The Law of Church and State: Developments in the Supreme Court Since 1980
Report for Congress
The Law of Church and State:
Developments in the
Supreme Court Since 1980
Updated August 15, 2002
David M. Ackerman
American Law Division
Congressional Research Service ˜ The Library of Congress
The Law of Church and State: Developments in the
Supreme Court Since 1980
The religion clauses of the First Amendment provide that “Congress shall make
no law respecting an establishment of religion, or prohibiting the free exercise thereof
....” Prior to the past two decades the Supreme Court frequently construed these
clauses to create, in Thomas Jefferson’s oft-quoted metaphor, a “wall of separation
between church and state.” However, many of the Court’s decisions precipitated
substantial public discontent and spawned organized efforts to overturn or otherwise
alter its decisions. Particularly since Ronald Reagan was elected to the Presidency
in 1980, those efforts have been increasingly successful.
That election has proven to be a critical turning point, because President Reagan
and his successor, President Bush, were able to replace more than half of the Justices
on the Supreme Court during their terms. President Reagan elevated Justice
Rehnquist to Chief Justice and appointed Justices O’Connor, Scalia, and Kennedy,
while President Bush appointed Justices Souter and Thomas. Not all of these
appointees have fulfilled the expectations of the Presidents who appointed them, but
they have led to vigorous debates on the Court about the meaning of the religion
clauses and to a church-state jurisprudence that increasingly loosens the
constitutional constraints on government action that affects religion.
During the past two decades the Court has been a willing forum for the debate
over the proper relationship between government and religion. From the fall of 1980
to the present the Court has handed down 59 decisions on issues of church and state
— more than in any previous comparable period. In many of its decisions the Court
has been sharply split. But the changes in the Court’s composition have had a
demonstrable effect: The Court has substantially narrowed the scope of the free
exercise clause as a constraint on government action and it has begun to recast its
establishment clause jurisprudence as well. On both clauses the Court’s
interpretations are now giving government greater discretion than formerly to take
actions that affect religious practices and institutions, both positively and negatively.
Nonetheless, the Court remains sharply divided on the interpretation and application
of the religion clauses, and the outcome of particular cases is often unpredictable.
In sum, the period since 1980 has been a profoundly important time for the law
of church and state in the Supreme Court. The arguments both on and off the Court
about the proper relationship of government and religion have been spirited and
extensive, and the Court has issued dozens of rulings on specific issues. This report
summarizes the doctrinal debates and shifts on the religion clauses that have occurred
on the Court during this period. It summarizes and examines as well the legal effect
of all of the decisions the Court has handed down concerning church and state since
1980. An Appendix lists these decisions and how each of the Justices voted. The
report will be updated as new decisions are rendered by the Court.
In troduction ..................................................1
“Congress Shall Make No Law ... Prohibiting the Free Exercise [of Religion]”:
The Rise and Fall of the Strict Scrutiny Standard.................5
(a) From Sherbert-Yoder-Thomas to Smith......................5
(b) Harbingers of Smith.....................................9
(c) The Aftermath of Smith.................................14
“Congress Shall Make No Law Respecting an Establishment of Religion...”:
Lemon and the Lessons of History............................17
(a) The Separationist Understanding..........................18
(b) The Critique..........................................22
(c) The Response.........................................27
(d) Modifications of the Lemon Test..........................29
(e) Other establishment clause tests – coercion and tradition.......35
(a) Religious Activities in the Public Schools...................37
(b) Religion in the Public Square.............................44
(c) Public Aid to Religious Organizations......................51
(d) Governmental Solicitude for Religion......................59
(e) Taxation of Religious Entities............................62
(f) Other Decisions........................................65
SUPREME COURT DECISIONS ON CHURCH AND STATE, 1980-
The Law of Church and State:
Developments in the Supreme Court Since
The religion clauses of the First Amendment to the Constitution provide that
“Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof ....” In its modern jurisprudence (beginning in the 1940s)
the Supreme Court frequently construed these clauses to create, in Thomas1
Jefferson’s words, a “wall of separation between church and state.” But many of the
Court’s decisions – particularly with respect to prayer and other religious activities
in the public schools – were controversial, and they often led to concerted political
efforts to change the Court’s church-state jurisprudence.
Prior to 1980 those efforts were unavailing, and a separationist perspective
continued to dominate the Court’s interpretation of the religion clauses. But that
began to change with the election of Ronald Reagan to the Presidency in 1980. His
election was fueled in part by opposition to the Court’s church-state decisions; and
in response, he not only became the first President to propose a constitutional2
amendment to overturn some of the Court’s church-state decisions but also
1 In a letter of January 1, 1802, to the Baptist Association of Danbury, Connecticut,
President Jefferson stated as follows:
Believing with you that religion is a matter which lies solely between man and
his God; that he owes account to none other for his faith or his worship; that the
legislative powers of the Government reach actions only, and not opinions — I
contemplate with sovereign reverence that act of the whole American people
which declared that their legislature should “make no law respecting an
establishment of religion or prohibiting the free exercise thereof,” thus building
a wall of separation between church and State.
Quoted in Everson v. Board of Education, 330 U.S. 1, 16 (1947).
The Court’s modern interpretation of the religion clauses generally dates from the time it
incorporated them into the due process clause of the Fourteenth Amendment and held them
applicable to the states — Cantwell v. Connecticut, 310 U.S. 296 (1940) (free exercise
clause) and Everson v. Board of Education, supra (establishment clause). During the
previous 150 years of the nation’s existence, the Court rarely had occasion to apply and
interpret the religion clauses to the actions of the national government. But once it held
them applicable to the states, issues arose with increasing frequency and led to the
development of an extensive church-state jurisprudence by the Court.
2 In 1981 President Reagan first proposed a constitutional amendment on school prayer. See
appointed public officials who vigorously and publicly challenged the Court’s
jurisprudence.3 He also oversaw energetic efforts by his Solicitors General to argue
for a loosened interpretation of the religion clauses in cases before the Court, both
when the government was a party and as amicus curiae when it was not.4 But to
greater and more long-lasting effect, the election of President Reagan and his
successor, President Bush, opened the door to the possibility of changing the Court’s
church-state jurisprudence by means of the exercise of the Presidential powers of
Article II, Section 2, of the Constitution to “nominate and ... appoint ... Judges of the
Presidents Reagan and Bush replaced more than half of the Court during their
twelve years in office. Chief Justice Burger (1985) and Justices Stewart (1980),
Powell (1986), Brennan (1990), and Marshall (1991) all retired from the Court during
this period. In their stead President Reagan elevated Justice Rehnquist to Chief
Justice and appointed Justices O’Connor, Scalia, and Kennedy; and President Bush
S.J.Res. 199 and H.J.Res. 493, 97th Cong., 1st Sess. (1981). In 1984 the Senate Judiciary
Committee reported a modified version of that amendment (S.J.Res. 73), and the Senate
debated the matter for two and a half weeks. Ultimately, a majority voted in favor of it, 56-
44; but that vote was 11 votes short of the two-thirds majority necessary for the measure to
be adopted. See 130 CONG. REC. 5619 (March 20, 1984). A similar effort took place
soon after the Republicans took control of both the House and the Senate after the 1994th
elections. Although no formal votes occurred in the 104 Congress, a number of significant
developments occurred. Perhaps most important, the constitutional debate in Congress
broadened beyond the school prayer issue to include other aspects of the Court’s church-th
state jurisprudence. In the 105 Congress that interest and debate persisted; and on May 19,
gauge constitutional amendment introduced by Rep. Istook (H.J.Res. 78). After rejecting
two amendments to the proposal, the House voted in favor, 223-203; but that vote fell 61
votes short of the two-thirds majority necessary for adoption. For a fuller description of
Congressional action, see CRS, School Prayer: The Congressional Response, 1962-1998
(December 1, 1998) (Report 96-846A).
3 See, e.g., the address by Attorney General Edwin Meese III to the House of Delegates of
the American Bar Association (July 9, 1985).
4 The Solicitors General under Presidents Reagan and Bush repeatedly urged the Court to
loosen the constraints of the religion clauses on government action affecting religion. Of
the forty-nine church-state cases decided during their terms, the Solicitors General proffered
the government’s views in thirty — sixteen because the United States was a party, fourteen
as an amicus curiae; and in all of them the government argued for a less constrictive
interpretation of the religion clauses. The Solicitors General under President Clinton
continued this effort, as they filed briefs in three of the seven church-state cases that the
Court decided from 1993-2001. They, too, urged the Court in every instance to uphold the
government’s action as constitutional; and in two of the cases they urged the Court to do so
by overturning some of its prior establishment clause decisions. The Solicitor General in
the current Bush Administration so far has intervened as an amicus curiae in one of the three
church-state cases accepted for review by the Court; and in that case he not only filed a brief
but also sought and gained permission to participate in the oral argument. Again, the
Administration’s position favored a loosened interpretation of the establishment clause. See
Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002) (upholding a school voucher program
against establishment clause objections).
appointed Justices Souter and Thomas. These changes led to increasingly public
criticism on the Court of its prior church-state jurisprudence and to very sharp splits
among the Justices on new cases that came before it. It quickly became clear that
Chief Justice Rehnquist and Justices Scalia and Thomas staunchly favored greater
government discretion with respect to religion and that Justices O’Connor and
Kennedy, although not as predictable, often decided cases from a similar perspective.
Although some of these appointees did not entirely fulfil the expectations of the
Presidents who appointed them,5 they did precipitate vigorous debates about the
meaning of the religion clauses and did fuel the increasing dominance on the Court
of what are deemed “conservative” constructions of the law. President Clinton
appointed Justices Ginsburg and Breyer to the Supreme Court in 1993 and 1994,
respectively, to replace retiring Justices White and Blackmun; but while these
Justices generally favor separationist constructions of the religion clauses, their
appointments did not reestablish a consistent separationist majority.6
During this time the Supreme Court has been a willing, even eager, forum for
disputes over the proper relationship between government and religion. From the fall
of 1980 to the present the Court has handed down 59 decisions7 in cases raising
church-state issues — more than in any prior comparable time period. Its decisions
have involved such familiar issues as religious activities in the public schools and
direct public aid to sectarian schools. But the Court has also addressed such
relatively unexplored matters as the constitutionality of the public display of religious
symbols, legislative prayer, indirect aid to sectarian schools, government regulation
of minority religious practices, the accommodation and protection of religion, and
the taxation and regulation of religious entities.
As noted, the Court has been sharply split in many of these decisions. Nearly
a third of the Court’s church-state decisions since 1981 have been by a margin of 5-4
5 See, e.g., Lee v. Weisman, 505 U.S. 577 (1992), in which the Court reaffirmed its prior
school prayer decisions and held that the establishment clause forbids a public secondary
school from including prayers by a clergyman in its commencement ceremony. The
decision was 5-4, with Justices O’Connor, Kennedy, and Souter — all appointed by
Presidents Reagan and Bush — joining Justices Blackmun and Stevens in the majority.
Indeed, Justice Souter appears to have become one of the leading separationists on the
Court, and Justice O’Connor has often been a swing vote on church-state issues.
6 It might be noted that President Clinton’s appointees have also not always fulfilled the
expectations that separationist advocates might have had of them. See, e.g., City of Boerne
v. Flores, 521 U.S. 407 (1997), which held the Religious Freedom Restoration Act
unconstitutional (Justice Ginsburg was part of the majority) and Mitchell v. Helms, 530 U.S.
793 (2000), which upheld as constitutional the loan of instructional materials and equipment
to sectarian schools (Justice Breyer was part of the majority). Nonetheless, they often join
with Justices Stevens and Souter in the expression of separationist views.
7 This total obviously is selective in some respects. It includes all decisions involving the
establishment or free exercise clauses, all decisions concerning religious discrimination
under Title VII of the Civil Rights Act of 1964, selected decisions involving religious
speech but decided under the free speech clause, and selected decisions involving the
taxation of religious entities. It does not include dismissals of appeals from state court
decisions or summary affirmances by an equally divided Court. See the Appendix for a
listing of the pertinent cases and for a breakdown of how the Justices voted on each case.
(compared to less than 20 percent for all of the Court’s decisions during this period).8
But although some of the cases have been decided by the narrowest of margins, the
changes in the Court’s composition have had a demonstrable effect. The Court has
dramatically altered its interpretation of the free exercise clause by generally
replacing the strict scrutiny standard it formerly employed with the more lenient
standard of formal neutrality.9 With respect to the establishment clause, the Court’s
actions have not been quite so sweeping. But it has in its most recent decisions
overturned several prior rulings that were separationist in nature10; and on issues
which it had not previously addressed, a substantial portion of the Court’s
establishment clause decisions since 1980 can be described as accommodationist in
nature. Under both clauses the Court has created a wider constitutional space for
government action affecting religious institutions and religious practices.
In sum, the period since 1980 has been a time of sustained ferment on the Court
about the law of church and state. That ferment has produced spirited and extensive
arguments about the meaning of the religion clauses of the First Amendment and the
proper relationship of government and religion as well as a plethora of specific
rulings. This report provides an overview of that ferment and of the changes in the
Court’s church-state jurisprudence. It examines the doctrinal shifts and debates on
the free exercise and establishment of religion clauses that have occurred on the
Court since Ronald Reagan’s election to the Presidency in 1980. It summarizes and
examines as well the legal effect of each of the 59 decisions the Supreme Court has
handed down concerning church and state from its October, 1980 Term, through its
October, 2001 Term (i.e., October, 1980, through June, 2002). Finally, it concludes
with an Appendix listing all of the Court’s church-state decisions during this period
and the votes of each of the Justices.
8 These statistics are based on the annual compilations published in the November Harvard
Law Review and, for the 2001 Term, in 71 United States Law Week 3102 (July 23, 2002).
Since the 1981 Term (no statistics on 5-4 decisions were compiled for the 1980 Term), 469
of the Court’s 2392 written decisions have been by 5-4 margins — 19.6 percent. In contrast,
17 of its 59 church-state decisions have been by 5-4 margins — 28.8 percent. (These figures
should not be taken too literally; several of the church-state cases, and presumably of the
others as well, involved more than one issue and, thus, more than one vote by the Justices.
But they are indicative of the sharp division on the Court in this area of the law.)
9 Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872
10 Agostini v. Felton, 521 U.S. 203 (1997), overturning Aguilar v. Felton, 473 U.S. 402
(1985) and parts of three other decisions, and Mitchell v. Helms, 530 U.S. 793 (2000),
overturning parts of Meek v. Pittenger, 421 U.S. 349 (1975) and Wolman v. Walter, 433
U.S. 229 (1977).
“Congress Shall Make No Law ... Prohibiting the Free
Exercise [of Religion]”: The Rise and Fall of the Strict
(a) From Sherbert-Yoder-Thomas to Smith. Prior to the past decade
most of the political furor over the Court’s modern church-state jurisprudence
stemmed from its decisions concerning religion in the public schools, public aid to
sectarian schools, and the display of religious symbols in public places — all of
which are essentially establishment clause or free speech issues. But with little
public attention the Court has also wrestled with the question of how broadly to
interpret the free exercise clause. From a construction of the clause in 1963 that gave
special protection to religious practices, the Court by 1990 had moved to a
construction that allows government substantial discretion to regulate and even
prohibit religiously motivated actions.
Over a century ago the Court made clear that the free exercise clause protects
religious beliefs absolutely from governmental interference.11 The difficult question
has been whether, and the extent to which, the clause also protects religiously
motivated conduct or action from governmental interference.
In a number of decisions concerning the Mormon practice of polygamy at the
end of the nineteenth century, the Court answered that question by ruling that the free
exercise clause provided no protection whatsoever for conduct compelled or
motivated by religious beliefs.12 But that interpretation gradually changed, and in the
two decades immediately preceding the 1980s, the Court settled on a broad view of
the scope of the free exercise clause. In two seminal decisions — Sherbert v.
Verner13 and Wisconsin v. Yoder14 — the Court held that religious interests are to be
considered of paramount importance in the constitutional scheme and that
government actions infringing those interests are to be viewed as highly suspect.
In Sherbert the Court held that a state could not, consistent with the free
exercise clause, deny unemployment compensation benefits to a person who was
fired because she refused to work on her Sabbath. The denial of benefits, the Court
said, pressured the claimant to forego her religious practice and thus could be
justified only if it served “some compelling state interest,” a standard it found the
11 Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878).
12 See id.(free exercise clause held to be no defense in prosecution of Mormons for bigamy
and polygamy); Murphy v. Ramsey, 114 U.S. 15 (1885) (free exercise clause held to be no
barrier to a statute prohibiting bigamists and polygamists from serving on juries); Davis v.
Beason, 133 U.S. 333 (1890) (free exercise clause held not to invalidate a statute barring not
only bigamists and polygamists from voting but also those who taught or advocated bigamy
or polygamy); and The Late Corporation of the Church of Jesus Christ of Latter-Day Saints
v. United States, 136 U.S. 1 (1890) (free exercise clause held to provide no protection
against statute revoking the territorial charter of the Mormon Church and confiscating all
of its property not actually used for religious worship or burial).
13 374 U.S. 398 (1963).
14 406 U.S. 205 (1972).
state to be unable to meet. Similarly, in Yoder the Court held the free exercise clause
to mandate an exemption for the Old Order Amish from Wisconsin’s compulsory
education laws. Those laws required all children to attend school until the age of
sixteen, but the Amish believed that attendance beyond the eighth grade would
expose their children to worldly influences dangerous to their salvation. In holding
for the Amish, the Court said that “there are areas of conduct protected by the Free
Exercise Clause of the First Amendment and thus beyond the power of the state to
control, even under regulations of general applicability.”15
In these two cases, in other words, the Court held that government action alleged
to interfere with religious practices could be constitutional only if it were shown to
serve some compelling public interest and to be no more restrictive of religious
practices than necessary. Government action burdening religious exercise, in short,
was deemed to be subject to a constitutional standard of strict scrutiny.
