The Constitutional Principle: Separation of Church and State
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First Amendment

Establishment of Religion


{Page 977 continued}

"[F]or the men who wrote the Religion Clauses of the First Amendment the 'establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity."41


From the 1998 Supplement: "[The] Court has long held that the First Amendment reaches more than classic, 18th century establishments." 7


7 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)).


However, the Court's reading of the clause has never resulted in the barring of all assistance which aids, however incidentally, a religious institution. Outside this area, the decisions generally have more rigorously prohibited what may be deemed governmental promotion of religious doctrine.

41Walz 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).


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Financial Assistance to Church-Related Institutions.

--The Court's first opportunity to rule on the validity of governmental financial assistance to a religiously affiliated institution occurred in 1899, the assistance being a federal grant for the construction of a hospital owned and operated by a Roman Catholic order. The Court viewed the hospital as a secular institution so chartered by Congress and not as a religious or sectarian body, thus avoiding the constitutional issue.42 But when the right of local authorities to provide free transportation for children attending parochial schools reached the Court, it adopted very restrictive language. "The ‘establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining {Page 978} or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and State."43 But the majority sustained the provision of transportation. While recognizing that "it approaches the verge" of the State's constitutional power, still, Justice Black thought, the transportation was a form of "public welfare legislation" which was being extended "to all its citizens without regard to their religious belief."44 "It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State."45 Transportation benefited the child, just as did police protection at crossings, fire protection, connections for sewage disposal, public highways and sidewalks. Thus was born the "child benefit" theory.46

42Bradfield 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. 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).

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

44Id. at 16.

45Id. 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).

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


The Court in 1968 relied on the "child benefit" theory to sustain state loans of textbooks to parochial school students.47 Utilizing the secular purpose and effect tests,48 the Court determined that the purpose of the loans was the "furtherance of the educational opportunities available to the young," while the effect was hardly less secular. "The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools. Perhaps free books make it more likely that some children choose to attend a sectarian {Page 979} school, but that was true of the state-paid bus fares in Everson and does not alone demonstrate an unconstitutional degree of support for a religious institution."49

47Board of Education v. Allen, 392 U.S. 236 (1968).

48Supra, p.973.

49392 U.S. at 243-44 (1968).


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


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

50Committee 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). And see Wolman v. Walter, 433 U.S. 229, 240 (1977) (plurality opinion); Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 653-654 (1980), and id. at 665 (Justice Blackmun dissenting).


Varied views have been expressed by the Justices, however, upon the tests of secular primary effect and church-state entanglement. As to the former test, the Court has formulated no hard-and-fast standard permitting easy judgment in all cases.51 In providing {Page 980}assistance, government must avoid aiding the religious mission of such schools directly or indirectly. Thus, for example, funds may not be given to a sectarian institution without restrictions that would prevent their use for such purposes as defraying the costs of building or maintaining chapels or classrooms in which religion is taught.52 Loan of substantial amounts of purely secular educational materials to sectarian schools can also result in impermissible advancement of sectarian activity where secular and sectarian education are inextricably intertwined.53 The extent to which the religious mission of the entity is inextricably intertwined with the secular mission and the size of the assistance furnished are factors for the reviewing court to consider. 55 But the fact that public aid to further secular purposes of the school will necessarily "free up" some of the institution's funds which it may apply to its religious mission is not alone sufficient to condemn the program.56 Rather, it must always be determined whether the religious effects are substantial or whether they are remote and incidental.57 Upon that determination and {Page 981} upon the guarantees built into any program to assure that public aid is used exclusively for secular, neutral, and non-ideological purposes rests the validity of public assistance.

51Justice White has argued that the primary effect test requires the Court to make an "ultimate judgment" whether the primary effect of a program advances religion. If the primary effect is secular, i.e., keeping the parochial school system alive and providing adequate secular education to substantial numbers of students, then the incidental benefit to religion was only secondary and permissible. Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 822-24 (1973) (dissenting). The Court rejected this view: "[o]ur cases simply do not support the notion that a law found to have a ‘primary' effect to promote some legitimate end under the State's police power is immune from further examination to ascertain whether it also has the direct and immediate effect of advancing religion." Id. at 873 n.39.

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

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

54Struck in 1998 Supplement.

