedents from its earlier jurisprudence. Throughout, the Court has allowed greater discretion with respect to aid programs benefiting religiously affiliated colleges and social services agencies.

A secular purpose is the first requirement of the Lemon tripartite test 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.66

The primary secular effect and no excessive entanglement aspects of the Lemon test, however, have proven much more divisive. As a consequence, the Court’s applications of these tests have not always been consistent, and the rules guiding their application have not always been easy to decipher. Moreover, in its most recent decisions the Court has substantially modified the strictures these tests have previously imposed on public aid to pervasively sectarian entities.

In applying the primary effect and excessive entanglement tests, the Court has drawn a distinction between public aid programs that directly aid sectarian entities and those that do so only indirectly. Aid provided directly, the Court has said, must be limited to secular use lest it have a primary effect of advancing religion. The Establishment Clause “absolutely prohibit[s] government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith.”67 The government may provide direct support to the secular services and programs sponsored by religious entities, but it cannot directly subsidize such organizations’ religious activities or proselytizing.68 Thus, the Court struck down as unconstitutional a program providing grants for the maintenance and repair of sectarian elementary and secondary school facilities, because the grants had no restrictions to prevent their use for such purposes as defraying the costs of building or maintaining chapels or classrooms in which religion is taught.69 It also struck down a program subsidizing field trip transportation for children attending sectarian elementary and secondary schools, because field trips are inevitably interwoven with the schools’ educational functions.70

But the Court has not imposed a secular use limitation on aid programs that benefit sectarian entities only indirectly, i. e., as the result of decisions by someone other than the government itself. The initial beneficiaries of the public aid must be determined on the basis of religiously neutral criteria, and they must have a genuine choice about whether to use the aid at sectarian or nonsectarian entities. But, where those standards have been met, the Court has upheld indirect aid programs even though the sectarian institutions that ultimately benefit may use the aid for religious purposes. Moreover, the Court has gradually broadened its understanding of what constitutes a genuine choice so that now most voucher or tax benefit programs benefiting the parents of children attending sectarian schools seem able to pass constitutional muster.

Thus, the Court initially struck down tax benefit and educational voucher programs where the initial beneficiaries were limited to the universe of parents of children attending sectarian schools and where the aid, as a consequence, was virtually certain to go to sectarian schools.71 Subsequently, however, it upheld a state program that allowed taxpayers to take a deduction from their gross income for educational expenses, including tuition, incurred in sending their children to public or private schools, because the deduction was “available for educational expenses incurred by all parents” and the aid became available to sectarian schools “only as a result of numerous, private choices of individual parents of school-age children.”72 It upheld for the same reasons a vocational rehabilitation program that made a grant to a blind person for training at a Bible college for a religious vocation73 and another program that provided a sign-language interpreter for a deaf student attending a sectarian secondary school.74 Most recently, it upheld as constitutional a tuition voucher program made available to the parents of children attending failing public schools, notwithstanding that most of the private schools at which the vouchers could be used were sectarian in nature.75 Whether the parents had a genuine choice among religious and secular options in using the vouchers, the Court said, had to be evaluated on the basis not only of the private schools where the vouchers could be redeemed but also by examining the full range of educational options open to them, including various public school options.

In applying the primary effect and excessive entanglement tests, the Court has also, until recently, drawn a distinction between religious institutions that are pervasively sectarian and those that are not. Organizations that are permeated by a religious purpose and character in all that they do have often been held by the Court to be constitutionally ineligible for direct public aid. Direct aid to religion-dominated institutions inevitably violates the primary effect test, the Court has said, because such aid generally cannot be limited to secular use in such entities and, as a consequence, it has a primary effect of advancing religion.76 Moreover, any effort to limit the use of public aid by such entities to secular use inevitably falls afoul of the excessive entanglement test, according to the Court, because the risk of diversion of the aid to religious use is so great that it necessitates an intrusive government monitoring.77 But, direct aid to religious entities that are not pervasively sectarian, the Court held, is constitutionally permissible, because the secular functions of such entities can be distinguished from their religious ones for purposes of public aid and because the risk of diversion of the aid to religious use is attenuated and does not require an intrusive government monitoring. As a practical matter, this distinction has had its most serious consequences for programs providing aid directly to sectarian elementary and secondary schools, because the Court has, until recently, presumed such schools to be pervasively sectarian and direct aid, as a consequence, to be severely limited.78 The Court has presumed to the contrary with respect to religiously affiliated colleges, hospitals, and social services providers; and as a consequence it has found direct aid programs to such entities to be permissible.79

In its most recent decisions the Court has modified both the primary effect and excessive entanglement prongs of the Lemon test as they apply to aid programs directly benefiting sectarian elementary and secondary schools; and in so doing it has overturned several prior decisions imposing tight constraints on aid to pervasively sectarian institutions. In Agostini v. Felton80 the Court, in a 5–4 decision, abandoned the presumptions that public school teachers giving instruction on the premises of sectarian elementary and secondary schools will be so affected by the religiosity of the environment that they will inculcate religion and that, consequently, an excessively entangling monitoring of their services is constitutionally necessary. In Mitchell v. Helms,81 in turn, the Court abandoned the presumptions that such schools are so pervasively sectarian that their secular educational functions cannot be differentiated from their religious educational functions and that direct aid to their educational functions, consequently, violates the Establishment Clause. In reaching these conclusions and upholding the aid programs in question, the Court overturned its prior decision in Aguilar v. Felton82 and parts of its decisions in Meek v. Pittenger,83 Wolman v. Walter,84 and Grand Rapids School District v. Ball.85

Thus, the Court’s jurisprudence concerning public aid to sectarian organizations has evolved, particularly as it concerns public aid to sectarian elementary and secondary schools. That evolution has given some uncertainty to the rules that apply to any given form of aid; and in both Agostini v. Felton86 and Mitchell v. Helms87 the Court left open the possibility of a further evolution in its thinking. Nonetheless, the cases give substantial guidance.

State aid to church-connected schools was first found to have gone over the “verge”88 in Lemon v. Kurtzman.89 The Court struck down 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, but found excessive entanglement. 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 . . . .”90 Because the schools concerned were religious schools, because they were under the control of the church hierarchy, and 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 use of aid] are obeyed and the First Amendment otherwise respected.”91 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.92

Two programs of assistance through the provision of equipment and services to private, including sectarian, schools were invalidated in Meek v. Pittenger.93 First, the loan of instructional material and equipment directly to nonpublic elementary and secondary schools was voided as constituting impermissible assistance to religion. This holding was based on the fact that 75 percent of the qualifying schools were church-related or religiously affiliated educational institutions, and that 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.94 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 found that, even though the teachers under this program—unlike those under one of the programs struck down in Lemon v. Kurtzman—were public employees rather than employees of the religious schools, the continuing surveillance necessary to ensure that the teachers remained religiously neutral gave rise to a constitutionally intolerable degree of entanglement between church and state.95

In two 1985 cases, the Court 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,96 the Court invalidated two programs conducted in leased private school classrooms, one taught during the regular school day by public school teachers,97 and the other taught after regular school hours by part-time “public” teachers otherwise employed as full-time teachers by the sectarian school.98 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.”99 In Aguilar v. Felton,100 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.”101

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 the state would reimburse.102 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.103 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 that contained safeguards against religious use of the tests was sustained even though the Court recognized the incidental benefit to the schools.104

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. Several different forms of assistance to students were at issue in Wolman v. Walter.105 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 use. But, though the Court adhered to its ruling permitting the states to lend secular textbooks used in the public schools to pupils attending religious schools,106 it declined to extend the precedent to permit the states to lend to pupils or their parents instructional materials and equipment, such as projectors, tape recorders, maps, globes and science kits, even though the materials and equipment were identical to those used in the public schools.107 Nor was a state permitted to pay the costs to religious schools of field trip transportation, such as it did to public school students.108