But in the decade after 1980, the Court dramatically altered this construction of
the free exercise clause. Two decisions a decade apart encapsulated that process. In
the first decision in 1981, Thomas v. Review Board, Indiana Employment Security
Commission,16 the Court strongly reaffirmed the broad and sweeping construction it
had given the free exercise clause in Sherbert and Yoder. In Thomas, as in Sherbert,
it held the clause to require a state to grant unemployment compensation benefits to
an individual who interpreted the Bible to forbid him from accepting work on an
armaments production line and who, as a consequence, quit his job. The Court did
so even though Thomas’s scriptural interpretation was a personal one and was not
shared by the religious community to which he belonged (the Jehovah’s Witnesses)
and even though a denial of benefits would have only indirectly burdened his ability
to practice his religion.17 Thomas, thus, made crystal clear that governmental actions
infringing religiously motivated conduct are to be reviewed by the courts under a
standard of strict scrutiny:
The state may justify an inroad on religious liberty by showing that it is the least
restrictive means of achieving some compelling state interest. However, it is still
true that “the essence of all that has been said and written on the subject is that
15 Id. at 220.
16 450 U.S. 707 (1981).
17 A denial of unemployment benefits would not have precluded Thomas from practicing his
religion but only made it more expensive to do so. But the Court found this indirect burden
to be “substantial”:
Where the state conditions receipt of an important benefit upon conduct
proscribed by a religious faith, or where it denies such a benefit because of
conduct mandated by religious belief, thereby putting substantial pressure on an
adherent to modify his behavior and to violate his beliefs, a burden upon religion
exists. While the compulsion may be indirect, the infringement upon free
exercise is nonetheless substantial.
Thomas, 450 U.S. at 717-18.
only those interests of the highest order ... can overbalance claims to the free18
exercise of religion.”
The decision in Thomas was 8-1, with only then-Justice Rehnquist dissenting.
But in a decision in 1990, the Court resurrected its 19th century interpretation of
the free exercise clause. In Employment Division, Oregon Department of Human19
Resources v. Smith, the Court held the free exercise clause to provide no protection
whatever for individuals who used peyote in the religious ceremonies of the Native
American Church. Technically, the issue in the case was identical to that in Thomas
— the eligibility for unemployment benefits of two individuals who were
unemployed because they had been fired from their jobs as drug counselors after it
was discovered that they were using peyote in the religious ceremonies of their
church. But the determinative questions in the case were whether the sacramental
use of peyote was illegal under Oregon’s controlled substances law and, if so,
whether the free exercise clause nonetheless required an exemption from the law for
such a religious use. The Oregon Supreme Court construed the State’s law
criminalizing drug use and possession to apply to the sacramental use of peyote, and
in Smith the U.S. Supreme Court held the free exercise clause not to compel an
exemption.20 Consequently, the Court held Oregon’s denial of unemployment
benefits to be constitutional.
In the context of the nation’s war against drugs, that holding was not, in itself,
entirely surprising; and it could have been reconciled with the Court’s prior free
exercise jurisprudence. What was unexpected was that on the way to this conclusion
a majority of the Court largely abandoned the strict scrutiny test established in
Sherbert, Yoder, and Thomas as the standard for free exercise cases. The Court said
the compelling public interest test was simply “inapplicable” to the circumstances of
this case. Moreover, Justice Scalia wrote for the majority, the free exercise clause
never “relieve[s] an individual of the obligation to comply with a `valid and neutral
law of general applicability.’”
...[T]he right of free exercise does not relieve an individual of the obligation to
comply with a “valid and neutral law of general applicability on the ground that
18 Id. at 718, quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).
19 494 U.S. 872 (1990).
20 The case had been before the Court two years previously. But at that time the Oregon
Supreme Court had not ruled on whether the state’s criminal drug statute applied to the
sacramental use of peyote or, if it did, whether that application was compatible with the
Oregon Constitution or the free exercise clause. Consequently, the Supreme Court had
remanded the case back to the Oregon Supreme Court for consideration of those issues. See
Employment Division, Department of Human Resources v. Smith, 483 U.S. 660 (1988),
vacating and remanding, 301 Or. 209, 721 P.2d 445 (1986). In that reconsideration the
Oregon Supreme Court held the state’s controlled substance statute to apply to those who
used peyote in religious ceremonies but held the free exercise clause to immunize such use
from prosecution. See Smith v. Employment Division, Department of Human Resources,
the law proscribes (or prescribes) conduct that his religion prescribes (or21
To employ the compelling interest test for free exercise purposes, Justice Scalia said,
would “court ... anarchy,” permit every individual “to become a law unto himself,”22
and create “a private right to ignore generally applicable laws.” Religious
minorities, he said, need to seek protection for their practices in the political process,
not the courts. The fact that “the political process will place at a relative
disadvantage those religious practices that are not widely engaged in,” he stated, is23
simply an “unavoidable consequence of democratic government.” The margin was
5-4, with the majority formed by the lone dissenter in Thomas (Chief Justice
Rehnquist), two new appointees to the Court (Justices Scalia and Kennedy), and two
who had been in the majority in Thomas (Justices White and Stevens).24
The Court did not abandon strict scrutiny entirely. Justice Scalia’s articulation
of the new standard of formal neutrality retained strict scrutiny for cases involving
government programs allowing individualized assessment of claims for exemption,
such as state unemployment compensation programs — the area in which the strict
scrutiny test was first applied in the free exercise area. In addition, his opinion said
strict scrutiny was still appropriate for governmental actions that discriminate against
religion or deliberately impose special burdens on religion. Finally, Justice Scalia
suggested that “hybrid” claims, i.e., those involving a free exercise claim coupled
with another constitutional interest such as freedom of speech or parental rights,
might also be constitutionally entitled to some degree of exemption from neutral,
generally applicable laws. But his opinion left it decidedly unclear whether strict
scrutiny would apply to such cases, and in any event clearly abandoned strict scrutiny
for all non-hybrid cases other than those involving religious claims for exemption in
programs allowing individualized assessment and deliberate governmental targeting
The four dissenters sharply criticized the majority’s constriction of the strict
scrutiny test. Justice O’Connor asserted that Justice Scalia’s view “dramatically
departs from well-settled First Amendment jurisprudence ..., is incompatible with our
Nation’s fundamental commitment to individual religious liberty ..., and relegates a
serious First Amendment value to the barest level of minimum scrutiny ....”
Religious liberty, she said, is a preferred value, and the free exercise clause should
be interpreted to bar “encroachment upon this liberty, whether direct or indirect,
unless required by clear and compelling governmental interests `of the highest
order.’” Justice Blackmun, joined by Justices Brennan and Marshall, charged that
21 Employment Division v. Smith, supra n. 19, at 879, quoting United States v. Lee, 455 U.S.
22 Id. at 884-86.
23 Id. at 890.
24 Although the margin was 5-4 on the disavowal of the strict scrutiny test, the Court divided
Kennedy, White, and Stevens in ruling the two Indians ineligible for unemployment
benefits. But she did so on the grounds Oregon had a compelling interest in regulating the
use of drugs, and she dissented vigorously from their disavowal of the strict scrutiny test.
the majority’s decision “effectuates a wholesale overturning of settled law concerning
the Religion Clauses of our Constitution.” It is a “settled and inviolate principle of
this Court’s First Amendment jurisprudence,” he said, that “a state statute that
burdens the free exercise of religion ... may stand only if the law in general, and the
State’s refusal to allow a religious exemption in particular, are justified by a
compelling interest that cannot be served by less restrictive means.”
In short, in Smith the Court stepped back from the separationist standard it had
articulated in Sherbert, Yoder, and Thomas and re-interpreted the free exercise clause
to mean that, in most circumstances, an individual possesses no constitutional right
not to comply “with a valid and neutral law of general applicability on the ground
that the law proscribes (or prescribes) conduct that his religion prescribes (or
(b) Harbingers of Smith. This demise of the strict scrutiny test for most free
exercise cases and the possible subordination of religiously motivated conduct to the
will of political majorities, although unexpected in Smith, had in fact been
foreshadowed throughout the decade. In eight free exercise decisions between
Thomas and Smith, the Court had demonstrated increasing discontent with the strict
scrutiny test in free exercise cases. Four of those decisions nominally employed the
test, but the Court held the government to have met its requirements. In the four
other decisions the Court simply held strict scrutiny to be inapplicable in particular
In United States v. Lee,26 decided within a year of Thomas, the Court
unanimously held the free exercise clause not to exempt an Amish employer from
paying the employer’s portion of Social Security taxes. The Court noted that the
religious beliefs of the Amish specifically oppose support for a public system of
social insurance. But it held an Amish employer not to be entitled to an exemption
because, it said, “mandatory participation is indispensable to the fiscal vitality of the
social security system.”27
The following Term in Bob Jones University v. United States28 the Court upheld
IRS’ imposition of a racial nondiscrimination condition on the tax exemption
accorded a private college notwithstanding the college’s claim that its discriminatory
practices were mandated by religious belief. On the free exercise claim the Court
applied strict scrutiny but simply asserted in conclusory fashion that “the
Government has a fundamental, overriding interest in eradicating racial
discrimination in education” and that its interest “substantially outweighs whatever
burden denial of tax benefits places on petitioners’ exercise of their religious beliefs.”
The Court’s decision on the free exercise issue was again unanimous.29
25 Employment Division v. Smith, supra n. 19, at 878.
26 455 U.S. 252 (1981).
27 Id. at 258.
28 461 U.S. 574 (1983).
29 Id. at 604. Justice Rehnquist dissented from the Court’s holding that the IRS could
Subsequently, in 1989 the Court in Hernandez v. Commissioner of Internal
Revenue30 upheld IRS’ denial of a tax deduction to members of the Church of
Scientology for payments made for “auditing” and “training” services. The members
claimed that these services were central to the practice of their faith and that the
payments made for them were “fixed donations” entitled to be treated as charitable
contributions under the Internal Revenue Code. But the Court denied the claim, 5-
2.31 The Court said that it doubted that the disallowance of the deduction placed any
“substantial burden” on the Scientologists’ practice of their religion but that even if
it did, the disallowance was justified by the compelling governmental interest in
maintaining a uniform tax system, “free of `myriad exceptions flowing from a wide
variety of religious beliefs.’”32
Finally, in Jimmy Swaggart Ministries v. Board of Equalization33 in 1990, the
Court unanimously upheld the imposition of a general sales and use tax on a religious
organization’s sale of religious materials. Nominally using the strict scrutiny test, the
Court found the imposition of the taxes to violate no religious precept of the religious
organization and to impose no burden on religious organizations different from that
imposed on other sellers. Although the taxes reduced the amount of money the
religious organization had to spend on its religious activities, the Court held that
burden to be “not constitutionally significant.”
These four decisions preserved the form, if not the substance, of strict scrutiny.
Four other decisions eschewed even the form. In Goldman v. Weinberger34 the Court
upheld a military dress code against the free exercise claim of a Jewish psychologist
who felt religiously obligated to wear a yarmulke while on duty. An Air Force
regulation mandating “uniform dress” and barring the wearing of headgear while
indoors had been construed to bar yarmulkes. The Court held the Sherbert-Yoder-
Thomas test to be inapplicable in the military context and, as a consequence, found
the free exercise clause to require no exception for religious apparel. “The military,”
the Court said, “is ... a specialized society separate from civilian society” and thus
“our review of military regulations challenged on First Amendment grounds is far
more deferential than constitutional review of similar laws or regulations designed
for civilian society.” “Courts,” it asserted, “must give great deference to the
professional judgment of military authorities concerning the relative importance of
a particular military interest.”35 So long as the military regulations in question are
impose a racial nondiscrimination condition on the grant of tax-exempt status to private
schools; but he agreed that if such a condition were imposed, it would not violate the free
exercise clause. See id. at 622, n. 3 (Rehnquist, J., dissenting).
30 490 U.S. 680 (1989).
31 Neither Justice Brennan nor Justice Kennedy participated.
32 Id. at 687, quoting United States v. Lee, supra, at 260.
33 493 U.S. 378 (1990).
34 475 U.S. 503 (1986).
35 Id. at 506-07. The majority was composed of Chief Justice Burger and Justices
reasonable and evenhanded, it held, the free exercise clause is not violated. The
decision was by a 5-4 margin.36
In O’Lone v. Estate of Shabazz37 the Court held strict scrutiny also not to be
applicable in the prison context. The case involved a free exercise challenge by
several Muslim prisoners against New Jersey prison regulations that had the effect
of preventing their participation in Jumu’ah, a weekly worship service commanded
by the Koran. In upholding the regulations, again by a 5-4 margin, the Court asserted
that “we take this opportunity to reaffirm our refusal, even where claims are made
under the First Amendment, to `substitute our judgment on ... difficult and sensitive
matters of institutional administration’ (citation omitted) for the determinations of
those charged with the formidable task of running a prison.”38 “To ensure that courts
afford appropriate deference to prison officials,” it stated, prison regulations need be
examined only to determine whether they are “reasonably related to legitimate
penological interests” such as security and rehabilitation.39 Finding the regulations
in question to be related to both those interests, the Court denied the prisoners’ free
In Bowen v. Roy40 the Court held strict scrutiny to be inappropriate with respect
to the government’s internal administrative practices that were alleged to burden an
individual’s religious beliefs and practices. That case involved a challenge by an
Abenaki Indian family to the government’s requirements that applicants for benefits
under the Aid to Families with Dependent Children program furnish state welfare
agencies the Social Security numbers of all members of their household and that the
agencies use the numbers in administering their AFDC program.41 The Indians’
interpretation of their religion deemed personal numerical identifiers a “great evil”
to be avoided and perceived their use as preventing an individual from exercising
control over his life and robbing him of his spirit. The Court, without a majority
opinion, remanded the issue concerning the constitutionality of requiring the Indians
to provide their Social Security numbers as a condition of receiving assistance back
to the lower court to see if it had become moot. But on the issue of the
Rehnquist, White, Powell, and Stevens.
36 Congress, it might be noted, responded to this decision by adopting a statute permitting
military personnel to wear items of religious apparel while on duty so long as the items are
“neat and conservative” and do not “interfere with the performance of the member’s military
duties.” See 10 U.S.C. 774 (1988).
37 482 U.S. 342 (1987).
38 Id. at 353, quoting Block v. Rutherford, 468 U.S. 576, 588 (1984).
39 Id. at 349.
40 476 U.S. 693 (1986).
41 The case was brought by an Abenaki Indian who claimed on behalf of his two-year old
daughter that a Social Security number would undermine the uniqueness of her person and
spirit and prevent her from asserting the control over her life necessary to develop spiritual
power. That damage, he claimed, would flow both from obtaining a Social Security number
for her and from the use of that number by the state welfare agency.
constitutionality of the government using Social Security numbers already in its
possession to administer its programs, the Court, by an 8-1 margin, found no free
exercise violation.42 The Court asserted that the claim amounted to an effort “to
dictate the conduct of the Government’s internal procedures” and a “demand that the
Government join in the (Indians’) chosen religious practices ....”43 The claimant’s
ability to “believe, express, and exercise his religion,” the Court held, was simply not
impaired by the government’s administrative use of a Social Security number.
Finally, the Court held strict scrutiny analysis to be inapplicable with respect to
the government’s land use decisions in Lyng v. Northwest Indian Cemetery
Protective Association.44 The proposed building of a road for logging purposes in a
region of a National Forest in California had been challenged on free exercise
grounds by several Indian tribes that deemed the region to be sacred and used it for
religious ceremonies. But the Court held that “even if we assume that ... the ... road
will virtually destroy the Indians’ ability to practice their religion, the Constitution
simply does not provide a principle that could justify upholding (their) legal
claims.”45 The Court said the critical question was whether the government’s action
directly coerced individuals into violating their religious beliefs or imposed unique
disabilities on religious activities, and it held that the road-building plan did not. The
road, it found, would only have “incidental effects” that might “make it more difficult
to practice certain religions”46; and thus, the Court said, the government did not need
to demonstrate a compelling justification for the plan. “Whatever may be the exact
line between unconstitutional prohibitions on the free exercise of religion and the
legitimate conduct by government of its own affairs,” the Court stated, “the location
of the line cannot depend on measuring the effects of a governmental action on a
religious objector’s spiritual development.”47 Again, the margin of decision was 5-4.
Between Thomas and Smith the Court did employ strict scrutiny to invalidate
government action on two occasions, both involving state denials of unemployment
compensation to individuals who were unemployed for religious reasons. In Hobbie
v. Unemployment Appeals Commission of Florida48 the Court held unconstitutional
Florida’s denial of unemployment benefits to a person who had been fired from her
retail sales job because she had joined the Seventh Day Adventist Church and was
no longer available for work on her Sabbath, which ran from sundown Friday to
sundown Saturday. In an 8-1 decision, the Court held this case to be controlled by
Sherbert and Thomas and thus subject to strict scrutiny. Finding no significant
differences between those cases and this one, it reiterated that “the State may not
42 Only Justice White dissented from this portion of the Court’s ruling, saying without
further explanation that Thomas and Sherbert “control this case.” See Bowen v. Roy, 476
U.S. at 733 (White, J., dissenting).
43 Id. at 700.
44 485 U.S. 439 (1988).
45 Id. at 451-52.
46 Id. at 450.
47 Id. at 451.
48 480 U.S. 136 (1987).
force an employee `to choose between following the precepts of her religion and
forfeiting benefits, ... and abandoning one of the precepts of her religion in order to
Similarly, in Frazee v. Illinois Department of Employment Security50 the Court
unanimously held unconstitutional Illinois’ denial of unemployment benefits to an
individual who refused a job that would have involved working on Sunday, his
Sabbath. The allegedly unique fact of the case was that Frazee belonged to no
organized religious sect or church and his refusal to work, thus, was based on his
personal beliefs as a Christian and not on the tenets or teachings of any established
religious body. But the Court found this fact not to distinguish the case from
Sherbert, Thomas, and Hobbie. In every one of those cases, it said, the claimant was
“forced to choose between fidelity to religious belief and ... employment.”51 Finding
no compelling justification for Illinois’ denial of benefits, the Court held it
In sum, it is clear that since 1980 the Court has substantially narrowed the scope
of the free exercise clause. At the beginning of the decade Thomas, building on the
foundation of Sherbert and Yoder, seemed to command that the government
accommodate minority religious practices in all but the most compelling
countervailing circumstances. But after Goldman, Shabazz, Roy, Lyng, and Smith,
that can no longer be said to be the case. Those decisions reassessed the balance
between religious interests and governmental interests and resurrected the standard
of review for free exercise cases that the Court frequently used prior to its 1963
decision in Sherbert. That standard is essentially one of formal neutrality. Except
in the narrow category of eligibility for governmental benefits, the ill-defined area of
“hybrid” claims, and overt government discrimination, the free exercise clause means
only that government must regulate religious practices in a neutral, evenhanded
manner. The clause no longer compels the government to exempt particular religious
practices from the prohibitions and requirements of its statutes and regulations or to
accommodate religious needs in its actions. By the beginning of the 1990s, then-
Justice Rehnquist’s dissent in Thomas had become the Court’s standard for most free
Where ... a State has enacted a general statute, the purpose and effect of which
is to advance the State’s secular goals, the Free Exercise Clause does not ...
require the State to conform that statute to the dictates of religious conscience of52
49 Id. at 146, quoting Sherbert v. Verner, supra, at 404.
50 489 U.S. 829 (1989).