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

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

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


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

58Lemon v. Kurtzman, 403 U.S. 602, 619-20, 621-22 (1971); Meek v. Pittenger, 421 U.S. 349, 367-72 (1975); Wolman v. Walter, 433 U.S. 229, 254-55 (1977). Another aspect of entanglement identified by the Court is the danger that an aid program would encourage continuing political strife through disputes over annual appropriations and enlargements of programs. Lemon, 403 U.S. at 622-24; Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794-98 (1973); Meek, 421 U.S. at 372. This concern appeared to have lessened somewhat in subsequent cases. Roemer v. Maryland Public Works Board, 426 U.S. 736, 763-66 (1976); Committee for Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 661 n.8 (1980).

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


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

Substantial unanimity, at least in result, has prevailed among the Justices in dealing with direct financial assistance to sectarian schools, as might have been expected from the argument over the primary effect test.60 State aid to church-connected schools was first found to have gone over the "verge"61 in Lemon v. Kurtzman.62 Involved were two state statutes, one of which authorized the "purchase" of secular educational services from nonpublic elementary and secondary schools, a form of reimbursement for the cost to religious schools of the teaching of such things as mathematics, modern foreign languages, and physical sciences, and the other of which provided salary supplements to nonpublic school teachers who taught courses similar to those found in public {Page 982} schools, used textbooks approved for use in public schools, and agreed not to teach any classes in religion. Accepting the secular purpose attached to both statutes by the legislature, the Court did not pass on the secular effect test, inasmuch as excessive entanglement was found. This entanglement arose because the legislature "has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion."63 Because the schools concerned were religious schools, because they were under the control of the church hierarchy, because the primary purpose of the schools was the propagation of the faith, a "comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions [on religious utilization of aid] are obeyed and the First Amendment otherwise respected."64 Moreover, the provision of public aid inevitably will draw religious conflict into the public arena as the contest for adequate funding goes on. Thus, the Court held, both programs were unconstitutional because the state supervision necessary to ensure a secular purpose and a secular effect inevitably involved the state authorities too deeply in the religious affairs of the aided institutions.65

60But see discussion infra p., on the Court's recent approval of the Adolescent Family Life Act, involving direct grants to religious institutions.

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

62 403 U.S. 602 (1971).

63Id. at 619.

64Id.

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


Two programs of assistance through provision of equipment and services to private, including sectarian, schools were invalidated in Meek v. Pittenger.66 First, the loan of instructional material and equipment directly to qualifying nonpublic elementary and secondary schools was voided as an impermissible extension of assistance of religion. This conclusion was reached on the basis that 75 percent of the qualifying schools were church-related or religiously affiliated educational institutions and the assistance was available without regard to the degree of religious activity of the schools. The materials and equipment loaned were religiously neutral, but the substantial assistance necessarily constituted aid to the sectarian school enterprise as a whole and thus had a primary effect of advancing religion.67 Second, the provision of auxiliary {Page 983} services--remedial and accelerated instruction, guidance counseling and testing, speech and hearing services--by public employees on nonpublic school premises was invalidated because the Court thought the program had to be policed closely to ensure religious neutrality and it saw no way that could be done without impermissible entanglement. The fact that the teachers would, under this program and unlike one of the programs condemned in Lemon v. Kurtzman, be public employees rather than employees of the religious schools and possibly under religious discipline was insufficient to permit the State to fail to make certain that religion was not inculcated by subsidized teachers.68

66 421 U.S. 349 (1975). Chief Justice Burger and Justices Rehnquist and White dissented. Id. at 385, 387.

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

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


The Court in two 1985 cases again struck down programs of public subsidy of instructional services provided on the premises of sectarian schools, and relied on the effects test as well as the entanglement test. In Grand Rapids School District v. Ball,69 the Court invalidated two programs conducted in leased private school classrooms, one taught during the regular school day by public school teachers,70 and the other taught after regular school hours by part-time "public" teachers otherwise employed as full-time teachers by the sectarian school.71 Both programs, the Court held, had the effect of promoting religion in three distinct ways. The teachers might be influenced by the "pervasively sectarian nature" of the environment and might "subtly or overtly indoctrinate the students in particular religious tenets at public expense"; use of the parochial school classrooms "threatens to convey a message of state support for religion" through "the symbolic union of government and religion in one sectarian enterprise"; and "the programs in effect subsidize the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects."72 In Aguilar v. Felton,73 the Court invalidated a {Page 984} program under which public school employees provided instructional services on parochial school premises to educationally deprived children. The program differed from those at issue in Grand Rapids because the classes were closely monitored for religious content. This "pervasive monitoring" did not save the program, however, because, by requiring close cooperation and day-to-day contact between public and secular authorities, the monitoring "infringes precisely those Establishment Clause values at the root of the prohibition of excessive entanglement."74