The Court’s later decisions, however, rejected the reasoning and overturned the results of several of these decisions. In two rulings, the Court reversed course with respect to the constitutionality of public school personnel’s providing educational services on the premises of pervasively sectarian schools. First, in Zobrest v. Catalina Foothills School District109 the Court held that the public subsidy of a sign-language interpreter for a deaf student attending a parochial school created no primary effect or entanglement problems. The payment did not relieve the school of an expense that it would otherwise have borne, the Court stated, and the interpreter had no role in selecting or editing the content of any of the lessons. Reviving the child benefit theory of its earlier cases, the Court wrote: “The service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as ‘disabled’ under the IDEA, without regard to the ‘sectarian-nonsectarian, or public-nonpublic nature’ of the school the child attends.”110

Second, and more pointedly, the Court in Agostini v. Felton111 overturned its decision in Aguilar v. Felton,112 which had struck down the Title I program as administered in New York City, as well as the analogous parts of its decisions in Meek v. Pittenger113 and Grand Rapids School District v. Ball.114 The assumptions on which those decisions had rested, the Court stated, had been “undermined” by its more recent decisions. Decisions such as Zobrest and Witters v. Washington Department of Social Services,115 it said, had repudiated the notions that the placement of a public employee in a sectarian school creates an “impermissible symbolic link” between government and religion, that “all government aid that directly aids the educational function of religious schools” is constitutionally forbidden, that public teachers in a sectarian school necessarily pose a serious risk of inculcating religion, and that “pervasive monitoring of [such] teachers is required.” The proper criterion under the primary effect prong of the Lemon test, the Court asserted, is religious neutrality, i. e., whether “aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis.”116 Finding the Title I program to meet that test, the Court concluded that “accordingly, we must acknowledge that Aguilar, as well as the portion of Ball addressing Grand Rapids’ Shared Time program, are no longer good law.”117

Later, in Mitchell v. Helms118 the Court abandoned the presumptions that religious elementary and secondary schools are so pervasively sectarian that they are constitutionally ineligible to participate in public aid programs directly benefiting their educational functions and that direct aid to such institutions must be subject to an intrusive and constitutionally fatal monitoring. At issue in the case was a federal program that distributed funds to local educational agencies to provide instructional materials and equipment, such as computer hardware and software, library books, movie projectors, television sets, VCRs, laboratory equipment, maps, and cassette recordings, to public and private elementary and secondary schools. Virtually identical programs had previously been held unconstitutional by the Court in Meek v. Pittenger119 and Wolman v. Walter.120 But in this case the Court overturned those decisions and held the program to be constitutional.

Mitchell had no majority opinion. The opinions of Justice Thomas, joined by Chief Justice Rehnquist and Justices Scalia and Kennedy, and of Justice O’Connor, joined by Justice Breyer, found the program constitutional. They agreed that to pass muster under the primary effect prong of the Lemon test direct public aid has to be secular in nature and distributed on the basis of religiously neutral criteria. They also agreed, in contrast to past rulings, that sectarian elementary and secondary schools should not be deemed constitutionally ineligible for direct aid on the grounds that their secular educational functions are “inextricably intertwined” with their religious educational functions, i. e., that they are pervasively sectarian. But their rationales for the program’s constitutionality then diverged. For Justice Thomas it was sufficient that the instructional materials were secular in nature and were distributed according to neutral criteria. It made no difference whether the schools used the aid for purposes of religious indoctrination or not. But that was not sufficient for Justice O’Connor. She adhered to the view that direct public aid has to be limited to secular use by the recipient institutions. She further asserted that a limitation to secular use could be honored by the teachers in the sectarian schools and that the risk that the aid would be used for religious purposes was not so great as to require an intrusive and entangling government monitoring.121

Justice Souter, joined by Justices Stevens and Ginsburg, dissented on the grounds that the Establishment Clause bars “aid supporting a sectarian school’s religious exercise or the discharge of its religious mission.” Adhering to the “substantive principle of no aid” first articulated in Everson, he contended that direct aid to pervasively sectarian institutions inevitably results in the diversion of the aid for purposes of religious indoctrination. He further argued that the aid in this case had been so diverted.

As the opinion upholding the program’s constitutionality on the narrowest grounds, Justice O’Connor’s provides the most current guidance on the standards governing the constitutionality of aid programs directly benefiting sectarian elementary and secondary schools.

The Court has similarly loosened the constitutional restrictions on public aid programs indirectly benefiting sectarian elementary and secondary schools. Initially, the Court in 1973 struck down substantially similar programs in New York and Pennsylvania providing for tuition reimbursement to parents of religious school children. 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 sent 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.122

New York had also enacted a separate program providing tax relief for low-income parents who did not qualify 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.’”123 Some difficulty, however, was experienced in distinguishing this program from the tax exemption approved in Walz.124

The Court rejected two subsidiary arguments in these cases. The first, in the New York case, was 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.125 The second subsidiary argument that the Court rejected was that, because the Pennsylvania 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.”126 The Court found the argument “thoroughly spurious,” adding, “The Equal Protection Clause has never been regarded as a bludgeon with which to compel a State to violate other provisions of the Constitution.”127

In 1983, the Court clarified the limits of the Nyquist holding. In Mueller v. Allen,128 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 subject129 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.130 Also important to the Court’s refusal to consider the alleged disproportionate benefits to parents of parochial school children 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.”131

A second factor important in Mueller, which had been present but not controlling in Nyquist, was that the financial aid was provided to the parents of schoolchildren rather than to the school. In the Court’s view, therefore, the aid was “attenuated” rather than direct; because it was “available only as a result of decisions of individual parents,” there was no “imprimatur 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.”132 Thus, Mueller apparently 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.

The Court confirmed this proposition three years later in Witters v. Washington Department of Social Services for the Blind.133 At issue was the constitutionality of a grant made by a state vocational rehabilitation program to a blind person who wanted to use the grant to attend a religious school and train for a religious ministry. Again, the Court emphasized that, in the vocational rehabilitation program “any aid provided is ‘made available without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited’” and “ultimately flows to religious institutions . . . only as a result of the genuinely independent and private choices of aid recipients.”134 The program, the Court stated, did not have the purpose of providing support for nonpublic, sectarian institutions; created no financial incentive for students to undertake religious education; and gave recipients “full opportunity to expend vocational rehabiiltation aid on wholly secular education.” “In this case,” the Court found, “the fact that the aid goes to individuals means that the decision to support religious education is made by the individual, not by the State.” Finally, the Court concluded, there was no evidence that “any significant portion of the aid expended under the Washington program as a whole will end up flowing to religious education.”135

In Zobrest v. Catalina Foothills School District136 the Court reaffirmed this line of reasoning. The case involved the provision of a sign language interpreter pursuant to the Individuals with Disabilities Education Act (IDEA)137 to a deaf high school student who wanted to attend a Catholic high school. In upholding the assistance as constitutional, the Court emphasized that “[t]he service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as ‘disabled’ under the IDEA, without regard to the ‘sectarian-nonsectarian, or public-nonpublic nature’ of the school the child attends.” Thus, it held that the presence of the interpreter in the sectarian school resulted not from a decision of the state but from the “private decision of individual parents.”138

Finally, in Zelman v. Simmons-Harris139 the Court reinterpreted the genuine private choice criterion in a manner that seems to render most voucher programs constitutional. At issue was an Ohio program that provided vouchers to the parents of children in failing public schools in Cleveland for use at private schools in the city. The Court upheld the program notwithstanding that, as in Nyquist, most of the schools at which the vouchers could be redeemed were religious and most of the voucher students attended such schools. But the Court found that the program nevertheless involved “true private choice.”140 “Cleveland schoolchildren,” the Court said, “enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.”141

In contrast to its rulings concerning direct aid to sectarian elementary and secondary schools, the Court, although closely divided at times, has from the start 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.142 The specific grants in question were for the 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.143 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 devoted to inculcating religion.144 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, and the construction grants were onetime rather than continuing.