51 Id. at 1516, quoting Hobbie, supra, at 144.
52 Thomas v. Review Board, Indiana Employment Security Division, 450 U.S. at 723
(Rehnquist, J., dissenting).
(c) The Aftermath of Smith.
Since the Smith decision in 1990, the Court has rendered only one other free
exercise decision, albeit a significant one. Primary attention has focused on the
political reaction to Smith and the resulting struggle between Congress and the Court
about which branch of government has primary responsibility for determining the
scope to be afforded constitutional rights such as the free exercise of religion. That
struggle ultimately resulted in a substantial diminution in Congress’ ability to
legislate protections for constitutional rights beyond what the Court has allowed. The
following sections summarize these developments.
(1) Lukumi Babalu Aye. In Church of the Lukumi Babalu Aye, Inc. v. City53
of Hialeah the Court employed Smith’s framework of analysis but still found strict
scrutiny to be applicable. As a result, the Court held unconstitutional several city
ordinances prohibiting the ritual sacrifice of animals.
The case arose when the Church of the Lukumi Babalu Aye, Inc., sought to
bring the practices of the Santeria religion into the open by establishing a church and
cultural center in Hialeah, Florida. The Santeria faith has no centralized authority or
written tenets but centers on the performance of certain rituals and ceremonies for
such life events as birth, marriage, sickness, and death. These rituals often involve
the sacrifice of goats, fowl, sheep, and/or turtles by means of cutting their carotid
arteries and previously had been performed in private homes with only limited public
awareness. When the proposal to establish a Santeria church and cultural center in
Hialeah became public, these practices aroused vehement public antipathy. The City
Council responded by adopting a series of resolutions and ordinances condemning
Santeria’s practices and making various aspects of the Santeria sacrifice ritual illegal.
The Supreme Court held Hialeah’s ordinances to violate the free exercise clause,
9-0. The Court noted that under Smith “a law that is neutral and of general
applicability need not be justified by a compelling governmental interest even if the
law has the incidental effect of burdening a particular religious practice.”54 But it
found Hialeah’s ordinances to be neither neutral nor of general applicability, because
they prohibited the killing of animals only for religious reasons. Killing for secular
reasons — hunting, pest control, euthanasia, etc. — was not forbidden. As a
consequence, Justice Kennedy concluded for the Court, “the ordinances had as their55
object the suppression of religion,” and strict scrutiny of the ordinances was still
appropriate under the Smith framework of analysis. Finding that Hialeah failed to
show either that the ordinances served any compelling governmental interests or that
they were drawn in narrow terms to accomplish their objectives, Justice Kennedy
found for the Court that the ordinances violated the free exercise clause:
53 508 U.S. 520 (1993).
54 Id. at 2226.
55 Id. at 2231.
Legislators may not devise mechanisms, overt or disguised, designed to persecute
or oppress a religion or its practice. The laws here in question were enacted56
contrary to these constitutional principles, and they are void.
Thus, Babalu Aye made clear that, notwithstanding the Court’s relaxation of the
strictures of the free exercise clause in Smith, government still cannot single out
particular religious practices for special burdens not imposed on analogous secular
conduct. The free exercise clause, as construed in Smith, may not mandate any
exemptions for religious practices from burdensome or even prohibitory laws; but it
does mandate that such laws be religiously neutral and generally applicable.
(2) RFRA and City of Boerne. The apparent abandonment of strict scrutiny
in Smith aroused widespread concern in the religious community and elsewhere and
led Congress, after three years of consideration, to enact the “Religious Freedom
Restoration Act” (RFRA).57 Purportedly leaving Smith intact as the constitutional
standard for free exercise cases, RFRA mandated the use of the strict scrutiny test as
a statutory standard governing the interaction of government and religion. As
enacted, RFRA provided that a statute or regulation of general applicability could
lawfully burden a person’s exercise of religion only if it were shown to be “essential
to further a compelling governmental interest and (to be) the least restrictive means
of furthering that compelling governmental interest.” RFRA made the standard
applicable to governmental action at every level of government — federal, state, and
local — and allowed aggrieved persons to bring suit if they believed their free
exercise of religion had been restricted by government in violation of the statutory
strict scrutiny standard.
However, in 1997 the Supreme Court held RFRA to be unconstitutional as58
applied to the states and localities. In City of Boerne, Texas v. Flores the Court
held, 6-3, that Congress lacks the constitutional power to impose such a sweeping
requirement on the states. In enacting RFRA Congress had relied, in part, on its
power under § 5 of the Fourteenth Amendment to enact “appropriate legislation” to
enforce the substantive protections of the Amendment, including the religious liberty
protections incorporated in the due process clause. But the Court said that RFRA
exceeded Congress’ power under §5. In imposing a strict scrutiny standard for free
exercise claims, it stated, Congress altered the meaning of the free exercise clause as
determined by the Court, and “[l]egislation which alters the meaning of the Free
Exercise Clause cannot be said to be enforcing the Clause.”
Moreover, the Court asserted, RFRA constituted “a considerable ... intrusion
into the States’ traditional prerogatives and general authority to regulate for the health
and welfare of their citizens.” In enacting RFRA, it noted, Congress had failed to
develop a legislative record that showed extensive denials of religious liberty. Yet
RFRA was so broad, the Court said, that it intruded “at every level of government,
displacing laws and prohibiting official actions of almost every description and
regardless of subject matter.” As a consequence, the Court concluded, RFRA
56 Id. at 2234.
57 P.L. 103-41, 103d Cong., 1st Sess. (Nov. 16, 1993); 42 U.S.C.A. 2000bb et seq.
58 521 U.S. 407 (1997).
“reflects a lack of proportionality or congruence between the means adopted and the
legitimate end to be achieved ... and contradicts vital principles necessary to maintain
separation of powers and the federal balance.”
In short, the Court in Boerne affirmed its own primacy in determining the scope
to be afforded the rights protected in the Constitution. Congressional efforts to
protect those rights, it said, cannot – at least in the absence of a strong record of
abuse needing to be rectified – broaden that right beyond what the Court has
(3) Administration and Congressional Response to Boerne. In
response to the Boerne decision, the Clinton Administration adopted a policy
affirming that RFRA remains valid for the federal government. For that application,
it said, Congress did not rely on § 5 of the Fourteenth Amendment but its legislative
powers under Article I of the Constitution. The current Bush Administration has
continued to maintain that policy.
Also in response, Congress, after considerable debate, enacted the “Religious59
Land Use and Institutionalized Persons Act of 2000” (RLUIPA). That statute is
narrower in scope and relies on different Congressional powers than RFRA. It
imposes a statutory strict scrutiny test on state and local zoning and landmarking laws
that “impose a substantial burden on an individual’s or institution’s exercise of
religion” and on state and local actions that impair the religious practices of
individuals in public institutions such as prisons, mental hospitals, and nursing
homes. But instead of using § 5 of the Fourteenth Amendment, RLUIPA is based
largely on Congress’ interstate commerce and spending powers under Article I, § 8,
of the Constitution.
Both the Administration’s contentions that RFRA remains applicable to the
federal government and RLUIPA are being challenged in the courts. No case has yet
been accepted for review by the Supreme Court.
(d) Conclusion. Both Babalu Aye and City of Boerne illustrate that the
ferment on and off the Court over the free exercise clause was not ended by Smith.
In Babalu Aye Justices Blackmun, O’Connor, and Souter, although joining in the
Court’s judgment in the case, all criticized its use of the Smith rule. Justice Souter
argued that the Smith rule reflects a particularly narrow conception of neutrality. “A
law that is religion neutral on its face or in its purpose,” he said, “may lack neutrality
in its effect by forbidding something that religion requires or requiring something that
religion forbids.” Thus, he argued, the “formal” neutrality reflected in the Smith
rule, which only bars laws which intentionally discriminate against religion, needs
to be supplemented with “substantive” neutrality, which would “generally require
government to accommodate religious differences by exempting religious practices
from formally neutral laws.” He said as well that Smith is “in tension with” the
Court’s prior free exercise decisions and with the historical evidence of the original
intent of the free exercise clause. In a proper case, he said, the Court should “re-
examine the rule Smith declared.” Justices Blackmun and O’Connor reiterated the
59 P.L. 106-204 (Sept. 22, 2000); 114 Stat. 804; 42 U.S.C.A. 2000cc et seq.
view they articulated in their opinions in Smith that “Smith was wrongly decided.”
Similarly, in City of Boerne Justices O’Connor and Breyer (Blackmun’s replacement)
argued that the case should have been used as a vehicle for overturning Smith, and
Justice Souter contended that there should at least have been briefing and argument
on the merits of Smith before the Court addressed the question of Congress’ authority
under § 5 of the Fourteenth Amendment.
Nonetheless, the central fact remains: Since 1980 the Supreme Court has
substantially restricted the constitutional protection afforded religious practices by
the free exercise clause. As a matter of constitutional law, Smith reigns. Intentional
discrimination against religious practices violates the free exercise clause, but not
inadvertent discrimination that results from the application of statutes and regulations
of general applicability. Moreover, Congress’ power to alter the Smith standard by
legislation has been substantially limited by the decision in Boerne.
“Congress Shall Make No Law Respecting an Establishment
of Religion...”: Lemon and the Lessons of History
The debates among the Justices about the free exercise clause in the period since
1980 were, at least until Smith, relatively sedate. But that has not been the case with
the establishment clause. On the construction of that clause the Justices have
disagreed vigorously and, at times, testily. The Court has not yet altered its
interpretation of the establishment clause as fully as it has the construction of the free
exercise clause, but the changing composition of the Court has still had a substantial
impact. Since 1980 the Court has rendered a number of decisions that affirm
government’s discretion to take actions protecting or benefitting religion; it has
substantially modified the Lemon test it formulated in 1971 to guide its consideration
of the constitutionality of government actions under the establishment clause; and in
several of its most recent rulings it overturned or narrowed a number of its prior
establishment clause decisions.
The arguments on the Court have ranged over virtually every aspect of its
establishment clause jurisprudence. In part the criticism of its past decisions has
been wholesale in nature. Various Justices have termed the Court’s establishment
clause jurisprudence “embarrassing,”60 “unprincipled,”61 “in hopeless disarray,”62 and63
as manifesting an “unjustified hostility toward religion.” But four aspects of the
separationist interpretation of the establishment clause have been particular focal
points for criticism and debate: (1) the Court’s repeated use of Jefferson’s phrase
“wall of separation between church and state” as a metaphor for the meaning of the
establishment clause; (2) its reliance on European and colonial history in interpreting
the clause; (3) its development and application of what is known as the tripartite, or
60 Edwards v. Aguillard, 482 U.S. 578, 639 (1987) (Scalia, J., dissenting).
61 Wallace v. Jaffree, 472 U.S. 38, 113 (1985) (Rehnquist, J., dissenting).
62 Rosenberger v. The Rector and Visitors of the University of Virginia, supra (Thomas, J.,
63 County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492
U.S. 573, 655 (1989) (Kennedy, J., dissenting).
Lemon, test; and (4) its understanding of the original intent of the first Congress in
formulating the establishment clause. All of these aspects have been interwoven in
the Court’s establishment clause jurisprudence, and all are critical to any
reinterpretation. The following subsections summarize the contentions made by the
Justices on these issues and the effect on its establishment clause jurisprudence.
(a) The Separationist Understanding. In the seminal decisions of the
Court’s modern establishment clause jurisprudence, the Court rooted its
interpretation of the clause in the history of the American colonies and of the
colonists’ European forebears. The First Amendment “is at once,” the Court said in64
1947, “the refined product and the terse summation of that history.” The Court
cited in particular the “turmoil, civil strife, and persecutions” that had been endemic
in Europe in the centuries preceding and contemporaneous with the colonization of
America as various religious sects allied themselves with government to establish65
With the power of government supporting them, at various times and places,
Catholics had persecuted Protestants, Protestants had persecuted Catholics,
Protestant sects had persecuted other Protestant sects, Catholics of one shade of
belief had persecuted Catholics of another shade of belief, and all of these had
from time to time persecuted Jews. In efforts to force loyalty to whatever
religious group happened to be on top and in league with the government of a
particular time and place, men and women had been fined, cast in jail, cruelly
tortured, and killed.66
Many of the early settlers came to America, the Court said, to “escape the bondage
which compelled them to support and attend government-favored churches.”67
Although they often engaged in the same practices themselves, the Court observed
that over time the colonists gradually developed a “feeling of abhorrence” about such
practices and by the time of the Revolution had begun to disestablish the unions of
church and state that existed.
In these early decisions the Court stressed as “particularly relevant” to the
meaning of the First Amendment the experience of Virginia, which, after a
momentous struggle, disestablished the Anglican Church in 1785 and adopted
Jefferson’s “Bill for Religious Liberty.” Virginia, it said, “provided a great stimulus
and able leadership” for the view that “individual religious liberty could be achieved
best under a government which was stripped of all power to tax, to support, or
otherwise to assist any or all religions, or to interfere with the beliefs of any religious68
individual or group.” Virginia’s experience, the Court said, “best reflect[ed] the
64 Everson v. Board of Education, 330 U.S. 1, 33 (1947) (Rutledge, J., dissenting).
65 Id. at 8 (opinion of the Court)..
66 Id., at 9.
68 Id. at 11.
long and intensive struggle for religious freedom in America.”69 Indeed, so
instructive was Virginia’s example, the Court declared, that “the provisions of the
First Amendment ... had the same objective and were intended to provide the same
protection against governmental intrusion on religious liberty as the Virginia
st at ut e.”70
As part of this emphasis, the Court also stressed the importance of the views of
James Madison and Thomas Jefferson to the interpretation of the First Amendment.
Both had played leading roles in disestablishing the Anglican church in Virginia:
Madison was the author of the “Memorial and Remonstrance Against Religious
Assessments” in 1784 that articulated numerous arguments against taxation for the
benefit of religious institutions; and Jefferson was the author of the “Virginia Bill
for Religious Liberty” that ultimately was enacted in 1785.71 Madison also was a
primary architect of the Bill of Rights in the First Congress. Indeed, so central was
his role in the latter process, one Justice said, that the establishment clause “is the
compact and exact summation of its author’s views formed during his long struggle
for religious freedom”72:
All the great instruments of the Virginia struggle for religious liberty thus
became warp and woof of our constitutional tradition, not simply by the course
of history, but by the common unifying force of Madison’s life, thought and
sponsorship. He epitomized the whole of that tradition in the Amendment’s73
compact, but nonetheless comprehensive, phrasing.
This history and the debates in the First Congress on what became the First
Amendment, the Court said, showed that the establishment clause was intended to
do more than prohibit direct government compulsion or coercion in matters of
religion. It identified two broad purposes underlying the clause:
Its first and most immediate purpose rested on the belief that a union of
government and religion tends to destroy government and to degrade religion.
The history of governmentally established religion, both in England and in this
country, showed that whenever government had allied itself with one particular
form of religion, the inevitable result had been that it had incurred the hatred,
disrespect and even contempt of those who held contrary beliefs. That same
history showed that many people had lost their respect for any religion that had
relied upon the support of government to spread its faith. The Establishment
Clause thus stands as an expression of principle on the part of the Founders of
our Constitution that religion is too personal, too sacred, too holy, to permit its
“unhallowed perversion” by a civil magistrate.
69 McGowan v. Maryland, 366 U.S. 420, 437 (1961).
70 Id. at 13.
71 Id.; Engel v. Vitale, 370 U.S. 421, 427-28 (1962). See also McGowan v. Maryland, 366
U.S. 420, 437-440 (1961).
72 Everson v. Board of Education, 330 U.S. at 31 (Rutledge, J., dissenting).
73 Id. at 39.
Another purpose of the Establishment Clause rested upon an awareness of the
historical fact that governmentally established religions and religious
persecutions go hand in hand .... It was in large part to get completely away from
this sort of systematic religious persecution that the Founders brought into being
our Nation, our Constitution, and our Bill of Rights with its prohibition against74
any governmental establishment of religion.
Thus, the Court concluded that the establishment clause, “in its final form, did not
simply bar a congressional enactment establishing a church; it forbade all laws
respecting an establishment of religion .... [T]he First and Fourteenth Amendment
afford protection against religious establishment far more extensive than merely to75
forbid a national or state church.” In the classic statement of the separationist
understanding, Justice Black stated for the Court:
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 .... In the words of Jefferson, the clause against
establishment of religion by law was intended to erect “a wall of separation76
between church and State.”
Initially, every member of the Court joined in this separationist reading of the
historical underpinnings and consequent broad scope of the establishment clause.77
74 Engel v. Vitale, 370 U.S. at 431-33.
75 McGowan v. Maryland, supra, at 441-42.
76 Everson v. Board of Education, 330 U.S. at 15-16. Jefferson had created his “wall of
separation” metaphor in 1802. See n. 1.