From the 1998 Supplement:

In two more recent decisions, however, the Court reversed course with respect to the constitutionality of public school teachers providing educational services on the premises of pervasively sectarian schools. First, in Zobrest v. Catalina Foothills School District 8 the Court held the public subsidy of a sign-language interpreter for a deaf student attending a parochial school to create 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 said 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 ‘handicapped' under the IDEA, without regard to the ‘sectarian-nonsectarian, or public-nonpublic nature' of the school the child attends." Secondly, and more pointedly, the Court in Agostini v. Felton 9 overturned both the result and the reasoning of its decision in Aguilar v. Felton 10 striking down the Title I program as administered in New York City as well as the analogous parts of its decisions in Meek v. Pittenger 11 and Grand Rapids School District v. Ball. 12 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, 13 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." 14 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." 15


8 509 U.S. 1 (1993).

9 521 U.S. 203 (1997).

10 473 U.S. 402 (1985).

11 421 U.S. 349 (1975).

12 473 U.S. 373 (1985).

13 474 U.S. 481 (1986).

14 Evidencing the continuing vitality of the Lemon tests, the Court analyzed the constitutionality of the Title I program in Agostini under both the primary effect and entanglement tests. But in so doing it eliminated entanglement as a separate 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." Agostini v. Felton, supra, at 232, 233.

15 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.


69 473 U.S. 373 (1985).

70The 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.

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

72 473 U.S. at 397.

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

74 473 U.S. at 413.


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

75 Levitt v. Committee for Public Educ. & Religious Liberty, 413 U.S. 472 (1973). Justice White dissented, Id. at 482. Among the services reimbursed was the cost of preparing and grading examinations in the nonpublic schools by the teachers there. 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.

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

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


The "child benefit" theory, under which it is permissible for government to render ideologically neutral assistance and services to pupils in sectarian schools without being deemed to be aiding the religious mission of the schools, has not proved easy to apply. A number of different forms of assistance to students were at issue {Page 985} in Wolman v. Walter.78 The Court approved the following: standardized tests and scoring services used in the public schools, with private school personnel not involved in the test drafting and scoring; speech, hearing, and psychological diagnostic services provided in the private schools by public employees; and therapeutic, guidance, and remedial services for students provided off the premises of the private schools. In all these, the Court thought the program contained adequate built-in protections against religious utilization. But while the Court adhered to its ruling permitting the States to loan secular textbooks used in the public schools to pupils attending religious schools,79 it declined to extend the precedent to permit the loan to pupils or their parents of instructional materials and equipment, such as projectors, tape recorders, maps, globes and science kits, although they were identical to those used in the public schools.80 Nor was a State permitted to expend funds to pay the costs to religious schools of field trip transportation such as was provided to public school students.81

78 433 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. Id. at 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.

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

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

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


Substantially similar programs from New York and Pennsylvania providing for tuition reimbursement aid to parents of religious school children were struck down in 1973. New York's program provided reimbursements out of general tax revenues for tuition paid by low-income parents to send their children to nonpublic elementary and secondary schools; the reimbursements were of fixed amounts but could not exceed 50 percent of actual tuition paid.

{Page 986} Pennsylvania provided fixed-sum reimbursement for parents who send their children to nonpublic elementary and secondary schools, so long as the amount paid did not exceed actual tuition, the funds to be derived from cigarette tax revenues. Both programs, it was held, constituted public financial assistance to sectarian institutions with no attempt to segregate the benefits so that religion was not advanced.82

82 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.


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

83 Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 789-94 (1973). The quoted paragraph is id. 790-91.