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.”145 The colleges involved, though affiliated with religious institutions, were not shown to be too pervasively religious—no religious qualifications existed for faculty or student body, a substantial part of the student body was not of the religion of the affiliation, and state rules precluded the use of any state-financed project for religious activities.146

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.147 The plurality opinion found a secular purpose; found that the limitation of funding to secular activities was meaningful,148 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.149

Finally, in the first case since Bradfield v. Roberts150 to challenge the constitutionality of public aid to non-educational religious institutions, the Court in Bowen v. Kendrick,151 by a 5–4 vote, upheld the Adolescent Family Life Act (AFLA)152 against facial challenge. The Act permits direct grants to religious organizations for the 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 the delivery of services. All 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 to the cases involving aid to elementary and secondary schools.153 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].”154

At the time it was rendered, Bowen differed from the Court’s decisions concerning direct aid to sectarian elementary and secondary schools primarily in that it refused to presume that religiously affiliated social welfare entities are pervasively sectarian. That difference had the effect of giving greater constitutional latitude to public aid to such entities than was afforded direct aid to religious elementary and secondary schools. As noted above, the Court in its recent decisions eliminated the presumption that such religious schools are pervasively sectarian and has extended the same constitutional latitude to aid programs benefiting such schools as it gives to aid programs benefiting religiously affiliated social welfare programs.

Governmental Encouragement of Religion in Public Schools: Released Time.—Introduction of religious education into the public schools, one of Justice Rutledge’s “great drives,”155 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 . . . .”156 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.”157

Four years later, the Court upheld a different released-time program.158 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.”159 “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.”

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. The Court wrote: “We think that by using its public school system to encourage recitation of the Regents’ prayer, the State of New York has 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.”160 “Neither the fact that the prayer may be denomination-ally 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.”161

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.”162 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 literature163 and that to forbid the particular exercises was to choose a “religion of secularism” in their place.164 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.”165

In Wallace v. Jaffree,166 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,”167 and both Justices Powell and O’Connor in concurring opinions suggested that other state statutes authorizing moments of silence might pass constitutional muster.168

The school prayer decisions served as precedent for the Court’s holding in Lee v. Weisman169 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.170 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.”

In Santa Fe Independent School District v. Doe171 the Court held a school district’s policy permitting high school students to vote on whether to have an “invocation and/or prayer” delivered prior to home football games by a student elected for that purpose to violate the Establishment Clause. It found the policy to violate each of the tests it has formulated for Establishment Clause cases. The preference given for an “invocation” in the text of the school district’s policy, the long history of pre-game prayer led by a student “chaplain” in the school district, and the widespread perception that “the policy is about prayer,” the Court said, made clear that its purpose was not secular but was to preserve a popular state-sponsored religious practice in violation of the first prong of the Lemon test. Moreover, it said, the policy violated the coercion test by forcing unwilling students into participating in a religious exercise. Some students—the cheerleaders, the band, football players—had to attend, it noted, and others were compelled to do so by peer pressure. “The constitutional command will not permit the District ‘to exact religious conformity from a student as the price’ of joining her classmates at a varsity football game,” the Court held.172 Finally, it said, the speech sanctioned by the policy was not private speech but government-sponsored speech that would be perceived as a government endorsement of religion. The long history of pre-game prayer, the bias toward religion in the policy itself, the fact that the message would be “delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property”173 and over the school’s public address system, the Court asserted, all meant that the speech was not genuine private speech but would be perceived as “stamped with [the] school’s seal of approval.”174 The Court concluded that “[t]he policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events.”175

Governmental Encouragement of Religion in Public Schools: Curriculum Restriction.—In Epperson v. Arkansas,176 the Court struck down a state statute that 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.”177

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.”178 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.”179

Access of Religious Groups to Public 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 its facilities available to nonreligious student groups. In Widmar v. Vincent,180 the Court held that allowing student 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. Subsequently, the Court held that these principles apply to public secondary schools as well as to institutions of higher learning. In 1990, in Westside Community Board of Education v. Mergens,181 the Court upheld application of the Equal Access Act182 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.183 Justice O’Connor stated in a plurality opinion that “there is a crucial difference between government speech endorsing religion and private speech endorsing religion. We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.”184

Similarly, public schools may not rely on the Establishment Clause as grounds to discriminate against religious groups in after-hours use of school property otherwise available for non-religious social, civic, and recreational purposes. In Lamb’s Chapel v. Center Moriches School District,185 the Court held that a school district could not, consistent with the free speech clause, refuse to allow a religious group to use school facilities to show a film series on family life when the facilities were otherwise available for community use. “It discriminates on the basis of viewpoint,” the Court ruled, “to permit school property to be used for the presentation of all views about family issues and child-rearing except those dealing with the subject matter from a religious viewpoint.” In response to the school district’s claim that the Establishment Clause required it to deny use of its facilities to a religious group, the Court said that there was “no realistic danger” in this instance that “the community would think that the District was endorsing religion or any particular creed” and that such permission would satisfy the requirements of the Lemon test.186 Similarly, in Good News Club v. Milford Central School,187 the Court held the free speech clause to be violated by a school policy that barred a religious children’s club from meeting on school premises after school. Given that other groups teaching morals and character development to young children were allowed to use the school’s facilities, the exclusion, the Court said, “constitutes unconstitutional viewpoint discrimination.” Moreover, it said, the school had “no valid Establishment Clause interest” because permitting the religious club to meet would not show any favoritism toward religion but would simply “ensure neutrality.”

Finally, the Court has made clear that public colleges may not exclude student religious organizations from benefits otherwise provided to a full spectrum of student “news, information, opinion, entertainment, or academic communications media groups.” In Rosenberger v. Board of Visitors of the University of Virginia,188 the Court struck down a university policy that afforded a school subsidy to all student publications except religious ones. Once again, the Court held the denial of the subsidy to constitute viewpoint discrimination in violation of the free speech clause of the First Amendment. In response to the University’s argument that the Establishment Clause required it not to subsidize an enterprise that promotes religion, the Court emphasized that the forum created by the University’s subsidy policy had neither the purpose nor the effect of advancing religion and, because it was open to a variety of viewpoints, was neutral toward religion.

These cases make clear that the Establishment Clause does not necessarily trump the First Amendment’s protection of freedom of speech. In regulating private speech in a public forum, government may not justify discrimination against religious viewpoints as necessary to avoid creating an “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.189 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.190 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 churches for special favor; instead, the exemption applied to a broad category of associations having many common features and all dedicated to social betterment. Thus, churches as well as museums, hospitals, libraries, charitable organizations, professional associations, and the like, all nonprofit, and all having a beneficial and stabilizing influence in community life, were to be encouraged by being treated specially in the tax laws. The primary effect of the exemptions was not to aid religion; the primary effect was secular and any assistance to religion was merely incidental.191

For the second prong, the Court created a new test, the entanglement test,192 by which to judge the program. There was some entanglement whether there were exemptions or not, Chief Justice Burger continued, but with exemptions there was minimal involvement. But termination of exemptions would deeply involve government in the internal affairs of religious bodies, because evaluation of religious properties for tax purposes would be required and there would be tax liens and foreclosures and litigation concerning such matters.193

Although the general issue is now settled, it is to be expected that variations of the exemption upheld in Walz will present the Court with an opportunity to elaborate the field still further.194 For example, the Court determined that a sales tax exemption applicable only to religious publications constituted a violation of the Establishment Clause,195 and, on the other hand, that application of a general sales and use tax provision to religious publications violates neither the Establishment Clause nor the Free Exercise Clause.196