77 Dissenting from the result but not the historical reasoning of the majority in Everson, 330
U.S. 1 (1947), Justice Rutledge asserted for himself and three other dissenters the following
understanding of the establishment clause:
Not simply an established church, but any law respecting an establishment of
religion is forbidden. ...The Amendment’s purpose was not to strike merely at the
official establishment of a single sect, creed or religion, outlawing only a formal
relation such as had prevailed in England and some of the colonies. Necessarily
it was to uproot all such relationships. But the object was broader than
separating church and state in this narrow sense. It was to create a complete and
permanent separation of the spheres of religious activity and civil authority by
comprehensively forbidding every form of public aid or support for religion.
The tripartite Lemon test developed more slowly. Not until Abington School
District v. Schempp78 in 1963 did the Court first distill a test to help it ferret out
establishment clause violations. In that case it stated that to pass muster under the
clause governmental action had to have “a secular legislative purpose and a primary
effect that neither advances nor inhibits religion.”79 Subsequently, in Walz v. Tax
Commission of New York80 in 1970 the Court articulated a requirement that
government action not precipitate excessive entanglement between government and
religion. Finally, in Lemon v. Kurtzman81 in 1971 the tripartite test gained its full
First, the statute must have a secular legislative purpose; second, its principal or
primary effect must be one that neither advances nor inhibits religion ...; finally,
the statute must not foster “an excessive entanglement with religion.”
The Court further held that a statute or governmental action had to satisfy every
prong of the tripartite test in order to pass constitutional muster. Although often
stating that the test was merely a “guideline” or “signpost,” the Court used the test
in every establishment clause case but one between its inception and 199182; and after
78 374 U.S. 203 (1963).
79 Id. at 222.
80 397 U.S. 664 (1970).
81 403 U.S. 602, 612-13 (1971).
82 See Marsh v. Chambers, 463 U.S. 783 (1983) (upholding the constitutionality of
legislative prayers). Larson v. Valente, 456 U.S. 228 (1983) is also sometimes cited as a
case that did not use the Lemon standard, because the Court primarily relied on a strict
scrutiny test in striking down a charitable solicitations statute as religiously discriminatory.
But that contention is not wholly correct, because the Court also used the entanglement
prong of the tripartite test. In church-state cases subsequent to 1991 the Court has used (1)
a coercion test (see Lee v. Weisman, 505 U.S. 577 (1992) (holding the inclusion of prayers
by a clergyman in a public school commencement ceremony to be unconstitutional)) and
Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000) (holding student-led
prayers prior to school football games unconstitutional)) ; (2) a neutrality test (see Zobrest
v. Catalina Foothills School District, 509 U.S. 1 (1993) (upholding the provision of a sign
language interpreter to a deaf student attending a Catholic high school); Board of Education
of the Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994) (striking down
a state statute creating a special education school district for a single religious group);
Rosenberger v. The Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)
(upholding the funding of a student religious publication out of a student activities fund);
and Good News Club v. Milford Central School, 533 U.S. 98 (2001) (upholding the right
of a religious club to meet on school property after school hours)); or (3) a modified version
of the Lemon test (see Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753
(1995) (using an endorsement version of the Lemon test in upholding the private display of
a cross at Christmastime in a public square in front of a State Capitol building); Agostini v.
Felton, 521 U.S. 203 (1997) (submerging the entanglement prong of the Lemon test into the
primary effect prong and construing primary effect to mean using religion as a criterion for
benefits or government engaging in religious indoctrination in upholding as constitutional
the provision by public school teachers of remedial educational services to sectarian
schoolchildren on the premises of the sectarian schools)); and Mitchell v. Helms, 530 U.S.
a lapse of several years, the Court has used it anew in several of its most recent
establishment clause decisions, albeit in modified form.83
(b) The Critique. Notwithstanding the initial unanimity of the Court’s
historical analysis and its almost unfailing recourse to the tripartite test, every aspect
of the separationist understanding of the establishment clause has come under
persistent criticism. Indeed, the Court’s interpretation of history and use of
Jefferson’s phrase “wall of separation” as a metaphor for the establishment clause84
was criticized by Justice Reed as early as 1948, and Justice White raised questions
about the excessive entanglement prong of the tripartite test in the very case in which85
the test was first fully articulated. But during the 1980s criticism of the history
relied upon by the Court, the “wall of separation” metaphor, the tripartite test, and the
Court’s understanding of the original intent of the establishment clause crescendoed.
During this time Chief Justices Burger and Rehnquist and Justices White, Kennedy,
and Thomas all attacked the historical justifications for a separationist construction
of the establishment clause. The tripartite test, in turn, was attacked in part or in
whole by Chief Justice Rehnquist and Justices White, O’Connor, Scalia, Kennedy,
The critiques have been voiced in both majority decisions and concurring and86
dissenting opinions. In 1983 in Marsh v. Chambers, for instance, a majority of the
Court emphasized other aspects of American history in upholding as constitutional
the practice of legislatures opening their daily sessions with prayer by a paid
chaplain, 6-3. Chief Justice Burger, writing for the Court, ignored the history of
religious conflict in Europe and the colonies and stressed instead the ubiquity of the
practice of legislative prayer from colonial times forward. He also cited as critically
important the fact that the First Congress authorized the appointment of paid
chaplains for itself within three days of agreeing on the language of the Bill of Rights
and that James Madison served on the House committee to decide how chaplains
should be chosen and voted for the bill authorizing the payment of the chaplains.
Eschewing any reference to, or use of, the tripartite Lemon test in deciding the case,
the Chief Justice concluded that legislative prayer “has become part of the fabric of
our society ... [and] is simply a tolerable acknowledgment of beliefs widely held
among the people of this country.”87
793 (2000) (the Agostini modification used in upholding program providing instructional
materials and equipment to sectarian schools).
83 Agostini v. Felton, 521 U.S. 203 (1997); Mitchell v. Helms, 530 U.S. 793 (2000); and
Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).
84 McCollum v. Board of Education, 333 U.S. 203, 244-48 (1948) (Reed, J., dissenting). Of
the “wall of separation” metaphor, Justice Reed said that “[a] rule of law should not be
drawn from a figure of speech.” Id. at 247.
85 Lemon v. Kurtzman, 403 U.S. at 661-671 (White, J., dissenting).
86 463 U.S. 783 (1983).
87 Marsh v. Chambers, 463 U.S. at 792.
One year later in Lynch v. Donnelly88 a narrower majority of the Court expanded
on that accommodationist emphasis in upholding a city’s inclusion of a creche in a
Christmas display that included such other items as a Santa Claus house, reindeer,
Santa’s sleigh, colored lights, and a banner proclaiming “Season’s Greetings.” Chief
Justice Burger, again writing for the Court, this time used the tripartite test but
stressed that the Court was not “confined to any single test or criterion in this
sensitive area.”89 More significantly, the Chief Justice emphasized what he called
“an unbroken history of official acknowledgment by all three branches of government
of the role of religion in American life from at least 1789.”90 Official invocations of
Divine guidance, proclamations of days of thanksgiving and prayer, legislative
chaplains, the national motto “In God We Trust” on the nation’s currency, the phrase
“one nation under God” in the Pledge of Allegiance, the designation of Thanksgiving
and Christmas as national holidays, the invocation “God save the United States and
this Honorable Court” at the opening of judicial sessions, the display of religious
paintings in public art galleries — all illustrated the principle, the Chief Justice
asserted, that the Constitution does not require “complete separation of church and
state ... [but] affirmatively mandates accommodation ... of all religions, and forbids
hostility toward any.”91 The metaphor “wall of separation,” the Chief Justice stated,
fails to give “a wholly accurate description of the practical aspects of the relationship
that in fact exists between church and state.”92 The decision was 5-4.
Dissenting in Wallace v. Jaffree93 in 1985, Justice Rehnquist — soon to be
elevated to Chief Justice — authored the most searing and comprehensive critique
of the Court’s separationist construction of the establishment clause. He condemned
the Court’s use of Jefferson’s phrase “wall of separation” as a metaphor for the
establishment clause as “misleading,” “useless,” a “mischievous diversion,” and a
“metaphor based on bad history.”94 Jefferson, Justice Rehnquist noted, did not even
play a direct role in the adoption of the Bill of Rights, as he was in France at the time
as the American ambassador. Madison, he agreed, was “undoubtedly the most
important architect ... of the Bill of Rights”; but the records of the First Congress,
Justice Rehnquist claimed, demonstrated that Madison’s role in the drafting and
adoption of the language of the religion clauses was not that of “an advocate of
incorporating the Virginia Statute of Religious Liberty into the United States
Constitution” but of “an advocate of sensible legislative compromise.”95 Based on
the records of the debate, it is “indisputable,” Justice Rehnquist asserted, that
88 465 U.S. 668 (1984).
89 Id. at 679.
90 Id. at 674.
91 Id. at 673.
93 472 U.S. 38 (1985). Justice Rehnquist’s critique of the Court’s use of history was largely
informed by the analysis set forth in ROBERT L. CORD, SEPARATION OF CHURCH
AND STATE: HISTORICAL FACT AND CURRENT FICTION (1982).
94 Id. at 92, 107
95 Id. at 98.
Madison saw the establishment clause “as designed to prohibit the establishment of
a national religion, and perhaps to prevent discrimination among sects. He did not
see it as requiring neutrality on the part of government between religion and
irreligion.”96 The contrary view set forth by the Court in Everson v. Board of
Education, supra, he asserted, was “totally incorrect.”97
Justice Rehnquist further noted that the First Congress re-enacted the Northwest
Ordinance of 1787, which provided land grants in the designated territories for both
sectarian and public schools, and adopted a resolution calling on the President to
designate a “day of public thanksgiving and prayer.” Moreover, he said, in the
nineteenth century Congress routinely appropriated money to support sectarian Indian
education by religious organizations, and the eminent constitutional authorities
Joseph Story and Thomas Cooley both asserted that the religion clauses permitted
nondiscriminatory governmental assistance to religion. Agreeing with the
separationists’ view that “[t]he true meaning of the Establishment Clause can only
be seen in its history,”98 Justice Rehnquist, nonetheless, concluded that prior to the
Court’s modern attempts to construe the establishment clause the clause had a “well-
accepted meaning: it forbade establishment of a national religion, and forbade
preference among religious sects or denominations.... [It] did not require government
neutrality between religion and irreligion nor did it prohibit the Federal Government
from providing nondiscriminatory aid to religion.”99 The wall of separation
metaphor, he said, “should be frankly and explicitly abandoned.”100
With respect to the tripartite Lemon test, Justice Rehnquist charged that it “has
no basis in the history of the amendment it seeks to interpret, is difficult to apply, and
yields unprincipled results ....”101 The secular purpose prong, he said, “has proven
mercurial in application,”102 because it is not clear whether it prohibits all aid to
sectarian institutions or only that which is accompanied by a stated purpose to aid
religion. The entanglement prong, he asserted, had become “divorced” from its use
in a historical context in Walz and, when joined with the primary effect prong, had
created a “Catch-22" in school aid cases: the effect test required such government
aid to be “closely watched lest it be put to sectarian use,” but the entanglement test
rendered aid unconstitutional precisely because it is closely watched. Finally, he
claimed, the tripartite test “has caused this Court to fracture into unworkable plurality
opinions,” has yielded “unprincipled results,” and “has produced only consistent
97 Id. at 99.
98 Id. at 113.
99 Id. at 106.
100 Id. at 107.
101 Id. at 112.
102 Id. at 108.
103 Id. at 110, 112.
Justice White, in a separate dissent in Wallace, expressed appreciation for
Justice Rehnquist’s explication of the history of the religion clauses and, as he had
even in the 1970s,104 called for “a basic reconsideration of our precedents.”105
In Edwards v. Aguillard106 in 1987, Justice Scalia, appointed to the Court in
1986, began to articulate what has become a steady drumbeat of derision about the
Court’s establishment clause jurisprudence. In that case the Court held
unconstitutional a Louisiana statute that mandated that creationism be taught along
with evolution in the public schools on the grounds the statute was intended to
endorse and promote a particular religious doctrine. Justice Scalia dissented from
that conclusion and termed the Court’s establishment clause jurisprudence
“embarrassing.”107 More particularly, he asserted that the Court’s application of the
purpose prong of the tripartite test had “made such a maze of the Establishment
Clause that even the most conscientious governmental officials can only guess what
motives will be held unconstitutional.” The purpose test, he charged, “exacerbates
the tension between the Free Exercise and Establishment Clauses, has no basis in the
language or history of the Amendment, and ... has wonderfully flexible
consequences.”108 More generally, he has “bemoaned the strange Establishment
Clause geometry of crooked lines and wavering shapes [Lemon’s] intermittent use
has produced,” and has likened the test to “some ghoul in a late-night horror movie
that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed
and buried ..., frightening the little children and ... attorneys ....”109
In 1989 in County of Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter110 Justice Kennedy, appointed to the Court in 1988, suggested
that “substantial revision of our Establishment Clause doctrine may be in order.”111
In that case the Court held unconstitutional the display of a creche by itself in a
county courthouse but found constitutional the display of a Christmas tree and a
menorah in front of a city-county building during the Christmas and Chanukah
seasons. Justice Kennedy argued in partial dissent that the Court’s holding with
respect to the creche display “reflects an unjustified hostility toward religion, a
hostility inconsistent with our history and our precedents.”112 “Government policies
of accommodation, acknowledgment, and support for religion,” he said, “are an
104 See, e.g., Committee for Public Education v. Nyquist, 413 U.S. 756, 813 (1973) (White,
105 Wallace v. Jaffree, 472 U.S. at 90-91 (White, J., dissenting).
106 482 U.S. 578 (1987).
107 Id. at 639 (Scalia, J., dissenting).
108 Id. at 640.
109 Lamb’s Chapel v. Center Moriches School District, 508 U.S. 384, 403 (1993) (Scalia, J.,
concurring in the judgment).
110 492 U.S. 573 (1989).
111 Id. at 655, 656 (Kennedy, J., concurring in part and dissenting in part).
112 Id. at 655.
accepted part of our political and cultural heritage.”113 Thus, he charged, any
interpretation of the establishment clause that invalidates “historical practices” and
“longstanding traditions” of government acknowledgment and accommodation of
religion can not be legitimate. The establishment clause, he said, ought to be
construed to mean only that “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.’”114
Justice Thomas, in a concurring opinion in Rosenberger v. Rector and Visitors
of the University of Virginia115 took sharp issue with the separationist view that the
establishment clause bars nondiscriminatory assistance to religion. Terming the
Court’s establishment clause jurisprudence to be “in hopeless disarray,” he said that
Virginia’s controversy over assessments in 1785 and Madison’s “Memorial and
Remonstrance” had nothing to do with a subsidy available to both religious and
nonreligious entities. Instead, he contended, it concerned only the support of
ministers and teachers of religion. Thus, he argued, that incident, as well as
Madison’s actions in bringing about a Bill of Rights, cannot be used to support the
“extreme view that the government must discriminate against religious adherents by
excluding them from more generally available financial subsidies.”116 Moreover, he
asserted, government in the early years of the Republic provided a number of
supports for religion — Congress hired a chaplain; religious properties were
exempted from property taxes; the Northwest Ordinance of 1787 provided land
grants for the benefit of schools, many of which were sectarian; and copyright
protections included religious authors and publications. He concluded:
Thus, history provides an answer for the constitutional question posed by this
case .... [There is] no evidence that the Framers intended to disable religious
entities from participating on neutral terms in evenhanded government programs.117
The evidence that does exist points in the opposite direction ....
Finally, Justice Thomas in the Court’s most recent decision questioned whether
the establishment clause ought to be deemed fully incorporated in the due process
clause of the Fourteenth Amendment and, as a consequence, fully applicable to the118
states. “In the context of the Establishment Clause,” he said, “it may well be that
state action should be evaluated on different terms than similar action by the Federal
Government.” “The federalism prerogatives of the States,” he suggested, ought to
be weighed in establishing the proper construction of the establishment clause.
113 Id. at 657.
114 Id. at 659, quoting Lynch v. Donnelly, supra, at 678.
115 515 U.S. 819, 852 (1995) (Thomas, J., concurring).
116 Id. at 857.
117 Id. at 863.
118 Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002) (Thomas, J., concurring).
(c) The Response. These criticisms of the Court’s broad interpretation of the
establishment clause, of course, have not gone without rejoinder. In further support
of the “wall of separation” construction, for instance, Justice Brennan cited the
historical facts that the Constitution broke with the common practice of the day in not
invoking the name of God, that Madison subsequently recanted his views regarding
the constitutionality of legislative chaplains and prayers, and that Presidents Jefferson
and Jackson refused on establishment clause grounds to proclaim national days of
thanksgiving or fasting.119 He also argued that the acts of the First Congress cannot
alone serve as an authoritative guide to the meaning of the establishment clause,
because the views of the states that ratified the Bill of Rights also have to be120
considered. More generally, he argued that “to be truly faithful to the Framers,
`our use of the history of their time must limit itself to broad purposes, not specific121
practices,’” lest their work be treated as “static and lifeless.”
In addition, Justices Blackmun, O’Connor, Brennan, Marshall, and Stevens all
have stressed that the people of the United States are now religiously diverse and thus
that even if “in the early days of the Republic [the religion clauses] were understood
to protect only the diversity within Christianity ..., today they are recognized as
guaranteeing religious liberty and equality to `the infidel, the atheist, or the adherent
of a non-Christian faith such as Islam or Judaism.’”122
In response to the argument that the establishment clause was intended to allow
nondiscriminatory government assistance to religion, Justice Stevens, Brennan, and
Marshall have contended that the religious establishments in the six states still
retaining them at the time of the Bill of Rights were not limited to a single church but
were multiple in nature, i.e., public aid was provided on a nondiscriminatory basis
to all Christian churches or to all Protestant churches. Thus, they asserted, the
prohibition of the establishment clause was understood by its authors to preclude not
just a single established church but multiple establishments as well, i.e., it was
intended to prohibit nondiscriminatory aid to all religions.123 That intent, they
claimed, was clearly shown by the evolution in the wording of the religion clauses
during the House and Senate debates on Madison’s proposals in the First Congress.