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


Two subsidiary arguments were rejected by the Court in these cases. First, it had been argued that the tuition reimbursement program promoted the free exercise of religion in that it permitted low-income parents desiring to send their children to school in accordance with their religious views to do so. The Court agreed that "tension inevitably exists between the Free Exercise and the Establishment Clauses," but explained that the tension is ordinarily re {Page 987} solved through application of the "neutrality" principle: government may neither advance nor inhibit religion. The tuition program inescapably advanced religion and thereby violated this principle.85 In the Pennsylvania case, it was argued that because the program reimbursed parents who sent their children to nonsectarian schools as well as to sectarian ones, the portion respecting the former parents was valid and "parents of children who attended sectarian schools are entitled to the same aid as a matter of equal protection. The argument is thoroughly spurious. . . . The Equal Protection Clause has never been regarded as a bludgeon with which to compel a State to violate other provisions of the Constitution."86

85 Id. at 788-89. But cf. Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (due to Free Exercise Clause, Constitution "affirmatively mandates accommodation, not merely tolerance, of all religions").

86 Sloan v. Lemon, 413 U.S. 825, 833-35 (1973). In any event, the Court sustained the district court's refusal to sever the program and save that portion as to children attending non-sectarian schools on the basis that since so large a portion of the children 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.


The Nyquist holding was substantially undermined in 1983, the Court taking a more accommodationist approach toward indirect subsidy of parochial schools. In Mueller v. Allen,87 the Court upheld a Minnesota deduction from state income tax available to parents of elementary and secondary school children for expenses incurred in providing tuition, transportation, textbooks, and various other school supplies. Because the Minnesota deduction was available to parents of public and private schoolchildren alike, the Court termed it "vitally different from the scheme struck down in Nyquist," and more similar to the benefits upheld in Everson and Allen as available to all schoolchildren.88 The Court declined to look behind the "facial neutrality" of the law and consider empirical evidence of its actual impact, citing a need for "certainty" and the lack of "principled standards" by which to evaluate such evidence.89 Also important to the Court's refusal to consider the alleged {Page 988} disproportionate benefits to parents of parochial schools was the assertion that, "whatever unequal effect may be attributed to the statutory classification can fairly be regarded as a rough return for the benefits . . . provided to the State and all taxpayers by parents sending their children to parochial schools."90

87 463 U.S. 388 (1983).

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

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

90 463 U.S. at 402.


A second factor important in Mueller, present but not controlling in Nyquist, was that the financial aid was provided to the parents of schoolchildren rather than to the school, and thus in the Court's view was "attenuated" rather than direct; since aid was "available only as a result of decisions of individual parents," there was no "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."91 Thus Mueller seemingly stands for the proposition that state subsidies of tuition expenses at sectarian schools are permissible if contained in a facially neutral scheme providing benefits, at least nominally, to parents of public and private schoolchildren alike.92

91 463 U.S. at 399.

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

Similar reasoning led the Court to rule that provision of a sign-language interpreter to a deaf student attending a parochial school is permissible as part of a neutral program offering such services to all students regardless of what school they attend. Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993). The interpreter, the Court noted additionally, merely transmits whatever material is presented, and neither adds to nor subtracts from the school's sectarian environment. Id. at 13.


The Court, although closely divided at times, has approved quite extensive public assistance to institutions of higher learning. On the same day that it first struck down an assistance program for elementary and secondary private schools, the Court sustained construction grants to church-related colleges and universities.(93) The specific grants in question were for construction of two library buildings, a science building, a music, drama, and arts building, and a language laboratory. The law prohibited the financing of any facility for, or the use of any federally-financed building for, religious {Page 989} purposes, although the restriction on use ran for only twenty years.94 The Court found that the purpose and effect of the grants were secular and that, unlike elementary and secondary schools, religious colleges were not so permeated with religious inculcations.95 The supervision required to ensure conformance with the non-religious-use requirement was found not to constitute "excessive entanglement," inasmuch as a building is nonideological in character, unlike teachers, and inasmuch as the construction grants were onetime things and did not continue as did the state programs.

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

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

95 It was no doubt true, Chief Justice Burger conceded, that construction grants to religious-related colleges did in some measure benefit religion, since the grants freed money that the colleges would be required to spend on the facilities for which the grants were made.

Bus transportation, textbooks, and tax exemptions similarly benefited religion and had been upheld. "The crucial question is not whether some benefit accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances religion." Id. at 679.


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

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

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


The kind of assistance permitted by Tilton and by Hunt v. McNair seems to have been broadened when the Court sustained a Maryland program of annual subsidies to qualifying private institutions of higher education; the grants were noncategorical but could not be used for sectarian purposes, a limitation to be policed {Page 990} by the administering agency.98 The plurality opinion found a secular purpose; found that the limitation of funding to secular activities was meaningful,99 since the religiously affiliated institutions were not so pervasively sectarian that secular activities could not be separated from sectarian ones; and determined that excessive entanglement was improbable, given the fact that aided institutions were not pervasively sectarian. The annual nature of the subsidy was recognized as posing the danger of political entanglement, but the plurality thought that the character of the aided institutions--"capable of separating secular and religious functions"--was more important.100

98 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. Justice Brennan, joined by Justice Marshall, dissented, and Justices Stewart and Stevens each dissented separately. Id. at 770, 773, 775.