Exemption of Religious Organizations from Generally Applicable Laws.—The Civil Rights Act’s exemption of religious organizations from the prohibition against religious discrimination in employment197 does not violate the Establishment Clause when applied to a religious organization’s secular, nonprofit activities. In Corporation of the Presiding Bishop v. Amos,198 the Court held that a church-run gymnasium operated as a nonprofit facility open to the public could require that its employees be church members. Declaring that “there is ample room for accommodation of religion under the Establishment Clause,”199 the Court identified a legitimate purpose in freeing a religious organization from the burden of predicting which of its activities a court will consider to be secular and which religious. The rule applying across-the-board to nonprofit activities and thereby “avoid[ing] . . . intrusive inquiry into religious belief” also serves to lessen entanglement of church and state.200 The exemption itself does not have a principal effect of advancing religion, the Court concluded, but merely allows churches to advance religion.201

Sunday Closing Laws.—The history of Sunday Closing Laws goes back into United States colonial history and far back into English history.202 Commonly, the laws require the observance of the Christian Sabbath as a day of rest, although in recent years they have tended to become honeycombed with exceptions. The Supreme Court rejected an Establishment Clause challenge to Sunday Closing Laws in McGowan v. Maryland.203 The Court acknowledged that historically the laws had a religious motivation and were designed to effectuate concepts of Christian theology. However, “[i]n light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is not difficult to discern that as presently written and administered, most of them, at least, are of a secular rather than of a religious character, and that presently they bear no relationship to establishment of religion. . . .”204 “[T]he fact that this [prescribed day of rest] is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and State.”205 The choice of Sunday as the day of rest, although originally religious, now reflected simple legislative inertia or recognition that Sunday was a traditional day for the choice.206 Valid secular reasons existed for not simply requiring one day of rest and leaving to each individual to choose the day, reasons of ease of enforcement and of assuring a common day in the community for rest and leisure.207 Later, a state statute mandating that employers honor the Sabbath day of the employee’s choice was held invalid as having the primary effect of promoting religion by weighing the employee’s Sabbath choice over all other interests.208

Conscientious Objection.—Historically, Congress has provided for alternative service for men who had religious scruples against participating in either combat activities or in all forms of military activities; the fact that Congress chose to draw the line of exemption on the basis of religious belief confronted the Court with a difficult constitutional question, which, however, the Court chose to avoid by a somewhat disingenuous interpretation of the statute.209 In Gillette v. United States,210 a further constitutional problem arose in which the Court did squarely confront and validate the congressional choice. Congress had restricted conscientious objection status to those who objected to “war in any form” and the Court conceded that there were religious or conscientious objectors who were not opposed to all wars but only to particular wars based upon evaluation of a number of factors by which the “justness” of any particular war could be judged; “properly construed,” the Court said, the statute did draw a line relieving from military service some religious objectors while not relieving others.211 Purporting to apply the secular purpose and effect test, the Court looked almost exclusively to purpose and hardly at all to effect. Although it is not clear, the Court seemed to require that a classification must be religiously based “on its face”212 or lack any “neutral, secular basis for the lines government has drawn”213 in order that it be held to violate the Establishment Clause. The classification here was not religiously based “on its face,” and served “a number of valid purposes having nothing to do with a design to foster or favor any sect, religion, or cluster of religions.”214 These purposes, related to the difficulty in separating sincere conscientious objectors to particular wars from others with fraudulent claims, included the maintenance of a fair and efficient selective service system and protection of the integrity of democratic decision-making.215

Regulation of Religious Solicitation.—Although the solicitation cases have generally been decided under the free exercise or free speech clauses,216 in one instance the Court, intertwining establishment and free exercise principles, voided a provision in a state charitable solicitations law that required only those religious organizations that received less than half their total contributions from members or affiliated organizations to comply with the registration and reporting sections of the law.217 Applying strict scrutiny equal protection principles, the Court held that, by distinguishing between older, well-established churches that had strong membership financial support and newer bodies lacking a contributing constituency or that may favor public solicitation over general reliance on financial support from the members, the statute granted denominational preference forbidden by the Establishment Clause.218

Religion in Governmental Observances.—The practice of opening legislative sessions with prayers by paid chaplains was upheld in Marsh v. Chambers,219 a case involving prayers in the Nebraska legislature. The Court relied almost entirely on historical practice. Congress had paid a chaplain and opened sessions with prayers for almost 200 years; the fact that Congress had continued the practice after considering constitutional objections in the Court’s view strengthened rather than weakened the historical argument. Similarly, the practice was well rooted in Nebraska and in most other states. Most importantly, the First Amendment had been drafted in the First Congress with an awareness of the chaplaincy practice, and this practice was not prohibited or discontinued. The Court did not address the lower court’s findings,220 amplified in Justice Brennan’s dissent, that each aspect of the Lemon v. Kurtzman tripartite test had been violated. Instead of constituting an application of the tests, therefore, Marsh can be read as representing an exception to their application.221

The Court likewise upheld the use of legislative prayers in the context of a challenge to the use of sectarian prayers to open a town meeting. In Town of Greece v. Galloway,222 the Court considered whether such legislative prayers needed to be “ecumenical” and “inclusive.” The challenge arose when the upstate New York Town of Greece recruited local clergy, who were almost exclusively Christian, to deliver prayers at monthly town board meetings. Basing its holding largely on the nation’s long history of using prayer to open legislative sessions as a means to lend gravity to the occasion and to reflect long-held values, the Court concluded that the prayer practice in the Town of Greece fit within this tradition.223 The Court also voiced pragmatic concerns with government scrutiny respecting the content of legislative prayers.224 As a result, after Town of Greece, absent a “pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose,” First Amendment challenges based solely on the content of a legislative prayer appear unlikely to be successful.225 Moreover, absent situations in which a legislative body discriminates against minority faiths, governmental entities that allow for sectarian legislative prayer do not appear to violate the Constitution.226

Religious Displays on Government Property.—A different form of governmentally sanctioned religious observance—inclusion of religious symbols in governmentally sponsored holiday displays—was twice before the Court, with varying results. In 1984, in Lynch v. Donnelly,227 the Court found that the Establishment Clause was not violated by inclusion of a Nativity scene (creche) in a city’s Christmas display; in 1989, in Allegheny County v. Greater Pittsburgh ACLU,228 inclusion of a creche in a holiday display was found to constitute a violation. Also at issue in Allegheny County was inclusion of a menorah in a holiday display; here the Court found no violation. The setting of each display was crucial to the different results in these cases, the determinant being whether the Court majority believed that the overall effect of the display was to emphasize the religious nature of the symbols, or whether instead the emphasis was primarily secular. Perhaps equally important for future cases, however, was the fact that the four dissenters in Allegheny County would have upheld both the creche and menorah displays under a more relaxed, deferential standard.