Following his appointment to the Court in 1990, Justice Souter, joined by
Justices O’Connor and Stevens, argued this view as well. In a concurring opinion in
Lee v. Weisman, supra, Justice Souter examined in detail the debates of the First
Congress on what became the religion clauses and concluded:
119 Marsh v. Chambers, 465 U.S. at 807 (Brennan, J., dissenting).
120 Id. at 815-16.
121 Id. at 816, quoting Abington School District v. Schempp, 374 U.S. at 241 (Brennan, J.,
122 See Wallace v. Jaffree, supra, at 52, and Allegheny County v. Greater Pittsburgh ACLU,
123 Allegheny County v. Greater Pittsburgh ACLU, supra, at 646-47 (Stevens, J., concurring
in part and dissenting in part). In so doing Justice Stevens generally followed the historical
analysis set forth in LEONARD LEVY, THE ESTABLISHMENT CLAUSE: RELIGION
AND THE FIRST AMENDMENT (1986).
The House rejected the Select Committee’s version, which arguably ensured only
that “no religion” enjoyed an official preference over others, and deliberately
chose instead a prohibition extending to laws establishing “religion” in general.
The sequence of the Senate’s treatment of this House proposal, and the House’s
response to the Senate, confirm that the Framers meant the Establishment
Clause’s prohibition to encompass nonpreferential aid to religion .... What is
remarkable is that, unlike the earliest House drafts or the final Senate proposal,
the prevailing language is not limited to laws respecting an establishment of “a
religion,” “a national religion,” “one religious sect,” or specific “articles of faith.
The Framers repeatedly considered and deliberately rejected such narrow
language and instead extended their prohibition to state support for “religion” in124
He concluded as well that the language of the establishment clause prohibits more
than just governmental coercion of religious belief or of support for religion. The
free exercise clause, he noted, also prohibits such coercion and, thus, “a literal
application of the coercion test would render the Establishment Clause a virtual125
Justice Blackmun in the opinion of the Court in Allegheny County v. ACLU,
Pittsburgh Chapter termed the charge of “hostility” to religion leveled against the
separationist construction of the establishment clause to be both “offensive” and
Justice Kennedy apparently has misperceived a respect for religious pluralism,
a respect commanded by the Constitution, as hostility or indifference to religion.
No misperception could be more antithetical to the values embodied in the
Establishment Clause .... A secular state ... is not the same as an atheistic or
antireligious state. A secular state establishes neither atheism nor religion as its
official creed .... It follows directly from the Constitution’s proscription against
government affiliation with religious beliefs or institutions that there is no126
orthodoxy on religious matters in the secular state.
Thus, he asserted, denying government the power to display a creche on public
property at Christmastime “does not represent a hostility or indifference to religion
but, instead, the respect for religious diversity that the Constitution requires.”127 “The
Constitution,” he said, “mandates that the government remain secular, rather than
affiliate itself with religious beliefs or institutions, precisely in order to avoid
discriminating among citizens on the basis of their religious faiths.”128
More recently, in an opinion joined by Justices Stevens, Ginsburg, and Breyer,
Justice Souter in a dissenting opinion in Rosenberger v. The Rector and Visitors of
the University of Virginia recapitulated the separationist understanding of the
124 Lee v. Weisman, 505 U.S. at 609, 613-15 (Souter, J., concurring).
125 Id. at 618-26.
126 County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. at 610-11.
127 Id. at 613.
128 Id. at 610.
historical underpinnings of the establishment clause and reiterated as well the
authority of Madison and Jefferson on its meaning. In response to Justice Thomas’
interpretation of Madison’s views, he said that “nowhere in the Remonstrance ... did
Madison advance the view that Virginia should be able to provide financial support
for religion as part of a generally available subsidy program” and noted as well that
the outgrowth of the Remonstrance “was not such a bill [but Jefferson’] Bill for
Establishing Religious Freedom, which ... proscribed the use of tax dollars for
religious purposes.”129 Of the contention that the acts of Congress showed that the
establishment clause allows nondiscriminatory aid, Justice Souter rejoined that
“individual acts of Congress, especially when they are few and far between, scarcely
serve as an authoritative guide to the meaning of the Religion Clauses ... [and are] no
more dispositive than the Alien and Sedition Acts in interpreting the First
In the Court’s most recent decision, Justice Souter, joined by Justices Stevens,
Ginsburg, and Breyer, asserted that the no-aid construction of the establishment
clause first articulated in Everson serves three fundamental objectives.131 First, he
said, it protects freedom of conscience by ensuring that, in Jefferson’s words, no one
“shall be compelled to ... support any religious worship, place, or ministry
whatsoever.” Second, he said, it protects religion from the “corruption” of its
mission that can come in the wake of government regulation and its own eagerness
for more public funding. Third, he said, it protects society from the threat of conflict
along religious lines as sect competes against sect for limited public funds.
(d) Modifications of the Lemon Test. As noted above, much of the debate
about the meaning of the establishment clause has focused on the utility and
adequacy of the tripartite Lemon test. Nonetheless, that test continues to be the one
most often employed by the Court. But the debate has caused the Court to make
significant modifications in the tripartite test, and in a recent church-state decision
the Justices argued vigorously over whether neutrality ought to be the essential
meaning of the test. The following subsections detail the modifications in the test
and the recent contentions:
(1) Endorsement. Justice O’Connor, appointed to the Court in 1981,
authored a concurring opinion in Lynch v. Donnelly to suggest not a rejection but a
“clarification” of the Lemon test.132 The essential meaning of the establishment
clause, she asserted, is that it “prohibits government from making adherence to a
religion relevant in any way to a person’s standing in the political community.”
Thus, she said, the clause is violated when government becomes excessively
entangled with religious institutions, because that may threaten the independence of
such institutions, give favored institutions access to governmental powers or benefits
not fully available to nonadherents of the favored religion, and create “political
129 Rosenberger v. Rector and Board of Visitors of the University of Virginia, 515 U.S. 819,
130 Id. at 872, n. 2.
131 Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002) (Souter, J., dissenting).
132 Lynch v. Donnelly, 465 U.S. at 687 (O’Connor, J., concurring).
constituencies defined along religious lines.” More importantly, she said, the
establishment clause is violated by “government endorsement or disapproval of
Endorsement sends a message to nonadherents that they are outsiders, not full
members of the political community, and an accompanying message to adherents
that they are insiders, favored members of the political community. Disapproval133
sends the opposite message.
Thus, the secular purpose prong of the tripartite test, she averred, should be construed
to ask whether “government’s actual purpose is to endorse or disapprove of
religion.”134 The primary effect prong, in turn, should be construed to ask “whether,
irrespective of purpose, the practice under review in fact conveys a message of
endorsement or disapproval.” The entanglement prong, she asserted, should be
limited to institutional entanglement, not political entanglement.
In County of Allegheny v. ACLU, Pittsburgh Chapter, supra, Justice Kennedy
termed Justice O’Connor’s endorsement test an “unwelcome addition to our tangled
Establishment Clause jurisprudence” and said it was “flawed in its fundamentals and
unworkable in practice.” The test, he charged, would invalidate “scores of traditional
practices recognizing the place religion holds in our culture,” would “trivialize
constitutional adjudication,” and would require the Court to “sit as a national135
theology board” and decide “what every religious symbol means.” Justice Scalia
in Capitol Square Review and Advisory Board v. Pinette, supra, said that in the
context of the display of religious symbols the endorsement principle requires
officials to “guess” when they might be perceived to be advocating a religious
viewpoint and forces them “to weigh a host of imponderables.” The endorsement
test, he said, provides “no standard whatsoever” for determining when the
establishment clause is violated and creates a “minefield” for public officials.
Nonetheless, the Court has employed this revision of the Lemon test in several
(2) Modification of the primary effect and entanglement criteria. The
Court still requires, apparently without dissent, that government programs and
actions benefiting religion serve a secular purpose. But in the context of public aid
programs benefiting sectarian institutions, it has significantly loosened the strictures
133 Id. at 688.
134 Id. at 690.
135 County of Allegheny v. ACLU, Pittsburgh Chapter, 492 U.S. at 3134 (Kennedy, J.,
concurring in part and dissenting in part).
136 See Wallace v. Jaffree, 472 U.S. 38 (1985); Grand Rapids School District v. Ball, 473
U.S. 373 (1985); County of Allegheny v. American Civil Liberties Union Greater Pittsburgh
Chapter, 492 U.S. 573 (1989); Capitol Square Review and Advisory Board v. Pinette, 515
U.S. 753 (1995); Mitchell v. Helms, 530 U.S. 793 (2002); Santa Fe Independent School
District v. Doe, 530 U.S. 290 (2000); and Zelman v. Simmons-Harris, 122 S.Ct. 2460
of both the primary effect and excessive entanglement prongs of the tripartite Lemon
With respect to direct aid, the Court formerly construed the primary effect prong
to mean that such aid must be limited to secular use. Thus, a direct aid program
could founder on this aspect of the Lemon test if the aid was not limited to secular
use either by its nature or by statutory or regulatory constraint. In addition, a direct
aid program could be held unconstitutional if it flowed to institutions that the Court
deemed to be pervasively sectarian, i.e., entities whose religious and secular
functions were so “inextricably intertwined” that the aid could not be limited just to
secular use.137 As the Court summarized in one case:
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 funds138
a specifically religious activity in an otherwise substantially secular setting.
Moreover, even if an aid program was limited to secular use, it could still
founder on the excessive entanglement test if it flowed to pervasively sectarian
institutions. In such institutions, the Court said, the government could not simply
assume that the limitation to secular use would be honored. Instead, it had to engage
in “a comprehensive, discriminating, and continuing ... surveillance” to ensure that
the limitation was observed. But, the Court held, “these prophylactic contacts will139
involve excessive and enduring entanglement between state and church”; and as
a consequence, it would hold the aid program to be unconstitutional.
In its recent decisions the Court has now modified both the primary effect and140
excessive entanglement prongs of the tripartite test. In addition to the secular
purpose requirement, the Court now construes the criteria of whether public aid has
a primary effect of advancing religion to be
(a) whether the aid results in government indoctrination, (b) whether the aid
program defines its recipients by reference to religion, and (c) whether the aid141
creates an excessive entanglement between government and religion.
Most critically, the Court has abandoned the presumption that some religious entities
are so pervasively sectarian that most forms of direct public aid to them are
unconstitutional. It now presumes, absent proof to the contrary, that direct aid to142
such entities will be used for the secular purposes intended. As a consequence, it
has also modified the assumption that government must engage in an excessively
137 Wolman v. Walter, 433 U.S. 229 (1977) and Bowen v. Kendrick, 487 U.S. 589 (1988).
138 Hunt v. McNair, 413 U.S. 734, 743 (1973).
139 Lemon v. Kurtzman, 403 U.S. 602, 619 (1971).
140 Agostini v. Felton, 521 U.S. 203 (1997).
141 Mitchell v. Helms, 530 U.S. 793, 845 (2000) (O’Connor, J., concurring).
142 Mitchell v. Helms, supra. Four Justices (Chief Justice Rehnquist and Justices Scalia,
Kennedy, and Thomas) would go even farther and allow public aid to be used for religious
purposes by the recipient institutions; but that is not yet the majority view.
entangling policing of such institutions’ use of direct aid. The Court still deems
some monitoring to be necessary, but it no longer views such monitoring to be
constitutionally fatal.143 Reflecting the diminished rigor of the entanglement test, the
Court, in the context of direct public aid to sectarian entities, has made the
entanglement test part of the primary effect test.144
In the context of voucher or other aid programs indirectly benefiting sectarian
schools, the Court has never used the full Lemon test. It has required such programs
to serve a secular purpose and not to have a primary effect of advancing religion. But
the critical inquiries on the primary effect test have been whether the vouchers or
other aid are distributed to the initial beneficiaries on a religiously neutral basis and
whether the initial beneficiaries have a genuinely independent choice about whether
to use the assistance at secular or religious schools.145 In its most recent decision the
Court continued to ask, as it also does for direct aid, whether there was any religious
bias in the initial distribution of the education vouchers; and it also examined
whether the parents receiving the vouchers had a “true private choice” between
secular and religious options in using the aid.146 But it significantly broadened the
choices deemed to be relevant. In evaluating whether the parents had a true private
choice, the Court held, all educational options open to them needed to be considered,
not just the private secular or religious schools where the vouchers themselves could
be used. Thus, it said, the range of choices available in the program before it
included not only the private schools but also enrollment in public schools, magnet
schools, and community schools and the option of receiving special tutoring
assistance. In short, the Court altered the “true private choice” criterion of the
primary effect test in such a way that most voucher programs ought to be able to
(3) Neutrality as the governing principle. The concept of neutrality has
been a continuing component of the Court’s establishment clause jurisprudence. In
its first establishment clause decision of the modern era, the Court used a principle
143 Agostini v. Felton, supra, and Mitchell v. Helms, supra.
144 In Agostini v. Felton, supra, at 232-33, the Court stated:
...[T]he factors we use to assess whether an entanglement is “excessive” are similar to
the factors we use to examine “effect.” That is, to assess entanglement, we have
looked to “the character and purposes of the institutions that are benefited, the nature
of the aid that the State provides, and the resulting relationship between the
government and religious authority .... Similarly, we have assessed a law’s “effect”
by examining the character of the institutions benefited (e.g., whether the religious
institutions were “predominantly religious”) ... and the nature of the aid that the State
provided (e.g., whether it was neutral and nonideological) .... Thus, 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.
145 Committee for Public Education v. Nyquist, 413 U.S. 756 (1973); Mueller v. Allen, 463
U.S. 388 (1983); Witters v. Washington Department of Social Services, 474 U.S. 481
(1986); Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993).
146 Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002).
of neutrality to uphold a public subsidy of the costs of transporting children to and
from school, including parochial school, stating
[t]he First Amendment ... requires the state to be neutral in its relations with
groups of religious believers and non-believers; it does not require the state to be147
At times the test has been described by the Court as one of “benevolent neutrality”148
and at other times as one of “strict neutrality.”149 But the concept has often found
expression in the second prong of the Lemon test, which requires government action
affecting religion to have a primary effect that neither advances nor inhibits religion.
Thus, it has sometimes been used by the Court to uphold programs in which public
aid is made available on a religiously neutral basis, i.e., without regard to whether the
beneficiary is religious or nonreligious:
... [G]overnment programs that neutrally provide benefits to a broad class of
citizens defined without reference to religion are not readily subject to an
Establishment Clause challenge just because sectarian institutions may also150
receive an attenuated benefit.”
As noted in the preceding section, the concept of neutrality is an element of the
primary effect test for both direct and indirect aid programs.
In one of the Court’s recent decisions, however, a plurality of four Justices
argued that the Lemon test ought to be conceived almost entirely in neutrality terms
for programs directly aiding sectarian institutions. Justice Thomas, in a plurality
opinion in Mitchell v. Helms, supra, joined by Chief Justice Rehnquist and Justices
Scalia and Kennedy, argued that so long as an aid program is religiously neutral in
the manner in which it provides its benefits and the aid itself is secular in nature, the
147 Everson v. Board of Education, 330 U.S. 1, 18 (1947).
148 In upholding the tax exemption accorded property owned by religious and other nonprofit
organizations in Walz v. Tax Commission of New York, 397 U.S. 664, 669 (1970) the Court
The general principle deducible from the First Amendment and all that has been
said by this Court is this: that we will not tolerate either governmentally
established religion or governmental interference with religion. Short of those
expressly proscribed governmental acts there is room for play in the joints
productive of a benevolent neutrality which will permit religious exercise to exist
without sponsorship and without interference.
149 In holding state sponsorship of Bible reading and unison prayer in the public schools
unconstitutional in Abington School District v. Schempp, 374 U.S. 203, 225 (1963), the
They are religious exercises, required by the States in violation of the command
of the First Amendment that the Government maintain strict neutrality, neither
aiding nor opposing religion.
150 Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993).
program passes muster under the establishment clause even if the aid is subsequently
diverted by the recipient to religious use:
In distinguishing between indoctrination that is attributable to the State and
indoctrination that is not, we have consistently turned to the principle of
neutrality, upholding aid that is offered to a broad range of groups or persons
without regard to their religion. If the religious, irreligious, and areligious are
all alike eligible for governmental aid, no one would conclude that any
indoctrination that any particular recipient conducts has been done at the behest151
of the government.
But the other five Justices criticized this elevation of the neutrality test. Justice
O’Connor, joined by Justice Breyer, termed this use of neutrality “unprecedented,”
“expansive,” “in tension with our precedents,” and “unnecessary.” Neutrality, she
said, is “important” and “relevant” in determining whether an aid program advances
religion, but it is not alone “sufficient.” “[T]he plurality opinion,” she said,
“foreshadows the approval of direct monetary subsidies to religious organizations,
even when they use the money to advance their religious objectives.”
Justice Souter, in turn, joined by Justices Stevens and Ginsburg, argued that the
plurality’s use of neutrality had “manifold errors,” represented a “sharp break with
the Framers’ consistent understanding of establishment and this Court’s consistent
interpretive course,” and would “be the end of the principle of no aid to the
[sectarian] schools’ religious mission.” The plurality ignored the fact that neutrality
had been used in several different senses by the Court in the past, he said. It had been
used to describe (1) “the state of balance between government as ally and as
adversary to religion” required by the two religion clauses, (2) the nonreligious and
secular nature of the aid provided, and (3) evenhandedness in making aid available
to the religious and nonreligious alike. Using evenhandedness alone in determining
an aid program’s constitutionality, he said, disregarded the Court’s precedents and
would mean that “religious schools could be blessed with government funding as
massive as expenditures made for the benefit of their public school counterparts, and
religious missions would thrive on public money.”
Thus, for now at least, the concept of neutrality remains an essential element of
the Court’s determination of whether an establishment clause violation has occurred,
but it is not the only element.
151 Mitchell v. Helms, supra, at 10 (Thomas, J.). This contention is not wholly new, but in
Mitchell it was expressed with particular force. Then-Justice Rehnquist contended in
Wallace v. Jaffree, 472 U.S. 38, 106 (1985) (Rehnquist, J., dissenting) that the original
meaning of the establishment clause “forbade establishment of a national church, and
forbade preference among religious sects or denominations .... [I]t did not require
government neutrality between religion and irreligion nor did it prohibit the Federal
Government from providing nondiscriminatory aid to religion.” In this view religious
organizations should be eligible to participate in public aid programs without giving up their
(e) Other establishment clause tests – coercion and tradition. As
noted, Lemon is no longer the sole test the Court uses.152 The Court has also, on one
occasion, proffered and used coercion as the touchstone of an establishment clause
violation. In Lee v. Weisman, supra, Justice Kennedy opined for the Court that “at
a minimum, the Constitution guarantees that government may not coerce anyone to
support or participate in religion or its exercise, or otherwise act in a way which153
`establishes a [state] religion, or religious faith, or tends to do so.” In that case the
Court held that a high school’s inclusion of an invocation and benediction by a rabbi
in its commencement ceremony had the unconstitutional effect of coercing some
students into participating in a religious activity.