99 Id. 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.

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


In Bowen v. Kendrick101 the Court by a 5-4 vote upheld the Adolescent Family Life Act (AFLA)102 against facial challenge. The Act permits direct grants to religious organizations for provision of health care and for counseling of adolescents on matters of pregnancy prevention and abortion alternatives, and requires grantees to involve other community groups, including religious organizations, in delivery of services. All of the Justices agreed that AFLA had valid secular purposes; their disagreement related to application of the effects and entanglement tests. The Court relied on {Page 991} analogy to the higher education cases rather than the cases involving aid to elementary and secondary schools.103 The case presented conflicting factual considerations. On the one hand, the class of beneficiaries was broad, with religious groups not predominant among the wide range of eligible community organizations. On the other hand, there were analogies to the parochial school aid cases: secular and religious teachings might easily be mixed, and the age of the targeted group (adolescents) suggested susceptibility. The Court resolved these conflicts by holding that AFLA is facially valid, there being insufficient indication that a significant proportion of the AFLA funds would be disbursed to "pervasively sectarian" institutions, but by remanding to the district court to determine whether particular grants to pervasively sectarian institutions were invalid. The Court emphasized in both parts of its opinion that the fact that "views espoused [during counseling] on matters of premarital sex, abortion, and the like happen to coincide with the religious views of the AFLA grantee would not be sufficient to show [an Establishment Clause violation]."104

101 487 U.S. 589 (1988). Chief Justice Rehnquist wrote the Court's opinion, and was joined by Justices White, O'Connor, Scalia, and Kennedy; in addition, Justice O'Connor and Justice Kennedy, joined by Justice Scalia, filed separate concurring opinions. Justice Blackmun's dissenting opinion was joined by Justices Brennan, Marshall, and Stevens.

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

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

104 487 U.S. at 621.


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

105 Id. at 624-25.


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Governmental Encouragement of Religion in Public Schools: Released Time

Introduction of religious education into the public schools, one of Justice Rutledge's "great drives,"106 has {Page 992} also occasioned a substantial amount of litigation in the Court. In its first two encounters, the Court voided one program and upheld another, in which the similarities were at least as significant as the differences. Both cases involved "released time" programs, the establishing of a period during which pupils in public schools were to be allowed, upon parental request, to receive religious instruction. In the first, the religious classes were conducted during regular school hours in the school building by outside teachers furnished by a religious council representing the various faiths, subject to the approval or supervision of the superintendent of schools. Attendance reports were kept and reported to the school authorities in the same way as for other classes, and pupils not attending the religious instruction classes were required to continue their regular studies. "The operation of the State's compulsory education system thus assists and is integrated with the program of religious instruction carried on by separate religious sects. Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment . . . ."107 The case was also noteworthy because of the Court's express rejection of the contention "that historically the First Amendment was intended to forbid only government preference of one religion over another, not an impartial governmental assistance of all religions."108

106 Everson v. Board of Education, 330 U.S. 1, 63 (Justice Rutledge dissenting) (quoted supra p.977, n.41).

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

108 Id. at 211.


Four years later, the Court upheld a different released-time program.109 In this one, schools released pupils during school hours, on written request of their parents, so that they might leave the school building and go to religious centers for religious instruction or devotional exercises. The churches reported to the schools the names of children released from the public schools who did not report for religious instruction; children not released remained in the classrooms for regular studies. The Court found the differences between this program and the program struck down in McCollum to be constitutionally significant. Unlike McCollum, where "the classrooms were used for religious instruction and force of the public school was used to promote that instruction," religious instruction was conducted off school premises and "the public schools do {Page 993} no more than accommodate their schedules."110 We are a religious people whose institutions presuppose a Supreme Being," Justice Douglas wrote for the Court. "When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions.