Chief Justice Burger’s opinion for the Court in Lynch began by expanding on the religious heritage theme exemplified by Marsh; other evidence that “ ‘[w]e are a religious people whose institutions presuppose a Supreme Being’”229 was supplied by reference to the national motto “In God We Trust,” the affirmation “one nation under God” in the pledge of allegiance, and the recognition of both Thanksgiving and Christmas as national holidays. Against that background, the Court then determined that the city’s inclusion of the creche in its Christmas display had a legitimate secular purpose in recognizing “the historical origins of this traditional event long recognized as a National Holiday,”230 and that its primary effect was not to advance religion. The benefit to religion was called “indirect, remote, and incidental,” and in any event no greater than the benefit resulting from other actions that had been found to be permissible, such as the provision of transportation and textbooks to parochial school students, various assistance to church-supported colleges, Sunday closing laws, and legislative prayers.231 The Court also reversed the lower court’s finding of entanglement based only on “political divisiveness.”232

Allegheny County was also decided by a 5–4 vote, Justice Blackmun writing the opinion of the Court on the creche issue, and there being no opinion of the Court on the menorah issue.233 To the majority, the setting of the creche was distinguishable from that in Lynch. The creche stood alone on the center staircase of the county courthouse, bore a sign identifying it as the donation of a Roman Catholic group, and also had an angel holding a banner proclaiming “Gloria in Exclesis Deo.” Nothing in the display “detract[ed] from the creche’s religious message,” and the overall effect was to endorse that religious message.234 The menorah, on the other hand, was placed outside a government building alongside a Christmas tree and a sign saluting liberty, and bore no religious messages. To Justice Blackmun, this grouping merely recognized “that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status”;235 to concurring Justice O’Connor, the display’s “message of pluralism” did not endorse religion over nonreligion even though Chanukah is primarily a religious holiday and even though the menorah is a religious symbol.236 The dissenters, critical of the endorsement test proposed by Justice O’Connor and of the three-part Lemon test, would instead distill two principles from the Establishment Clause: “government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact ‘establishes a state religion or religious faith, or tends to do so.’”237

In Capitol Square Review Bd. v. Pinette,238 the Court distinguished privately sponsored from governmentally sponsored religious displays on public property. There the Court ruled that Ohio violated free speech rights by refusing to allow the Ku Klux Klan to display an unattended cross in a publicly owned plaza outside the Ohio Statehouse. Because the plaza was a public forum in which the state had allowed a broad range of speakers and a variety of unattended displays, the state could regulate the expressive content of such speeches and displays only if the restriction was necessary, and narrowly drawn, to serve a compelling state interest. The Court recognized that compliance with the Establishment Clause can be a sufficiently compelling reason to justify content-based restrictions on speech, but saw no need to apply this principle when permission to display a religious symbol is granted through the same procedures, and on the same terms, required of other private groups seeking to convey non-religious messages.

Displays of the Ten Commandments on government property occasioned two decisions in 2005. As in Allegheny County, a closely divided Court determined that one display violated the Establishment Clause and one did not. And again, context and imputed purpose made the difference. The Court struck down display of the Ten Commandments in courthouses in two Kentucky counties,239 but held that a display on the grounds of the Texas State Capitol was permissible.240 The displays in the Kentucky courthouses originally “stood alone, not part of an arguably secular display.”241 Moreover, the history of the displays revealed “a predominantly religious purpose” that had not been eliminated by steps taken to give the appearance of secular objectives.242

There was no opinion of the Court in Van Orden. Justice Breyer, the swing vote in the two cases,243 distinguished the Texas Capitol grounds display from the Kentucky courthouse displays. In some contexts, the Ten Commandments can convey a moral and historical message as well as a religious one, the Justice explained. Although it was “a borderline case” turning on “a practical matter of degree,” the capitol display served “a primarily nonreligious purpose.”244 The monument displaying the Ten Commandments was one of 17 monuments and 21 historical markers on the Capitol grounds; it was paid for by a private, civic, and primarily secular organization; and it had been in place, unchallenged, for 40 years. Under the circumstances, Justice Breyer thought that few would be likely to understand the monument to represent an attempt by government to favor religion.245

The Court has also considered an Establishment Clause challenge to the display of a Latin Cross—erected to honor American soldiers who died in World War I—on federal land located in a remote section of the Mojave Desert.246 The legal proceedings leading up to the decision, however, were complicated by congressional attempts to influence the final disposition of the case, including the attempted transfer of the federal land in question to private hands.247 As a result, a splintered Court failed to reach the merits of the underlying challenge, and instead remanded the case for further consideration.248

Miscellaneous.—In Larkin v. Grendel’s Den,249 the Court held that the Establishment Clause is violated by a delegation of governmental decisionmaking to churches. At issue was a state statute permitting any church or school to block issuance of a liquor license to any establishment located within 500 feet of the church or school. Although the statute had a permissible secular purpose of protecting churches and schools from the disruptions often associated with liquor establishments, the Court indicated that these purposes could be accomplished by other means, e. g., an outright ban on liquor outlets within a prescribed distance, or the vesting of discretionary authority in a governmental decisionmaker required to consider the views of affected parties. However, the conferral of a veto authority on churches had a primary effect of advancing religion both because the delegation was standardless (thereby permitting a church to exercise the power to promote parochial interests), and because “the mere appearance of a joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some.”250 Moreover, the Court determined, because the veto “enmeshes churches in the exercise of substantial governmental powers,” it represented an entanglement offensive to “the core rationale underlying the Establishment Clause [—] preventing ‘a fusion of governmental and religious functions.’”251

Using somewhat similar reasoning, the Court in Board of Education of Kiryas Joel Village v. Grumet,252 invalidated a New York law creating a special school district for an incorporated village composed exclusively of members of one small religious sect. The statute failed “the test of neutrality,” the Court concluded, since it delegated power “to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism.” It was the “anomalously case-specific nature of the legislature’s exercise of authority” that left the Court “without any direct way to review such state action” for conformity with the neutrality principle. Because the village did not receive its governmental authority simply as one of many communities eligible under a general law, the Court explained, there was no way of knowing whether the legislature would grant similar benefits on an equal basis to other religious and nonreligious groups.

55 Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970). “Two great drives are constantly in motion to abridge, in the name of education, the complete division of religion and civil authority which our forefathers made. One is to introduce religious education and observances into the public schools. The other, to obtain public funds for the aid and support of various private religious schools . . . . In my opinion both avenues were closed by the Constitution.” Everson v. Board of Education, 330 U.S. 1, 63 (1947) (Justice Rutledge dissenting).

56 Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 709 (1994) (citing Torcaso v. Watkins, 367 U.S. 488, 492–95 (1961)).

57 For a discussion of standing to sue in Establishment Clause cases, see Article III, Taxpayer Suits, supra.

58 Bradfield v. Roberts, 175 U.S. 291 (1899). Cf. Abington School District v. Schempp, 374 U.S. 203, 246 (1963) (Justice Brennan concurring). In Cochran v. Louisiana Board of Education, 281 U.S. 370 (1930), a state program furnishing textbooks to parochial schools was sustained under a due process attack without reference to the First Amendment. See also Quick Bear v. Leupp, 210 U.S. 50 (1908) (statutory limitation on expenditures of public funds for sectarian education does not apply to treaty and trust funds administered by the government for Indians).

59 Everson v. Board of Education, 330 U.S. 1, 15–16 (1947).

60 330 U.S. at 16.

61 330 U.S. 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).

62 See also Zorach v. Clauson, 343 U.S. 306, 312–13 (1952) (upholding program allowing public schools to excuse students to attend religious instruction or exercises).

63 Board of Education v. Allen, 392 U.S. 236 (1968).

64 See discussion under “Court Tests Applied to Legislation Affecting Religion,” supra.

65 392 U.S. at 243–44 (1968).

66 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 773 (1973). See also id. at 805 (Chief Justice Burger dissenting), 812–13 (Justice Rehnquist dissenting), 813 (Justice White dissenting). See also Wolman v. Walter, 433 U.S. 229, 240 (1977) (plurality opinion); Committee for Public Educ. and Religious Liberty v. Regan, 444 U.S. 646, 653–54 (1980), and id. at 665 (Justice Blackmun dissenting).

67 Grand Rapids School District v. Ball, 473 U.S. 373, 385 (1985).

68 Lemon v. Kurtzman, 403 U.S. 602 (1971); Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973); Mitchell v. Helms, 530 U.S. 793 (2000).

69 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973).

70 Wolman v. Walter, 433 U.S. 229 (1977).

71 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973), and Sloan v. Lemon, 413 U.S. 825 (1973).

72 Mueller v. Allen, 463 U.S. 388, 397–399 (1983).

73 Witters v. Washington Dep’t of Social Services, 474 U.S. 481 (1986). In this decision the Court also cited as important the factor that the program was not likely to provide “any significant portion of the aid expended under the . . . program” for religious education. Id. at 488.

74 Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993).