Justice O’Connor has criticized coercion as an exclusive test of an establishment
clause violation as failing “to take account of the numerous more subtle ways that
government can show favoritism to particular beliefs or convey a message of
disapproval to others” and thus as failing to “adequately protect the religious liberty
or respect the religious diversity of the members of our pluralistic political
community.” Moreover, she has said, to make coercion the touchstone of an
establishment clause violation “would make the Free Exercise Clause a154
redundancy.” Justice Souter has made a similar criticism of the coercion test,
contending that it would make the establishment clause a “virtual nullity.”
Nonetheless, the Court has used the coercion test as a rule of decision in at least155
two school prayer cases.
Various Justices have also proffered the historicity and ubiquity of a given
practice as a test of its constitutionality. In Marsh v. Chambers,156 for instance, Chief
Justice Burger stated for the Court that the practice of a legislature hiring a chaplain
was constitutionally permissible in part because the practice was “deeply embedded
in the history and tradition of this country” and had become “part of the fabric of our
society.” Justice Kennedy, joined by Chief Justice Rehnquist and Justices White and
Scalia, contended in Allegheny County v. Greater Pittsburgh Chapter of the
American Civil Liberties Union157 that the display of a creche by itself in the county
courthouse ought to be permitted because “[g]overnment policies of accommodation,
acknowledgment, and support for religion are an accepted part of our political and
cultural heritage.” “The meaning of the [Establishment] Clause,” he said, “is to be
determined by reference to historical practices and understandings.” In Lee v.
152 In several decisions in the past decade the Court has eschewed use of the Lemon test
entirely. See Lee v. Weisman, 505 U.S. 577 (1992); Zobrest v. Catalina Foothills School
District, 509 U.S. 1 (1993); Board of Education of the Kiryas Joel Village School District
v. Grumet, 512 U.S. 687 (1994); and Rosenberger v. The Rector and Visitors of the
University of Virginia, 515 U.S. 819 (1995).
153 Quoting Lynch v. Donnelly, supra, at 678.
154 Id. at 3117 (O’Connor, J., concurring in part and concurring in the judgment).
155 Lee v. Weisman, supra, and Santa Fe Independent School District v. Doe, supra. In the
latter decision coercion was one of several bases for the Court’s decision.
156 463 U.S. 783, 786, 792 (1983).
157 492 U.S. 573, 657, 670 (1989) (Kennedy, J., dissenting).
Weisman158 Justice Scalia, joined by Chief Justice Rehnquist and Justices White and
Thomas, argued that commencement prayer by a clergyman ought to allowed because
it was “a tradition that is as old as public school graduation ceremonies themselves
and ... a component of an even more longstanding American tradition of nonsectarian
prayer to God at public celebrations generally.”
As noted, the Court relied in part on this test in upholding the constitutionality
of a legislative chaplaincy in Marsh v. Chambers, supra.
(f) Conclusion. In sum, then, the period since 1980 has witnessed profound
discontent by a number of Justices with the historical justifications previously used
by the Court for its interpretation of the establishment clause, the “wall of separation”
metaphor, and the tripartite Lemon test. All of the Justices continue to agree that the
meaning and scope of the clause are informed by history, but they sharply disagree
on what history is most relevant.
The critique of the separationist understanding of the establishment clause has
had a substantial effect, albeit not one as sweeping as the alteration of the
interpretation of the free exercise clause. Since 1980 the Court has rendered a
number of decisions upholding government actions protecting or benefiting religion;
the metaphor “wall of separation” has not been used as a guiding principle in any
majority opinion by the Court159; the Lemon test has been modified, supplemented,
and sometimes replaced by other tests; the Court has overturned several of its prior
establishment clause decisions involving direct aid to sectarian institutions; and it has160
made it considerably easier for voucher programs to pass constitutional muster.
But the debate about the meaning of the establishment clause continues to be
intense and can be expected to persist for years to come. The Court’s establishment
clause jurisprudence has shifted to allow government more discretion to take actions
protecting or benefiting religion; but its decisions on particular issues remain, to a
great extent, unpredictable.
158 505 U.S. 577, 631, 632 (1992).
159 The phrase was last used as a guiding principle in a majority opinion in Committee for
Public Education v. Nyquist, 413 U.S. 790 (1973). It was used most recently by Justice
Souter in dissent in Mitchell v. Helms, supra, in 2000.
160 In Agostini v. Felton, 521 U.S. 203 (1977)(1997), the Court upheld as constitutional the
provision of remedial educational services by public school teachers to private
schoolchildren on the premises of sectarian schools. In the process the Court overturned
Aguilar v. Felton, 473 U.S. 402 (1985) and parts of School District of the City of Grand
Rapids v. Ball, 473 U.S. 373 (1985) and Meek v. Pittenger, 421 U.S. 349 (1975), and
Wolman v. Walter, 433 U.S. 229 (1977). In Mitchell v. Helms, 530 U.S. 793 (2000), the
Court upheld as constitutional a program providing instructional materials and equipment
to both public and sectarian schools. In the process it overturned parts of Meek v. Pittenger,
supra, and Wolman v. Walter, 433 U.S. 229 (1977). In Zelman v. Simmons-Harris, 122
S.Ct. 2460 (2002) the Court upheld as constitutional a school voucher program,
notwithstanding that more than 80 percent of the participating private schools were sectarian
in nature. The decision did not overturn Committee for Public Education v. Nyquist, 413
U.S. 790 (1973), but it did cabin its scope.
The tumult on the Court over the meaning of the religion clauses has meant that
it has faced few easy cases in this area since 1980. As noted earlier, nearly 30
percent of its decisions during this time have been by a 5-4 margin, and concurring
and dissenting opinions have abounded (see Appendix). The Court’s narrowing of
the scope of the free exercise clause has been recounted above, and that discussion
of the fourteen free exercise decisions rendered by the Court since 1980 (with the
exception of the tax cases) will not be repeated here. With respect to the
establishment clause, the Court in its decisions since 1980 has:
(a) reaffirmed and extended its past decisions prohibiting government
promotion or sponsorship of religious exercises in the public schools, established
the constitutional parameters for silent meditation, and held equal access policies
for student religious groups at the college and secondary school levels to be
(b) expanded the permissible scope of religious speech in the public square,
whether spoken or symbolic;
(c) reaffirmed some of its precedents concerning direct public aid to
sectarian schools and religious social welfare organizations but overturned a line
of cases that had prohibited public school teachers from providing educational
services to sectarian schoolchildren on the premises of their sectarian schools as
well as one barring the provision of instructional materials and equipment to such
(d) broken new ground with respect to indirect assistance to religious
enterprises and activities and loosened the constitutional strictures to the point
that most educational voucher programs can pass constitutional muster;
(e) set limits on the extent to which government can provide special
benefits and protections for religious practices and organizations;
(f) accorded government substantial discretion to impose general taxes on
religious entities and individuals;
(g) generally found no constitutional problem in the application of
governmental regulations to religious organizations; and
(h) refused to broaden the doctrine of standing to permit wider challenges
to the provision of public benefits to religious organizations.
This section summarizes the Court’s decisions in each of these areas and examines
their effect on its church-state jurisprudence.
(a) Religious Activities in the Public Schools. Perhaps the most
controversial area of the Court’s church-state jurisprudence in the last half century
has been its decisions concerning religion in the public schools. Its rulings in this
area have precipitated hundreds of proposals for constitutional amendments,
recurrent Congressional debates, and passionate public disputes. Indeed, few issues
in American public life have been as persistent or as contentious. But in seven
decisions and two summary affirmances since 1980 the Court has made clear the
continuing vitality of its precedents in this area. Yet it has also broken new ground
by making explicit a constitutional distinction between the sponsorship of religious
activities in the schools by government and the conduct of such activities by students
at their own initiative.
In five decisions prior to the beginning of the decade the Court had construed
the establishment clause to prohibit government from sponsoring or promoting
religious activities or doctrines in the public schools. Struck down by the Court had
been state sponsorship of regular devotional activities such as prayer and Bible
reading,161 privately sponsored religious instruction on public school premises during
the school day,162 and state prohibitions on the teaching of evolution.163 “A State
cannot consistently with the First and Fourteenth Amendments,” the Court had said,
“utilize its public school system to aid any or all religious faiths or sects in the
dissemination of their doctrines and ideals.”164
On the other hand, the Court had, prior to 1980, found the establishment clause
not to be violated by a released time program that permitted public school children
to repair to nearby religious centers during the school day for purposes of receiving165
religious instruction from private teachers. It had in dicta repeatedly affirmed the
constitutionality of the public schools teaching about religion. And it had in two
cases held the free speech and free exercise clauses to mandate exemptions for
religious reasons from the otherwise compulsory practices of saluting the flag and
attending school until the age of sixteen.166 In the public schools, the Court had said,
“[t]he First Amendment mandates government neutrality between religion and
religion, and between religion and nonreligion.”167
All of these precedents have remained intact since 1980. The Court has
reaffirmed its school prayer and curriculum decisions and extended them to school-
sponsored prayer at commencement ceremonies and extracurricular activities such
as football games, displays of the Ten Commandments, and the teaching of
creationism. But it has also found broad constitutional protection for private
religious speech in decisions concerning moments of silence and equal access
policies for student religious groups at the secondary school and college levels and
for student religious publications in a university setting.
161 Engel v. Vitale, 370 U.S. 421 (1962); Abington School District v. Schempp, 374 U.S. 203
(1963); and Chamberlin v. Dade County Board of Public Instruction, 377 U.S. 402 (1964).
162 McCollum v. Board of Education, 333 U.S. 203 (1948).
163 Epperson v. Arkansas, 393 U.S. 97 (1968).
164 McCollum v. Board of Education, 333 U.S. at 211.
165 Zorach v. Clauson, 343 U.S. 306 (1952).
166 See West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), and Wisconsin
v. Yoder, 406 U.S. 205 (1972), respectively.
167 Epperson v. Arkansas, 393 U.S. at 103-04.
(1) Government sponsorship of religion. In cases involving school-
sponsored prayer since 1980, the Court summarily affirmed two lower court
decisions which struck down state laws and practices that permitted teachers to open
the school day with prayers composed by themselves or by the state legislature.168169
In a third decision the Court in Lee v. Weisman held unconstitutional, 5-4, a local
school district’s policy of permitting clergy to offer invocations and benedictions at
graduation ceremonies. A fourth decision, Santa Fe Independent School District v.
Doe,170 struck down a school district policy permitting students to vote on whether
to have prayers at football games and to select a student to deliver those prayers.
The two summary affirmances, of course, involved no written opinions. With
respect to the issue of whether a public high school can invite a clergyman to deliver
an invocation and benediction at a graduation ceremony, Justice Kennedy, writing
for the Court in Lee v. Weisman, eschewed use of the Lemon test and employed
instead the principle that “at a minimum, the Constitution guarantees that
government may not coerce anyone to support or participate in religion or its exercise171
....” “The injury caused by the government’s action” in this instance, he said, “is
that the State, in a school setting, in effect required participation in a religious172
exercise.” But “[t]he First Amendment’s Religion Clauses,” he asserted, “mean
that religious beliefs and religious expression are too precious to be either proscribed173
or prescribed by the State.” Rejecting the notion that government could sponsor
the rabbi’s prayer as a form of “civic” religion in the schools, he said “[t]he
Constitution forbids the State to exact religious conformity from a student as the
price of attending her own high school graduation.”174
Santa Fe involved a policy that permitted high school students to vote on
whether to have a student volunteer deliver an invocation or message before home
168 Karen B. v. Treen, 455 U.S. 913 (1982), aff’g mem., 653 F.2d 897 (5th Cir. 1981)
(affirming a lower federal court decision holding unconstitutional a Louisiana statute and
a local school board’s implementing regulation which permitted teachers to ask for student
volunteers to offer a prayer at the beginning of each school day and, if no student
volunteered, to offer a prayer themselves) and Wallace v. Jaffree, 466 U.S. 924 (1984), aff’gth
mem., 705 F.2d 1526 (11 Cir. 1983) (affirming that part of a lower federal court decision
holding unconstitutional an Alabama statute which permitted teachers to pray, to lead
willing students in prayer, or to lead willing students in the following prayer set forth in the
Almighty God, You alone are our God. We acknowledge You as the Creator and
Supreme Judge of the World. May Your justice, Your truth, and Your peace
abound this day in the hearts of our government, in the sanctity of our homes and
in the classrooms of our schools. In the name of our Lord. Amen.
169 505 U.S. 577 (1992).
170 530 U.S. 290 (2000).
171 Lee v. Weisman, supra, at
172 Id. at .
173 Id. at .
174 Id. at .
football games over the public-address system. The Court held, 6-3, that the “policy
is invalid ... 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.” The policy, Justice Stevens
wrote for the majority, inevitably discriminated against minority views and
perpetuated a majoritarian viewpoint. It coerced some students into participating in
a religious exercise at the football games, he said, and encouraged divisiveness along
religious lines. Moreover, he stated for the Court, the policy in this instance failed
to divorce the school from the religious content of the invocation. Not only did “the
policy, by its terms, invite and encourage religious messages,” but the invocation was
to be broadcast over the school’s public address systems to “a large audience
assembled as part of a regularly scheduled school-sponsored function conducted on
school property.” In this context, the Court said, an objective observer would
“unquestionably perceive the inevitable pregame prayer as stamped with her school’s
seal of approval.” Finally, Justice Stevens asserted, given the long history of pre-
game prayer in the school district and the evolution of the policy, it was clear that
“the District intended to preserve the practice of prayer before football games.”
In two additional cases the Court held unconstitutional state statutes mandating
the display of the Ten Commandments on the walls of the public schools and the
teaching of creationism. In Stone v. Graham175 the Court, without briefing or oral
argument, struck down, 5-4, a Kentucky statute which required that a copy of the Ten
Commandments, purchased with private funds, be posted on the wall of each public
classroom in the state. Notwithstanding contrary declarations by the state legislature,
the Court found the Ten Commandments to be “undeniably a sacred text” and the
“pre-eminent purpose” of the posting requirement to be “plainly religious in nature.”
As a consequence, it held the posting requirement to be in violation of the first prong
of the Lemon test and a violation of the establishment clause.
In Edwards v. Aguillard176 the Court reaffirmed and extended its previous ruling
in Epperson v. Arkansas177 which had held unconstitutional a state’s ban on the
teaching of evolution in the public schools. Aguillard involved a Louisiana statute
that, instead of barring the teaching of evolution, required teachers to give “balanced
treatment” to evolution and creationism, i.e., to teach both doctrines. Like the statute
involved in Epperson, the Court held this statute to violate the purpose prong of the
tripartite test, 7-2. In enacting the statute, Justice Brennan wrote for the Court, “the
pre-eminent purpose of the Louisiana legislature was clearly to advance the religious
viewpoint that a supernatural being created mankind.” Noting the “historic and
contemporaneous antagonisms between the teachings of certain religious
denominations and the teaching of evolution,” he concluded that it was not
“happenstance that the legislature required the teaching of a theory which coincided
with [a] religious view.”178 The purpose of the Act, the Court found, was “to endorse
a particular religious doctrine”; as a consequence, it held that the Act violated the
175 449 U.S. 39 (1980) (per curiam).
176 482 U.S. 578 (1987).
177 393 U.S. 97 (1968).
178 Id. at 591-92.
establishment clause. Thus, unless creationism can gain acceptance in the scientific
community as a scientific theory, Aguillard appears to close the constitutional door
on further efforts to excise or rebut the teaching of evolution in the public schools.
(2) Private religious expression. In four other decisions since 1980
involving religion in the public schools, however, the Court broke new constitutional
ground. In each case it affirmed the constitutionality of private religious expression,
and in one case in the college context even upheld the public subsidy of religious
In Wallace v. Jaffree179 the Court for the first time addressed the
constitutionality of provisions mandating moments of silence at the beginning of each180
school day. Again relying on the first prong of the Lemon test, the Court in
Wallace struck down an Alabama statute mandating a daily moment of silence in the
public schools for purposes of “meditation or voluntary prayer” on the grounds it had
been adopted with an illegitimate legislative purpose. By a 6-3 margin the Court
found that the Alabama legislature had enacted the statute in question “for the sole
purpose of expressing the State’s endorsement of prayer activities for one minute at
the beginning of each school day.” Another statute previously adopted by Alabama,
Justice Stevens noted for the Court, already provided for a moment of silence at the
beginning of each school day for purposes of meditation. The legislative history of
the addition of the phrase “or voluntary prayer” in the later statute, the Court
concluded, clearly showed that the statute was intended to serve no secular purpose
and was of a “wholly religious character.”181 Justice Stevens stressed, however, that
the Court was not holding all moment of silence provisions to be unconstitutional:
The legislative intent to return prayer to the public schools is, of course, quite
different from merely protecting every student’s right to engage in voluntary
prayer during an appropriate moment of silence during the schoolday. The 1978182
statute already protected that right ....
Thus, it appears likely that statutes or regulations mandating a moment of silence can
pass constitutional muster, provided that they are not adopted for the purpose of
promoting prayer and are not implemented to give governmental encouragement or183
preference to prayer.
179 472 U.S. 38 (1985).
180 Justice Brennan had previously opined that a moment of silence at the beginning of the
school day would be constitutional. See Abington School District v. Schempp, 374 U.S. at
181 Wallace v. Jaffree, 472 U.S. at 58.
182 472 U.S. at 59. See also the concurring opinions of Justices Powell and O’Connor, id.,
at 62 and 67, respectively.