For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe."111

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

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

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


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Governmental Encouragement of Religion in Public Schools: Prayers and Bible Reading

Upon recommendation of the state governing board, a local New York school required each class to begin each school day by reading aloud the following prayer in the presence of the teacher: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents, our teachers and our country." Students who wished to do so could remain silent or leave the room. Said the Court: "We think that by using its public school system to encourage recitation of the Regents' prayer, the State of New York had adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity. . . . [W]e think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government."112 "Neither the fact that the prayer may be nondenominationally neutral nor the fact that its observance on

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


{Page 994} 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 non observing individuals or not."113

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


Following the prayer decision came two cases in which parents and their school age children challenged the validity under the Establishment Clause of requirements that each school day begin with readings of selections from the Bible. Scripture reading, like prayers, the Court found, was a religious exercise. "Given that finding the exercises and the law requiring them are in violation of the Establishment Clause."114 Rejected were contentions by the State that the object of the programs was the promotion of secular purposes, such as the expounding of moral values, the contradiction of the materialistic trends of the times, the perpetuation of traditional institutions, and the teaching of literature115 and that to forbid the particular exercises was to choose a "religion of secularism" in their place.116 Though the "place of religion in our society is an exalted one," the Establishment Clause, the Court continued, prescribed that in "the relationship between man and religion," the State must be "firmly committed to a position of neutrality."117

114 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. Clauson." Id.

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

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

117 Id. 226. Justice Brennan contributed a lengthy concurrence in which he attempted to rationalize the decisions of the Court on the religion clauses and to delineate the principles applicable. He concluded that what the establishment clause foreclosed "are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice." Id. at 230, 295. Justice Stewart again dissented alone, feeling that the claims presented were essentially free exercise contentions which were not supported by proof of coercion or of punitive official action for nonparticipation.


While numerous efforts were made over the years to overturn these cases, through constitutional amendment and through limitations on the Court's jurisdiction, the Supreme Court itself has had no occasion to review the area again. But see Stone v. Graham, 449 U.S. 39 (1980) (summarily reversing state court and invalidating statute requiring the posting of the Ten Commandments, purchased with private contributions, on the wall of each public classroom).

{Page 995}

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

118 472 U.S. 38 (1985).

119 Id. at 59.

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


The school prayer decisions served as precedent for the Court's holding in Lee v. Weisman121 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 {Page 996} as coercive in the elementary and secondary school setting.122 The state "in effect required participation in a religious exercise," since the option of not attending "one of life's most significant occasions" was no real choice. "At a minimum," the Court concluded, the Establishment Clause "guarantees that government may not coerce anyone to support or participate in religion or its exercise."

121 112 S. Ct. 2649 (1992).

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


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Governmental Encouragement of Religion in Public Schools: Curriculum Restriction

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

123 393 U.S. 97 (1968).

124 Id. at 109.


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

125 483 U.S. 578, 591 (1987).

126 483 U.S. at 589. The Court's conclusion was premised on its finding that "the term ‘creation science,' as used by the legislature . . . embodies the religious belief that a supernatural creator was responsible for the creation of humankind." Id. at 592. {Page 997}


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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 those facilities available to nonreligious student groups. To allow religious groups equal access to a public college's facilities would further a secular purpose, would not constitute an impermissible benefit to religion, and would pose little hazard of entanglement.127 These principles apply to public secondary schools as well as to institutions of higher learning.128 In 1990 the Court upheld application of the Equal Access Act129 to prevent a secondary school from denying access to school premises to a student religious club while granting access to such other "noncurriculum" related student groups as a scuba diving club, a chess club, and a service club.130


From the 1998 Supplement:

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; 16 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;" 17 and a state that creates a traditional public forum for citizen speeches and unattended displays on a plaza at its state capitol cannot, on Establishment Clause grounds, deny access for a religious display. 18 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.


16 Lamb's Chapel v. Center Moriches School Dist., 508 U.S. 384 (1993). The Court explained that there was "no realistic danger that the community would think that the District was endorsing religion," and that the three-part Lemon test would not have been violated. Id. at 395. Concurring opinions by Justice Scalia, joined by Justice Thomas, and by Justice Kennedy, criticized the Court's reference to Lemon. "Like 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," Justice Scalia lamented. Id. at 398.

17 Rosenberger v. University of Virginia, 515 U.S. 819 (1995).

18 Capitol Square Review Bd. v. Pinette, 515 U.S. 753 (1995).


127 Widmar v. Vincent, 454 U.S. 263, 270-75 (1981).

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

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

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


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


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