75 Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

76 See, e.g., Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973) (grants for the maintenance and repair of sectarian school facilities); Meek v. Pittenger, 421 U.S. 349 (1975) (loan of secular instructional materials and equipment); Grand Rapids School Dist. v. Bal, 473 U.S. 373 (1985) (hiring of parochial school teachers to provide after-school instruction to the students attending such schools).

77 See, e.g., Lemon v. Kurtzman, 403 U.S. 602 (1971) (subsidies for teachers of secular subjects) and Aguilar v. Felton, 473 U.S. 402 (1985) (provision of remedial and enrichment services by public school teachers to eligible children attending sectarian elementary and secondary schools on the premises of those schools).

78 See cases cited in the preceding two footnotes.

79 Bradfield v. Roberts, 175 U.S. 291 (1899) (public subsidy of the construction of a wing of a Catholic hospital on condition that it be used to provide care for the poor upheld); Tilton v. Richardson, 403 U.S. 672 (1971) (program of grants to colleges, including religiously affiliated ones, for the construction of academic buildings upheld); Roemer v. Maryland Bd. of Pub. Works, 426 U.S. 736 (1976) (program of general purpose grants to colleges in the state, including religiously affiliated ones, upheld); and Bowen v. Kendrick, 487 U.S. 589 (1988) (program of grants to public and private nonprofit organizations, including religious ones, for the prevention of adolescent pregnancies upheld).

80 521 U.S. 203 (1997).

81 530 U.S. 793 (2000).

82 473 U.S. 402 (1985).

83 421 U.S. 349 (1975).

84 433 U.S. 229 (1977).

85 473 U.S. 373 (1985).

86 521 U.S. 203 (1994).

87 530 U.S. 793 (2000).

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

89 403 U.S. 602 (1971).

90 403 U.S. at 619.

91 403 U.S. at 619.

92 Only Justice White dissented. 403 U.S. at 661. In Lemon v. Kurtzman, 411 U.S. 192 (1973), the Court held that a 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).

93 421 U.S. 349 (1975). Chief Justice Burger and Justices Rehnquist and White dissented. Id. at 385, 387.

94 421 U.S. 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, 433 U.S. at 262 (Justice Powell concurring in part and dissenting in part).

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

96 473 U.S. 373 (1985).

97 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.

98 The vote on this “Community Education” program was 7–2, Chief Justice Burger and Justice O’Connor concurring with the “Shared Time” majority.

99 473 U.S. at 397.

100 473 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.

101 473 U.S. at 413.

102 Levitt v. Committee for Public Educ. & Religious Liberty, 413 U.S. 472 (1973). Justice White dissented, id. at 482. The most expensive service to be reimbursed for nonpublic schools was the “administration, grading and the compiling and reporting of the results of tests and examinations.” Id. at 474–75. In New York v. Cathedral Academy, 434 U.S. 125 (1977), the Court struck down a new statutory program entitling private schools to obtain reimbursement for expenses incurred during the school year in which the prior program was voided in Levitt.

103 Committee for Pub. Educ. and 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.

104 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).

105 433 U.S. 229 (1977). The Court deemed the situation in which these services were performed and the nature of the services to occasion little danger of aiding religious functions and thus requiring little supervision that would give rise to entanglement. All the services fell “within that class of general welfare services for children that may be provided by the States regardless of the incidental benefit that accrues to church-related schools.” Id. at 243, quoting Meek v. Pittenger, 421 U.S. 349, 371 n.21 (1975). Justice Brennan would have voided all the programs because, considered as a whole, the amount of assistance was so large as to constitute assistance to the religious mission of the schools. 433 U.S. at 255. Justice Marshall would have approved only the diagnostic services, id. at 256, while Justice Stevens would generally approve closely administered public health services. Id. at 264.

106 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; although 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 later 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.

107 433 U.S. at 248–51. See also id. at 263–64 (Justice Powell concurring in part and dissenting in part).

108 433 U.S. at 252–55. Justice Powell joined the other three dissenters who would have approved this expenditure. Id. at 264.

109 509 U.S. 1 (1993).

110 509 U.S. at 10.

111 521 U.S. 203 (1997).

112 473 U.S. 402 (1985).

113 421 U.S. 349 (1975).

114 473 U.S. 373 (1985).

115 474 U.S. 481 (1986).

116 In Agostini, the Court nominally eliminated entanglement as a separate prong of the Lemon test. “[T]he factors we use to assess whether an entanglement is ‘excessive,’” the Court stated, “are similar to the factors we use to examine ‘effect.’” “Thus,” it concluded, “it is simplest to recognize why entanglement is significant and treat it—as we did in Walz—as an aspect of the inquiry into a statute’s effect.” 521 U.S. at 232, 233.

117 Justice Souter, joined by Justices Stevens and Ginsburg, dissented from the Court’s ruling, contending that the Establishment Clause mandates a “flat ban on [the] subsidization” of religion (521 U.S. at 243) and that the Court’s contention that recent cases had undermined the reasoning of Aguilar was a “mistaken reading” of the cases. Id. at 248. Justice Breyer joined in the second dissenting argument.

118 530 U.S. 793 (2000).

119 421 U.S. 349 (1975).

120 433 U.S. 229 (1977).

121 Justice O’Connor also cited several other factors as “sufficient” to ensure the program’s constitutionality, without saying whether they were “constitutionally necessary”—that the aid supplemented rather than supplanted the school’s educational functions, that no funds ever reached the coffers of the sectarian schools, and that there were various administrative regulations in place providing for some degree of monitoring of the schools’ use of the aid.

122 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 789–798 (1973) (New York); Sloan v. Lemon, 413 U.S. 825 (1973) (Pennsylvania). The Court distinguished Everson and Allen on the grounds that in those cases the aid was given to all children and their parents and that the aid was in any event religiously neutral, so that any assistance to religion was purely incidental. 413 U.S. at 781–82. Chief Justice Burger thought that Everson and Allen were controlling. Id. at 798.

123 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 790–91 (1973).

124 413 U.S. at 791–94. Principally, Walz was said to be different because of the longstanding nature of the property tax exemption it dealt with, because the Walz exemption was granted in the spirit of neutrality whereas the tax credit under consideration was not, and the fact that the Walz exemption promoted less entanglement whereas the credit would promote more.

125 413 U.S. at 788–89. But cf. Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (Free Exercise Clause “affirmatively mandates accommodation, not merely tolerance, of all religions”).

126 Sloan v. Lemon, 413 U.S. 825, 834 (1973).

127 413 U.S. at 834. In any event, the Court sustained the district court’s refusal to sever the program and save that portion as to children attending nonsectarian schools on the basis that, because so large a portion of the children benefited 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.

128 463 U.S. 388 (1983).

129 463 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 783 n.38.

130 463 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.

131 463 U.S. at 402.

132 463 U.S. at 399.

133 474 U.S. 481 (1986).

134 474 U.S. at 487.

135 474 U.S. at 488.

136 509 U.S. 1 (1993).

137 20 U.S.C. §§ 1400 et seq.

138 509 U.S. at 10.

139 536 U.S. at 639 (2002).

140 536 U.S. at 653.

141 536 U.S. at 655–56.

142 Tilton v. Richardson, 403 U.S. 672 (1971). This was a 5–4 decision.

143 Because such buildings would still have substantial value after twenty years, the Court found that a religious use then would be an unconstitutional aid to religion, and it struck down the period of limitation. 403 U.S. at 682–84.

144 It was no doubt true, Chief Justice Burger conceded, that construction grants to religious-related colleges did in some measure benefit religion, because 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.” 403 U.S. at 679.

145 Hunt v. McNair, 413 U.S. 734, 743 (1973).

146 413 U.S. at 743–44. 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.

147 Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976). Justice Blackmun’s plurality opinion was joined only by Chief Justice Burger and Justice Powell. Justices White and Rehnquist concurred on the basis of secular purpose and no primary religious benefit, rejecting entanglement. Id. at 767. Four justices dissented.