183 A subsequent attempt to obtain clarification from the Court on what kind of moment of
silence statute might pass constitutional muster foundered when the Court found that the
parties who brought the case to it had no standing to do so. See May v. Cooperman, 572
F.Supp. 1561 (D. N.J. 1983), aff’d, 780 F.2d 240 (3d Cir. 1985), appeal dismissed for want
of jurisdiction, 484 U.S. 72 (1987).
In two other decisions the Court construed the First Amendment to require or,
at least, to permit public universities and public secondary schools to allow student-
initiated religious groups to use school facilities during the school day. In Widmar
v. Vincent184 the Court held, 8-1, that the freedom of speech clause of the First
Amendment bars a public university which permits some student groups to meet in
its facilities from denying such use to student groups wanting to engage in religious
worship and discussion. Once a university opens its facilities for use by student
organizations, Justice Powell wrote for the Court, it may not “enforce a content-based
exclusion of religious speech” unless there is a compelling public purpose to be
served. The University argued that conformance with the establishment clause and
with Missouri’s history of strict church-state separation constituted sufficient
justification for its ban. But the Court disagreed. Permitting student groups to use
campus facilities for religious purposes, it said, would neither place the imprimatur
of University sponsorship on any sectarian belief or practice nor single out religious
groups for special benefits. Thus, the Court held, the University’s “exclusionary
policy violates the fundamental principle that a state regulation of speech should be
Before and after Widmar the same constitutional question arose in the context
of student-initiated religious groups in public secondary schools. All but one of the
state and lower federal courts that examined that question held permission for such
groups to meet on the premises of public secondary schools to violate the186
establishment clause. Congress, however, found the courts’ reasoning
unpersuasive and in 1984, after a vigorous debate, created a statutory right at the
public secondary school level that replicated the constitutional right at universities
articulated in Widmar. The Equal Access Act187 bars public secondary schools that
receive federal assistance and that have a limited open forum from discriminating
against any student group wishing to meet on the basis of the religious, political,
philosophical, or other content of the speech at such meetings. The Act defines
“limited open forum” to mean the “opportunity for one or more noncurriculum
related student groups to meet on school premises during noninstructional time.”
In Board of Education of Westside Community Schools v. Mergens188 the Court
held the Equal Access Act to be constitutional, 8-1. The Court construed the Act
184 454 U.S. 263 (1981).
185 Id. at 277.
186 See Brandon v. Board of Education of the Guilderland Central School District, 635 F.2d
Lubbock Independent School District, 659 F.2d 1038 (5 Cir. 1982), cert. den., 459 U.S.th
Johnson v. Huntington Beach Union High School District, 137 Cal.Rptr. 43, 68 Cal.App.3d
1 (Ct. App.), cert. den., 434 U.S. 877 (1977); and Trietley v. Board of Education of the City
of Buffalo, 65 A.D.2d 1, 409 N.Y.S.2d 912 (App. Div. 1978). Contra Bender v.
Williamsport Area School District, 563 F.Supp. 697 (M.D. Pa. 1983), reversed, 741 F.2d
187 20 U.S.C. 4071-74 (1988).
188 496 U.S. 226 (1990).
broadly as a remedy against “perceived widespread discrimination against religious
speech in public schools” and said it applied any time a school permitted even one
noncurriculum related student group to meet. The Court further found the Act not
to promote religion or to place the imprimatur of government on the religious speech
that would occur at such meetings. Justice O’Connor, joined by three other
Justices,189 stressed that
[t]here 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 or190
support student speech that it merely permits on a nondiscriminatory basis.
Justices Brennan and Marshall agreed with that reasoning but said that Westside
needed to take additional steps to make clear that its recognition of a student Bible
club did not constitute an endorsement of their views. However, Justices Scalia and
Kennedy emphasized the absence of any coercive effect in permitting such meetings
to occur. Despite these differing approaches to the issue, the decision clearly ratified
the extension of the reasoning of Widmar to the public secondary school setting.
Finally, in Rosenberger v. The Rector and Visitors of the University of191
Virginia the Court held, 5-4, that when a public university creates a forum for the
expression of student opinions, it cannot exclude student religious opinions. In this
instance the University of Virginia fostered the creation of publications by student
organizations by paying their printing bills out of the student activities fund (SAF).
However, it excluded religious publications, among others, from the subsidy, arguing
that the establishment clause prohibits the funding of such a religious activity. But
the Court rejected the argument. It held the object of the SAF to be “to open a forum
for speech” and the University’s exclusion of the religious publication, as a
consequence, to constitute viewpoint discrimination violative of the free speech
clause of the First Amendment. The SAF was not a tax used to support a church, the
Court said, but essentially amounted to a religiously neutral fund to promote private
student speech. The Court said the University’s policy of exclusion itself threatened
to violate the establishment clause because the University would then have to
scrutinize every publication and determine when its religious content was too great.
Justice O’Connor, the decisive vote in the case, stressed in a concurring opinion the
factors that the publications were genuinely independent of the University, that the
payments were made not directly to the sponsoring student organizations but to the
printer, that numerous publications were subsidized, and that students could, at least
hypothetically, seek a refund for any portion of their fees used for speech with which
they disagreed. These factors convinced her, she said, that “providing ... assistance
in this case would not carry the danger of impermissible use of public funds to
endorse Wide Awake’s religious message.”
In short, since 1980 the Court has reaffirmed that the establishment clause
prohibits government from promoting religious faith in the public schools. But it has
189 Chief Justice Rehnquist and Justices White and Blackmun.
190 496 U.S. at 242.
191 515 U.S. 819 (1995).
also made clear that students possess both constitutional and statutory rights to
engage in religious activity which they initiate themselves on public school premises
and that the establishment clause does not trump the free speech clause with respect
to religious speech in a public forum created by a university.
(b) Religion in the Public Square. Prior to 1980 the Court had rendered
several decisions involving religious expression in settings other than the public
schools. In a series of cases in the 1940s largely involving the Jehovah’s Witnesses,
the Court established that the free speech clause of the First Amendment provides
broad protection for religious solicitation and proselytizing. Held unconstitutional
were ordinances and policies that gave local officials unfettered discretion to grant
or deny permits to speak in public parks,192 taxed the sale of religious literature by193194
itinerant evangelists and resident booksellers, and barred the door-to-door
distribution of religious handbills.195 The Court did affirm the legitimacy of neutral
time, place, and manner restrictions on speech in public places where the restrictions
were genuinely unrelated to the content of the speech involved.196 And it affirmed
as well the legitimacy of restrictions on the use of children in religious solicitations
under a state’s labor laws.197 But it generally established the principle that
government is constitutionally barred from restricting speech in public places,
whether religious or nonreligious, because of its content.
In these and other cases, the Court also developed the notion of the “public
forum,” i.e., that certain sites are by their nature and history particularly appropriate
for speech activities.198 It also posited that not all public properties are public
forums: “The crucial question is whether the manner of expression is basically
compatible with the normal activity of a particular place at a particular time.”199
192 Cantwell v. Connecticut, 310 U.S. 296 (1941); Niemotko v. Maryland, 340 U.S. 268
(1951); Kunz v. New York, 340 U.S. 290 (1951).
193 Jones v. Opelika, 319 U.S. 103 (1943); Murdock v. Pennsylvania, 319 U.S. 105 (1943).
194 Follett v. McCormick, 321 U.S. 573 (1944).
195 Martin v. Struthers, 319 U.S. 141 (1943).
196 Fowler v. Rhode Island, 345 U.S. 67 (1953); Poulos v. New Hampshire, 345 U.S. 395
197 Prince v. Massachusetts, 321 U.S. 158 (1944).
198 Justice Roberts described the concept in Hague v. CIO, 307 U.S. 496, 515 (1939)
Wherever the title of streets and parks may rest, they have immemorially been
held in trust for the use of the public and, time out of mind, have been used for
purposes of assembly, communicating thoughts between citizens, and discussing
See also Schneider v. State, 308 U.S. 147 (1939).
199 Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).
Since 1980 the Court has elaborated on its public forum doctrine and made clear
that in traditional or designated public fora, government cannot censor speech
because of its content without compelling reason. In nonpublic fora, however,
government has greater latitude: it can impose regulations that are reasonable so long
as the regulations are “not an effort to suppress expression merely because public
officials oppose the speaker’s view.”200 The Court has applied this framework of
analysis in six cases relating to religious speech and solicitation in such public fora
as a state fair, an airport terminal, a school auditorium, and other school facilities.
It has also addressed whether a municipality can require door-to-door religious
canvassers to first obtain a license. In addition, it has, in three cases, attempted for
the first time to delineate what government can and cannot do with respect to the
public display of religious symbols. Finally, in a case of first impression, it resolved
the constitutionality of government sponsorship of religious speech in the form of the
(1) Government regulation of religious speech and solicitation. In
five decisions since 1980 the Court has affirmed that in places that traditionally or
by designation are devoted to expression, government may not prohibit or censor
religious speech without compelling reason or under regulations that are not
viewpoint neutral. In a sixth case it has held that door-to-door canvassing by
religious groups cannot be subjected to municipal licensing; and it has also held that
in regulating charitable solicitations, government must act in an evenhanded manner,
i.e., it cannot favor some religious solicitations over others. But the Court has also
reaffirmed that government can impose reasonable time, place, and manner
Heffron v. International Society for Krishna Consciousness, Inc. (ISKCON)201
involved a state regulation imposed on the distribution and sale of literature and the
solicitation of donations at the Minnesota State Fair. The regulation required such
activities to be done only from fixed locations, i.e., pre-assigned rented booths.
ISKCON claimed that its religious ritual of Sankirtan requires the faithful to go into
public places to distribute or sell religious literature and to solicit donations to
support the Krishna religion. But the Court unanimously held Minnesota’s “booth
rule” to be constitutional with respect to the sale of literature and the solicitation of
donations, and by a 5-4 margin upheld it as well with respect to the distribution of
literature. The Fair, the Court said, was a limited public forum, and the regulation
was a reasonable time, place, and manner restriction. It was applied in a
nondiscriminatory manner; was unrelated to the content or the subject matter of the
speech involved; did not vest arbitrary discretion in any governmental authority;
served the “substantial state interest” of ensuring the orderly movement of the crowds
attending the Fair and of avoiding congestion; and left ISKCON and other
organizations at the Fair ample opportunity to engage in protected speech.
200 Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37, 46
201 452 U.S. 640 (1981).
In Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus,
Inc.,202 in contrast, the Court unanimously struck down a regulation that banned all
First Amendment activities in the Central Terminal Area of Los Angeles
International Airport. The regulation had been applied to bar a minister of the Gospel
for Jews for Jesus from distributing free religious literature on a pedestrian walkway
in the Airport. The Court, without deciding whether the Terminal constituted a
traditional public forum, a limited public forum, or a nonpublic forum, held the
regulation to be overbroad and facially unconstitutional. By its terms, Justice
O’Connor wrote for the Court, the regulation created “a virtual `First Amendment
Free Zone’” at the Airport. It was not limited to expressive activity that might be
disruptive or create congestion, but prohibited “even talking and reading, or the
wearing of campaign buttons or symbolic clothing.” “No conceivable governmental203
interest,” she stated, “could justify such an absolute prohibition of speech.”
In International Society for Krishna Consciousness, Inc. v. Lee204 the Court did
reach the question of whether public airport terminals are traditional or designated
public fora for free speech purposes, and it held that they are not. As a consequence,
the Court held that the airport authority in this instance needed only a rational basis
for its regulations. Thus, it held, 6-3, that the authority could constitutionally ban the
solicitation of funds in the terminals, because it was reasonable to surmise that the
in-person solicitation of funds would be disruptive, pose risks of duress and fraud,
and foster congestion. But a different majority of the Justices held, 5-4, that the
airport authority could not prohibit religious groups from distributing literature in the
airport terminals. Justices Kennedy, Blackmun, Stevens, and Souter asserted that the
terminals were public fora and that the ban on literature distribution was
unconstitutional because it was “not drawn in narrow terms” and did not leave open
“ample alternative channels of communication.” However, Justice O’Connor,
casting the deciding vote, reasoned that the terminals were not public fora but that
leafletting was inherently less disruptive than solicitation and was compatible with
the “multipurpose environment of the ... airports.”
In Lamb’s Chapel v. Center Moriches School District205 the Court unanimously
held unconstitutional a school’s refusal to permit a religious group to use its school
auditorium during non-instructional hours to show a film on family life. The Court
noted that the school district generally permitted its schools to be used for social,
civic, and recreational purposes after school hours, and concluded that to deny a
group the right to use the facilities simply because it was religious discriminated on
the basis of viewpoint in violation of the free speech clause. “[T]he government
violates the First Amendment,” the Court quoted from another case,206 “when it
denies access to a speaker solely to suppress the point of view he espouses on an
otherwise includible subject.” The school district claimed it denied permission to
202 482 U.S. 569 (1987).
203 Id. at 575.
204 506 U.S. 805 (1992).
205 508 U.S. 384 (1993).
206 Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788, 806 (1985).
avoid violating the establishment clause, but the Court rejected that claim. In light
of the facts that there was no school sponsorship involved, that the event would have
been open to the public, that it would not have taken place during school hours, and
that the school property was repeatedly used by a wide variety of private
organizations, the Court said, “there was no realistic danger that the community
would think that the District was endorsing religion or any particular creed, and any
benefit to religion or to the Church would have been no more than incidental.”207
Similarly, in Good News Club v. Milford Central School208 the Court reiterated
that a public school district cannot, consistent with the free speech clause, open its
facilities for general community use after school hours but deny their use for religious
worship and discussion by a religious club. In this instance the school district had
adopted a policy allowing general community use but barred their use for “religious
purposes; and pursuant to that policy it had refused permission to a religious club
open to elementary school children that wanted to meet on school property after the
end of the school day. The Court held that refusal to violate the free speech clause,
and there was no logical distinction between the religiously based moral instruction
offered by the Good News Club and the teachings of other groups allowed to use the
facilities, such as the Boy Scouts, the Girl Scouts, and the 4-H Club. The Court also
rejected the argument that use of the school’s facilities by the Club would violate the
establishment clause. It said that allowing such use would simply treaty the Club
neutrally, the religious conduct involved was wholly private and not school-
sponsored, and there was no more risk that the elementary school children would
perceive such use to constitute school endorsement of religion “than the danger that
they would perceive hostility toward the religious viewpoint if the Club were
excluded from the public forum.”
In Watchtower Bible & Tract Society of New York, Inc. v. Stratton, Ohio209 the
Court held the free speech clause to be violated by a village ordinance that barred
individuals and organizations, including religious proselytizers, from going door-to-
door in the community unless they first obtained a permit from the mayor’s office.
The Court said that if the ordinance had applied only to commercial activities and the
solicitation of funds, it “arguably ... would have been tailored to the Village’s
interests in protecting the privacy of its residents and preventing fraud.” But, it
asserted, the fact that it applied to religious and political causes as well made it
“offensive – not only to the values protected by the First Amendment, but to the very
notion of a free society.” The Village’s claimed interests in preventing fraud,
protecting the privacy of its residents, and preventing crime, it concluded, could not
justify such a sweeping requirement on speech. The decision was 8-1.
Finally, in Larson v. Valente210 the Court made clear that government cannot
favor some religious organizations and disfavor others in regulating solicitations for
207 Lamb’s Chapel v. Center Moriches School District, supra, at 397.
208 533 U.S. 98 (2001).
209 122 S.Ct. 2080 (2002).
210 456 U.S. 228 (1982).
contributions. A Minnesota statute required charitable organizations to register and
file annual reports with the state as a condition of soliciting funds within the state but
exempted religious organizations from these requirements if they received more than
50 percent of their contributions from their own members. The Court, stating that
“[t]he clearest command of the Establishment Clause is that one religious
denomination cannot be officially preferred over another,”211 held this 50 percent rule
to constitute a denominational preference. The statute, Justice Brennan asserted for
the Court, distinguished between well-established churches supported largely by their
own members and new religious organizations that for practical or policy reasons
sought support from the public at large. Because the statute involved such a
preference, the Court analyzed its constitutionality not only under the tripartite test
but under a strict scrutiny test. The tripartite test was violated, Justice Brennan
wrote, because the measure involved “religious gerrymandering” by the legislature.
The legislative debate on the measure, he said, showed an intent that certain religions
were to be favored, others disfavored. In addition, the Court held the measure to
violate the strict scrutiny test. The protection of the state’s citizens from abusive
practices in the solicitation of funds for charity, Justice Brennan wrote, constituted
a sufficiently compelling governmental interest under the strict scrutiny test, but the
means chosen to effectuate that interest were not “closely fitted” to that purpose.
Nothing validated the assumptions that organizations receiving more than 50 percent
of their funds from their own members would be closely supervised by those
members, that such membership control was an adequate safeguard against abusive
or fraudulent solicitations of the public, or that the need for public disclosure rises
in proportion to the percentage of nonmember contributions. Thus, the Court held,
the measure failed to meet the requirements of the strict scrutiny test. The decision
was by a 5-4 margin.
(2) Display of religious symbols. None of the decisions recounted in the
preceding subsection was particularly surprising. But since 1980 the Court has
broken new ground in addressing the constitutional parameters governing the display
of religious symbols on public property. In two decisions the Court held that
government cannot itself display or give preference to the display by others of
particular religious symbols on public property but that it can include religious
symbols in generally secular holiday displays. In a third decision the Court made
clear that private sponsors of religious symbols have a constitutional right to display
the symbols in traditional public fora, so long as the circumstances of the display do
not connote governmental endorsement.