148 426 U.S. at 755. In some of the schools mandatory religion courses were taught, the significant factor in Justice Stewart’s view, id. at 773, but overweighed by other factors in the plurality’s view.

149 426 U.S. at 755–66. 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 occurred in several subsequent decisions. First, the Court summarily affirmed 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). Second, 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. Third, in Rosenberger v. The Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), the Court held that a public university cannot exclude a student religious publication from a program subsidizing the printing costs of all other student publications. The Court said the fund was essentially a religiously neutral subsidy promoting private student speech without regard to content.

150 175 U.S. 291 (1899).

151 487 U.S. 589 (1988).

152 Pub. L. 97–35, 95 Stat. 578 (1981), codified at 42 U.S.C. §§ 300z et seq.

153 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.

154 487 U.S. at 621.

155 Everson v. Board of Education, 330 U.S. 1, 63 (Justice Rutledge dissenting) (quoted under “Establishment of Religion,” supra).

156 Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 209–10 (1948).

157 333 U.S. at 211.

158 Zorach v. Clauson, 343 U.S. 306 (1952). Justices Black, Frankfurter, and Jackson dissented. Id. at 315, 320, 323.

159 343 U.S. 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”).

160 Engel v. Vitale, 370 U.S. 421, 424, 425 (1962).

161 370 U.S. 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.

162 Abington School Dist. v. Schempp, 374 U.S. 203, 223 (1963). “[T]he States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord’s Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the participation of teachers employed in those schools. None of these factors, other than compulsory school attendance, was present in the program upheld in Zorach v. Clausen.” Id.

163 374 U.S. at 223–24. The Court thought the exercises were clearly religious.

164 374 U.S. 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, 343 U.S. at 314. “We do not agree, however, that this decision in any sense has that effect.”

165 374 U.S. at 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, on the grounds the Ten Commandments are “undeniably a sacred text” and the “pre-eminent purpose” of the posting requirement was “plainly religious in nature”).

166 472 U.S. 38 (1985).

167 472 U.S. at 59.

168 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.

169 505 U.S. 577 (1992).

170 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. 505 U.S. at 596–97. This distinction was again relied on by a subject slip op. at 18–24 (2014), in a decision upholding the use of legislative prayer at a town board meeting. Justice Kennedy, on behalf of himself and Chief Justice Roberts and Justice Alito, distinguished the situation in Lee, in that with legislative prayer, at least in the context of Town of Greece, those claiming offense at the prayer were “mature adults” who are not “susceptible to religious indoctrination or peer pressure” and were free to leave a town meeting during the prayer without any adverse implications. Id. at 22–23 (quoting Marsh, 463 U.S. at 792).

171 530 U.S. 290 (2000).

172 530 U.S. at 312.

173 530 U.S. at 307.

174 530 U.S. at 308.

175 530 U.S. at 317.

176 393 U.S. 97 (1968).

177 393 U.S. at 109.

178 482 U.S. 578, 591 (1987).

179 482 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 592.

180 454 U.S. 263, 270–75 (1981).

181 496 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 secondary school students are also able to recognize that a school policy allowing student religious groups to meet in school facilities is one of neutrality toward religion. 496 U.S. at 252.

182 Pub. L. 98–377, title VIII, 98 Stat. 1302 (1984); 20 U.S.C. §§ 4071–74. The Act requires secondary schools that receive federal financial assistance to allow student religious groups to meet in school facilities during noncurricular time to the same extent as other student groups and had been enacted by Congress in 1984 to apply the Widmar principles to the secondary school setting.

183 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.

184 496 U.S. at 242.

185 508 U.S. 384 (1993).

186 508 U.S. at 395. Concurring opinions by Justice Scalia, joined by Justice Thomas, and by Justice Kennedy, criticized the Court’s reference to Lemon. Justice Scalia lamented that “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.” Id. at 398. Justice White pointedly noted, however, that “Lemon . . . has not been overruled.” Id at 395 n.7.

187 533 U.S. 98 (2001).

188 515 U.S. 819 (1995).

189 “If religious institutions benefit, it is in spite of rather than because of their religious character. For religious institutions simply share benefits which government makes generally available to educational, charitable, and eleemosynary groups.” Abington School Dist. v. Schempp, 374 U.S. 203, 301 (1963) (concurring opinion).

190 Walz v. Tax Comm’n, 397 U.S. 664 (1970). Justice Douglas dissented.

191 397 U.S. at 672–74.

192 See discussion under “Court Tests Applied to Legislation Affecting Religion,” supra.

193 397 U.S. at 674–76.

194 For example, the Court subsequently accepted for review a case concerning property tax exemption for church property used as a commercial parking lot, but state law was changed, denying exemption for purely commercial property and requiring a pro rata exemption for mixed use, and the Court remanded so that the change in the law could be considered. Diffenderfer v. Central Baptist Church, 404 U.S. 412 (1972).

195 Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989).

196 Jimmy Swaggart Ministries v. California Bd. of Equalization, 493 U.S. 378 (1990). Similarly, there is no constitutional impediment to straightforward application of 26 U.S.C. § 170 to disallow a charitable contribution for payments to a church found to represent a reciprocal exchange rather than a contribution or gift. Hernandez v. Commissioner, 490 U.S. 680 (1989).

197 Section 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2, makes it unlawful for any employer to discriminate in employment practices on the basis of an employee’s religion. Section 702, 42 U.S.C. § 2000e–1, exempts from the prohibition “a religious corporation . . . with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation . . . of its activities.”

198 483 U.S. 327 (1987).

199 483 U.S. at 338.

200 483 U.S. at 339.

201 “For a law to have forbidden ‘effects’ . . . it must be fair to say that the government itself has advanced religion through its own activities and influence.” 483 U.S. at 337. Justice O’Connor’s concurring opinion suggests that practically any benefit to religion can be “recharacterized as simply ‘allowing’ a religion to better advance itself,” and that a “necessary second step is to separate those benefits to religion that constitutionally accommodate the free exercise of religion from those that provide unjustifiable awards of assistance to religious organizations.” Id. at 347, 348.

202 The history is recited at length in the opinion of the Court in McGowan v. Maryland, 366 U.S. 420, 431–40 (1961), and in Justice Frankfurter’s concurrence. Id. at 459, 470–551 and appendix.

203 366 U.S. 420 (1961). Decision on the establishment question in this case also controlled the similar decision on that question in Two Guys from Harrison-Allentown v. McGinley, 366 U.S. 582 (1961), Braunfeld v. Brown, 366 U.S. 599 (1961), and Gallagher v. Crown Kosher Super Market, 366 U.S. 617 (1961). On free exercise in Sunday Closing cases, see “Free Exercise Exemption From General Governmental Requirements,” infra.

204 McGowan v. Maryland, 366 U.S. 420, 444 (1961).

205 366 U.S. at 445.

206 366 U.S. at 449–52.

207 366 U.S. at 449–52. Justice Frankfurter, with whom Justice Harlan concurred, arrived at the same conclusions by a route that did not require approval of Everson v. Board of Education, from which he had dissented.

208 Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985).

209 In United States v. Seeger, 380 U.S. 163 (1965), a unanimous Court construed the language of the exemption limiting the status to those who by “religious training and belief” (that is, those who believed in a “Supreme Being”), to mean that a person must have some belief which occupies in his life the place or role which the traditional concept of God occupies in the orthodox believer. After the “Supreme Being” clause was deleted, a plurality in Welsh v. United States, 398 U.S. 333 (1970), construed the religion requirement as inclusive of moral, ethical, or religious grounds. Justice Harlan concurred on constitutional grounds, believing that the statute was clear that Congress had intended to restrict conscientious objection status to those persons who could demonstrate a traditional religious foundation for their beliefs and that this was impermissible under the Establishment Clause. Id. at 344. The dissent by Justices White and Stewart and Chief Justice Burger rejected both the constitutional and the statutory basis. 398 U.S. at 367.

210 401 U.S. 437 (1971).

211 401 U.S. at 449.

212 401 U.S. at 450.

213 401 U.S. at 452.

214 401 U.S. at 452.

215 401 U.S. at 452–60.

216 See discussion under “Door-to-Door Solicitation and Charitable Solicitation,” infra.

217 Larson v. Valente, 456 U.S. 228 (1982). Two Justices dissented on the merits, id. at 258 (Justices White and Rehnquist), while two other Justices dissented on a standing issue. Id. at 264 (Chief Justice Burger and Justice O’Connor).

218 456 U.S. at 246–51. Compare Heffron v. ISKCON, 452 U.S. 640, 652–53 (1981), and id. at 659 n.3 (Justice Brennan, concurring in part and dissenting in part) (dealing with a facially neutral solicitation rule distinguishing between religious groups that have a religious tenet requiring peripatetic solicitation and those who do not).

219 463 U.S. 783 (1983). Marsh was a 6–3 decision, with Chief Justice Burger’s opinion for the Court being joined by Justices White, Blackmun, Powell, Rehnquist, and O’Connor, and with Justices Brennan, Marshall, and Stevens dissenting.

220 Chambers v. Marsh, 675 F.2d 228 (8th Cir. 1982).

221 School prayer cases were distinguished on the basis that legislators, as adults, are presumably less susceptible than are schoolchildren to religious indoctrination and peer pressure, 463 U.S. at 792, but there was no discussion of the tests themselves.

222 572 U.S. ___, No. 12–696, slip op. (2014).

223 Id. at 9–18. The Court did suggest that a pattern of prayers that over time “denigrate, proselytize, or betray an impermissible government purpose” could establish a constitutional violation. Id. at 17.

224 Id. at 12 (“To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice . . . .”).

225 Id. at 17.

226 Id.

227 465 U.S. 668 (1984). Lynch was a 5–4 decision, with Justice Blackmun, who voted with the majority in Marsh, joining the Marsh dissenters in this case. Again, Chief Justice Burger wrote the opinion of the Court, joined by the other majority Justices, and again Justice Brennan wrote a dissent, joined by the other dissenters. A concurring opinion was added by Justice O’Connor, and a dissenting opinion was added by Justice Blackmun.

228 492 U.S. 573 (1989).

229 465 U.S. at 675, quoting Zorach v. Clausen, 343 U.S. 306, 313 (1952).

230 465 U.S. at 680.

231 465 U.S. at 681–82. Although the extent of benefit to religion was an important factor in earlier cases, it was usually balanced against the secular effect of the same practice rather than the religious effects of other practices.

232 465 U.S. at 683–84.

233 Justice O’Connor, who had concurred in Lynch, was the pivotal vote, joining subject Kennedy, not on the Court in 1984, replaced Chief Justice Burger and Justice Powell in voting to uphold the creche display; Justice Kennedy authored the dissenting opinion, joined by the other three.

234 492 U.S. at 598, 600.

235 492 U.S. at 616.

236 492 U.S. at 635.

237 492 U.S. at 659.

238 515 U.S. 753 (1995). The Court was divided 7–2 on the merits of Pinette, a vote that obscured continuing disagreement over analytical approach. The portions of Justice Scalia’s opinion that formed the opinion of the Court were joined by Chief Justice Rehnquist and by Justices O’Connor, Kennedy, Souter, Thomas, and Breyer. A separate part of Justice Scalia’s opinion, joined only by the Chief Justice and by Justices Kennedy and Thomas, disputed the assertions of Justices O’Connor, Souter, and Breyer that the “endorsement” test should be applied. Dissenting Justice Stevens thought that allowing the display on the Capitol grounds did carry “a clear image of endorsement” (id. at 811), and Justice Ginsburg’s brief opinion seemingly agreed with that conclusion.

239 McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005).

240 Van Orden v. Perry, 545 U.S. 677 (2005).

241 545 U.S. at 868. The Court in its previous Ten Commandments case, Stone v. Graham, 449 U.S. 39, 41 (1980) (invalidating display in public school classrooms) had concluded that the Ten Commandments are “undeniably a sacred text,” and the 2005 Court accepted that characterization. McCreary, 545 U.S. at 859.

242 545 U.S. at 881. An “indisputable” religious purpose was evident in the resolutions authorizing a second display, and the Court characterized statements of purpose accompanying authorization of the third displays as “only . . . a litigating position.” 545 U.S. at 870, 871.

243 Only Justice Breyer voted to invalidate the courthouse displays and uphold the capitol grounds display. The other eight Justices were split evenly, four (Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas) voting to uphold both displays, and four (Justices Stevens, O’Connor, Souter, and Ginsburg) voting to invalidate both.

244 545 U.S. at 700, 704, 703.

245 545 U.S. at 702. In Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125, 1140 (2009), Justice Scalia, in a concurring opinion joined by Justice Thomas, wrote that, “[e]ven accepting the narrowest reading of the narrowest opinion necessary to the judgment in Van Orden,” he would find that a Ten Commandments monument displayed in a Utah public park for 38 years amidst 15 permanent displays would not violate the Establishment Clause, even though the monument constituted government speech. The majority opinion did not consider the question, but decided the case on free-speech grounds. See The Public Forum, infra.

246 Salazar v. Buono, 559 U.S. ___, No. 08–472, slip op. (2010).

247 During the course of the litigation, Congress variously passed an appropriations bill forbidding the use of governmental funds to remove the cross, designating the cross and its adjoining land as a “national memorial,” prohibitng the spending of governmental funds to remove the cross, and directing the Secretary of the Interior to transfer the land to the Veterans of Foreign Wars (VFW) as long as the property was maintained as a memorial commemorating World War I veterans. A federal court of appeals ordered the removal of the cross, holding that a reasonable observer would perceive a cross on federal land as governmental endorsement of religion, Buono v. Norton, 371 F.3d 543 (9th Cir. 2004), and the government did not seek review of this decision. Subsequently, the court of appeals affirmed a lower court injunction against the transfer of land to the VFW, holding that the underlying statute was an invalid attempt to keep the cross in its existing location. Buono v. Kempthorne, 502 F.3d 1069 (9th Cir. 2007).

248 Justice Kennedy, joined in full by Chief Justice Roberts and in part by Justice Alito, found that the plaintiff, based on the existing injunction, had standing to challenge the land transfer. The case, however, was remanded to the district court to consider the legitimate congressional interest in reconciling Establishment Clause concerns with respect for the commemoration of military veterans, id. at 10–13, and to evaluate whether the land transfer would lead a “reasonable observer” to perceive government endorsement of religion. Id. at 16–17. Justice Alito would have upheld the land transfer, suggesting that a reasonable observer deemed to be aware of the history and all other pertinent facts relating to a challenged display would not find the transfer to be an endorsement of religion. Id. at 6 (Alito, J., concurring in part and in judgement). Justice Scalia, joined by Justice Thomas, held that the plaintiff had no standing to seek the expansion of the existing injunction to the display of the cross on private lands. Id. at 3–6 (Scalia, J., concurring in judgement).

249 459 U.S. 116 (1982).

250 459 U.S. at 125–26. But cf. Marsh v. Chambers, 463 U.S. 783 (1983), involving no explicit consideration of the possible symbolic implication of opening legislative sessions with prayers by paid chaplains.

251 459 U.S. at 126, quoting Abington, 374 U.S. 203, 222 (1963).

252 512 U.S. 687 (1994). Only four Justices (Souter, Blackmun, Stevens, and Ginsburg) thought that the Grendel’s Den principle applied; in their view the distinction that the delegation was to a village electorate rather than to a religious body “lack[ed] constitutional significance” under the peculiar circumstances of the case.

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