In Lynch v. Donnelly212 the issue was the constitutionality of a municipality’s
inclusion of a creche as part of a seasonal Christmas display in a local park. The
display included not only the creche but also such items as a “talking” wishing well,
a Santa’s house, a small village, candy-striped poles, a grouping of carolers and
musicians, reindeer pulling Santa’s sleigh, hundreds of colored lights, and a large
banner reading “Season’s Greetings.” All of the items in the display, including the
creche, had been purchased by the city and were maintained and erected each year by
city workers. In a 5-4 decision holding the inclusion of the creche in the display to
211 Id. at 244.
212 465 U.S. 668 (1984).
be constitutional, the Court said the critical fact was that there was “an unbroken
history of official acknowledgment by all three branches of government of the role
of religion in American life ....” Such items as the designation of Thanksgiving and
Christmas as national holidays, the hiring of chaplains by the Congress, the
designation of the phrase “In God We Trust” as the nation’s motto and its inscription
on our coins and currency, the annual National Day of Prayer, the display of religious
paintings in public museums — all gave evidence, Chief Justice Burger wrote for the
Court, of government’s “accommodation of all faiths and all forms of religious
expression and hostility toward none.” The creche, he said, was simply another
permissible accommodation. In the context of the Christmas season, he stated, the
creche was an essentially “passive” symbol that promoted Christianity or religion
generally no more than numerous other instances of government acknowledgment of
religion. Although the creche had religious significance, he concluded, its essential
purpose in the display was simply to “depict the historical origins of this traditional
event long recognized as a National Holiday.”
Similarly, the Court in County of Allegheny v. American Civil Liberties Union,
Greater Pittsburgh Chapter213 upheld as constitutional Pittsburgh’s display of a large
Christmas tree, an 18-foot high menorah, and a sign designating the display to be a
“Salute to Liberty” in front of the City-County Building during the Christmas season.
The case produced numerous concurrences and dissents, and on this issue there was
no majority opinion. But Justice Kennedy, for four members of the Court,214
reiterated the Lynch rationale that the tree and menorah were “purely passive symbols
of religious holidays” and that by using them the City simply acknowledged “the
historical background and the religious as well as secular nature of the Chanukah and
Christmas holidays.” The display, he asserted, did not use “the government’s power
to coerce ... to further the interests of Christianity or Judaism in any way.” Justices
Blackmun and O’Connor concurred in separate opinions that this display was
constitutional on the grounds that the display as a whole did not convey a government
endorsement of either Christianity or Judaism but instead communicated a message
of “pluralism and freedom of belief.”
But in County of Allegheny the Court also, in a bitterly disputed holding, held
unconstitutional a county’s display of a creche by itself on the grand staircase of the
County Courthouse during the Christmas season. The creche bore an angel at its
crest proclaiming “Gloria in Excelsis Deo!” and was erected each year by a private
Catholic men’s organization. The county decorated the area around the creche each
year with poinsettias, evergreen trees, and Christmas wreaths, and invited choirs to
participate in a daily program of Christmas carols performed with the creche in the
foreground. Justice Blackmun, writing for the Court on this issue, employed Justice
O’Connor’s endorsement test as the applicable principle in the case and found that
the creche communicated an “indisputably religious” message. Moreover, he said,
“unlike in Lynch, nothing in the context of the display detracts from the creche’s
religious message.” Its display by itself in the “main” and “most beautiful part” of
the building that was the seat of county government, he stated, sent “an unmistakable
message that [the government] supports and promotes the Christian praise to God
213 492 U.S. 573 (1989).
214 Chief Justice Rehnquist and Justices White, Scalia, and Kennedy.
that is the creche’s religious message.” By endorsing a “patently Christian message,”
he concluded, the display violated the establishment clause.
The third case in this area involved the display of a private religious symbol in
a public park adjacent to an important government building. The Ku Klux Klan
sought to erect a cross in the public square in front of Ohio’s State Capitol Building
during the Christmas season but had been rebuffed for the alleged reason its
placement in that location would communicate a governmental endorsement of
religion. But in Capitol Square Review and Advisory Board v. Pinette215 the Court,
by a 7-2 margin held the public square to be a public forum traditionally available for
all kinds of expression and held the establishment clause not to justify the state’s
prohibition on the erection of the cross. Government can censor speech in a
traditional public forum only if it has a compelling reason for doing so, Justice Scalia
wrote for the Court, but the establishment clause is not such a reason in this context.
“(O)ur precedent,” he stated, “establishes that private religious speech, far from being
a First Amendment orphan, is as fully protected under the Free Speech Clause as
secular private expression.” Five Justices further examined whether the placement
of the cross in proximity to the State Capitol might communicate a governmental
endorsement of religion but, given the history of the square’s use for expressive
purposes and the presence of a sign disclaiming governmental endorsement,
concluded that it would not.
In sum, these cases confirm that the establishment clause permits government
to include a religious symbol in a predominantly secular holiday display but also that
the clause prohibits government from displaying, or permitting others to display,
quintessential religious symbols by themselves at governmental sites that are not
public forums. The cases further establish that in forums that are traditional sites of
free expression, the display of religious symbols by private parties is fully protected
by the free speech clause unless the circumstances communicate a message of
governmental endorsement of religion to a reasonable observer. But these principles
are tenuous. These three cases have been among the most bitterly disputed
establishment clause decisions on the Court, and as a consequence, it seems possible
that the issue of the constitutional parameters governing the display of religious
symbols might be revisited by the Court in the future.
(3) Legislative chaplaincies. Despite the long history of chaplains and
prayers in legislative assemblies, the Court did not have occasion to address the
constitutionality of the practice until 1983. In Marsh v. Chambers216 the Court, by
a 6-3 margin, held a legislative chaplaincy sponsored and funded by the state of
Nebraska not to violate the establishment clause. As previously noted, in deciding
this case the Court for the first time eschewed use of the tripartite test, relying instead
on two aspects of the history of the practice. Stating that “[t]he opening of sessions
of legislative and other public bodies with prayer is deeply embedded in the history
215 515 U.S. 753 (1995).
216 463 U.S. 783 (1983).
and tradition of this country,”217 the Court first observed that legislative sessions had
been opened with prayer for more than two centuries on the national level and more
than a century in Nebraska. But secondly, and more importantly, the Court relied
upon the acts of the First Congress in concluding that the establishment clause does
not proscribe legislative prayer: Only three days prior to giving final approval to the
Bill of Rights, Chief Justice Burger wrote for the Court, both houses of the First
Congress authorized the appointment of paid chaplains. Thus, he concluded, “clearly
the men who wrote the First Amendment did not view paid legislative chaplains and
opening prayers as a violation of that Amendment.”218 “To invoke Divine guidance
on a public body entrusted with making the laws ...,” the Court found, “is simply a
tolerable acknowledgment of beliefs widely held among the people of this
(c) Public Aid to Religious Organizations. Among the establishment
clause issues that have stirred passionate political and legal controversy, the
constitutionality of public aid to religious organizations has been the subject of more
Supreme Court decisions than any other. Yet the issue persists, and it is one area in
which a loosened construction of the establishment clause could have profound
effects. That reinterpretation clearly is occurring. The Court’s ten decisions in this
area since 1980 have expanded the extent to which government can assist religious
enterprises, both directly and indirectly; and, in two of its most recent decision, the
Court for the first time overturned some of its prior establishment clause cases which
had limited particular forms of direct aid.
Prior to the 1980s the Court had construed the establishment clause to impose
substantial, although not absolute, constraints on public aid to religious institutions.
Direct public aid, the Court had said, must be limited to “secular, neutral, and
nonideological purposes.”220 Direct support could be provided to the secular
programs and services sponsored or provided by religious organizations but not to
such organizations’ religious activities or proselytizing. As a consequence, the Court
struck down numerous aid programs benefitting sectarian elementary and secondary
schools, because the Court found these institutions to be “pervasively sectarian,” i.e.,
so permeated by a religious purpose and character that their secular functions and
religious functions were “inextricably intertwined.” Under the tripartite Lemon test
direct aid to such institutions was found either to have an inevitable effect of
advancing religion or, if the government attempted to limit the aid to secular use
only, to result in the excessive entanglement of government and the assisted
institutions as the government monitored the institutions’ use of the aid to be sure the
secular use limitation was honored.221 On the other hand, the Court had found direct
public aid to religious institutions that were not pervasively sectarian, such as
217 Id. at 786.
218 Id. at 788.
219 Id. at 792.
220 Committee for Public Education v. Nyquist, 413 U.S. 756, 780 (1973).
221 Id.; Lemon v. Kurtzman, 403 U.S. 602 (1971); Meek v. Pittenger, 421 U.S. 349 (1975);
Wolman v. Walter, 433 U.S. 229 (1977).
religious hospitals and colleges, to be constitutionally permissible. The Court’s
rationale was that such institutions were essentially secular in nature and thus the
public aid did not resulted in the advancement of religion and did not lead to the
excessively entangling monitoring required of direct aid to pervasively sectarian
Indirect aid benefitting sectarian elementary and secondary schools had also
been held unconstitutional by the Court prior to the 1980s. In Committee for Public223
Education v. Nyquist and Sloan v. Lemon programs providing both tax benefits and
tuition grants were held unconstitutional by the Court because they were designed to
benefit only the parents of private schoolchildren and most of the institutions that
ultimately benefited from the assistance were pervasively sectarian.224 Significantly,
however, the Court in these cases specifically reserved the question of the
constitutionality of “public assistance ... made available generally without regard to225
the sectarian-nonsectarian or public-nonpublic nature of the institution benefitted.”
The Court’s indirect aid decisions since 1980 have addressed this reserved
question and upheld as constitutional tuition grant, tax benefit, and education
assistance programs that indirectly provide economic benefits to pervasively sectarian
schools but that have been “made available without regard to the sectarian-
nonsectarian or public-nonpublic nature of the institution benefitted.” Moreover, in
its most recent decision, the Court in Zelman v. Simmons-Harris loosened the
constitutional strictures on education voucher programs in such a manner that most
such programs appear likely to be able to pass constitutional muster.
In addition, the Court has substantially revised its prior establishment clause
jurisprudence concerning direct aid to sectarian schools. It has held it to be
constitutional for public school teachers to provide remedial educational services to
sectarian school children on the premises of the schools they attended and for
instructional materials and equipment to be loaned to sectarian schools. In both
instances the Court overturned prior conflicting decisions. The Court has also
virtually eliminated pervasive sectarianism as a constitutional criterion.
(1) Direct assistance programs. In School District of the City of Grand
Rapids v. Ball226 and Aguilar v. Felton227 the Court in 1985 held unconstitutional
programs in which public school districts sent public school teachers into private
sectarian schools to provide remedial and/or enrichment instruction to eligible
222 Bradfield v. Roberts, 175 U.S. 291 (1899); Tilton v. Richardson, 403 U.S. 672 (1971);
Roemer v. Maryland Board of Public Works, 426 U.S. 736 (1976).
223 413 U.S. 790 (1973) and 413 U.S. 826 (1973), respectively.
225 Committee for Public Education v. Nyquist, 413 U.S. at 783, n. 38.
226 473 U.S. 373 (1985).
227 473 U.S. 402 (1985).
children attending those schools. But twelve years later in Agostini v. Felton228 the
Court overturned Aguilar and this part of Ball, as well as the related parts of the
earlier decisions of Meek v. Pittenger229 and Wolman v. Walter.230 As a result, it is
once again constitutionally permissible for public school teachers to provide remedial
and enrichment educational services to sectarian school children on the premises of
the schools they attend. Prior to 1980 in Meek v. Pittenger, supra, and Wolman v.
Walter, supra, the Court had also held unconstitutional direct aid programs that
provided instructional materials (other than textbooks) and equipment directly to
sectarian elementary and secondary schools. But in Mitchell v. Helms231 the Court
overturned those decisions and held such a program to be constitutional.
The program in Ball was locally funded, but Aguilar involved New York City’s
implementation of the federal Title I program for educationally disadvantaged
children.232 In both programs the teachers were public school employees, the services
were provided on the premises of the private schools, and the schools involved were
almost all pervasively sectarian. But New York City’s program included as well an
extensive system of controls, including on-site monitoring, to ensure that the teachers
did not engage in religious activities or religious instruction.
The Court, by identical margins of 5-4, struck down the Grand Rapids program
on the grounds it had a primary effect of advancing religion and the New York City
program for the reason it precipitated excessive entanglement between church and
state. The establishment clause, Justice Brennan wrote for the Court, “absolutely
prohibit[s] government-financed or government-sponsored indoctrination into the
beliefs of a particular religious faith.”233 The Grand Rapids program, he said, posed
“a substantial risk of state-sponsored indoctrination” in three ways. The pervasively
religious nature of the schools, he asserted, might cause the teachers “to conform
their instruction to the environment in which they teach”234; the program created a
“symbolic union of government and religion” that conveyed a message of
government endorsement of the religious faith of the aided institutions; and the
program subsidized the religious functions of the aided schools “by taking over a
substantial portion of their responsibility for teaching secular subjects.”235 New York
City argued in Aguilar that its system of controls ensured that its Title I program did
not have these unconstitutional effects. But without addressing that issue, the Court
held that the system of monitoring and controls itself unconstitutionally entangled the
city with the religious schools. Justice Brennan, again writing for the Court, said the
“detailed monitoring and close administrative contact” involved in the City’s
228 521 U.S. 203 (1997).
229 421 U.S. 349 (1975).
230 433 U.S. 229 (1977).
231 120 S.Ct. 2530 (2000).
232 20 U.S.C. 3801 et seq. (1988).
233 473 U.S. at 385.
234 Id. at 388.
235 Id. at 397.
program violated an underlying objective of the establishment clause “to prevent, as
far as possible, the intrusion of either [church or state] into the precincts of the
other.”236 Notwithstanding the worthwhile social purpose of the program, he said,
it created the specter of government agents prowling the halls of religious schools to
ward off the “infiltration of religious thought.”
Subsequently, a majority of the Justices on the Court expressed a desire to
reconsider these decisions,237 and in 1997 in Agostini v. Felton, supra, the Court did
so, along with its earlier rulings on similar programs in Meek v. Pittenger, supra, and
Wolman v. Walter, supra. Each of the assumptions on which those decisions had
been based, Justice O’Connor wrote for the Court, had been “undermined” by more
recent decisions. In Zobrest v. Catalina Foothills School District,238 she said, the
Court repudiated the notion that the placement of public employees on parochial
school grounds inevitably leads to religious indoctrination as well as the assumption
that such a placement creates an “impermissible symbolic link” between government
and religion. In Zobrest and Witters v. Washington Department of Services for the
Blind,239 she asserted, the Court rejected the notion that “all government aid that
directly aids the educational function of religious schools” is unconstitutional.
Finally, she said, absent the assumption that public teachers in a sectarian school
necessarily pose a serious risk of inculcating religion, “the assumption that pervasive
monitoring of [such] teachers is required” is also no longer valid. Thus, she
concluded, the constitutionality of the programs should be evaluated under the
criterion of 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.” Finding the Title
I program to meet that test, she stated, “accordingly, we must acknowledge that
Aguilar, as well as the portion of Ball addressing Grand Rapids’ Shared Time
program, are no longer good law.”
Grand Rapids had also held a second program funded and operated by the city
to be unconstitutional, and that ruling was not disturbed by the Agostini decision. In
that program (the Community Education program) the city paid parochial school
teachers to provide an array of before and after school programs to the students who
attended their schools and imposed no restrictions regarding religious content. The
Court found the program to constitute aid to the institution rather than to the students
and held it to “inescapably [have] the primary effect of providing a direct and
substantial advancement of the sectarian enterprise.”
In Mitchell v. Helms, supra, the Court also overturned some of its prior
jurisprudence in the process of upholding as constitutional a federal program
subsidizing the provision of instructional materials and equipment to public and
236 473 U.S. at 413.
237 See the concurring opinions of Justices O’Connor and Kennedy and the dissenting
opinion of Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, in Board
of Education of the Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994).
238 509 U.S. 1 (1993).
239 474 U.S. 481 (1986).
private schools, 6-3. The aid at issue included such items as computers, computer
software, library books, filmstrip projectors, overhead projectors, television sets,
VCRs, maps, globes, and printers. The Court issued no majority opinion in the case,
however. Instead, Justice Thomas, joined by Chief Justice Rehnquist and Justices
Scalia and Kennedy, held the program not to violate the establishment of religion
clause because the aid was made available to public and private schools alike on a
religiously neutral basis and was secular in content. Justice O’Connor, joined by
Justice Breyer, concurred that the program was constitutional but on the grounds not
only that eligibility for assistance was determined on a religiously neutral basis but
also that the use of the assistance was subject to a number of statutory and regulatory
restrictions to secular use and there was no evidence the aid had been diverted for
religious purposes. Justices Souter, Ginsberg, and Stevens dissented on the grounds
the schools were pervasively sectarian and the aid, consequently, materially advanced
the religious mission of the sectarian schools.
In so ruling the Court overturned parts of its prior decisions in Meek v.
Pittenger, supra, and Wolman v. Walter, supra. The reasoning of the Justices in the
two opinions comprising the majority in Mitchell also made clear that pervasive
sectarianism is no longer deemed to be fatal to an aid program’s constitutionality.
Justice Thomas opined that so long as aid is dispensed on a religiously neutral basis
and is secular in nature, nothing in the establishment clause bars the recipient
institution from using it for religious purposes. Justice O’Connor asserted that public
aid still had to be limited to secular use in the recipient institutions but that there was
no reason to assume that such a limitation could not be honored in religious
elementary and secondary schools. Thus, as in Agostini, she saw no reason for close
government monitoring of the institutions’ use of the aid that might be excessively
At the college level the Court, by a 5-4 margin, held in Rosenberger v. The
Rector and Visitors of the University of Virginia240 that when a public university
creates a forum for the expression of student opinions, it cannot exclude student
religious opinions. In this instance the University of Virginia fostered the creation
of publications by student organizations by paying their printing bills out of the
student activities fund (SAF). However, it excluded religious publications, among
others, from the subsidy, arguing that the establishment clause prohibits the funding
of such a religious activity. But the Court rejected the argument. It held the object
of the SAF to be “to open a forum for speech” and the University’s exclusion of the
religious publication, as a consequence, to constitute viewpoint discrimination
violative of the free speech clause of the First Amendment. The SAF was not a tax
used to support a church, the Court said, but essentially amounted to a religiously
neutral fund to promote private student speech. The Court said the University’s
policy of exclusion itself threatened to violate the establishment clause because the
University would then have to scrutinize every publication and determine when its
religious content was too great. Justice O’Connor, the decisive vote in the case,
stressed in a concurring opinion the factors that the publications were genuinely
independent of the University, that the payments were made not directly to the
sponsoring student organizations but to the printer, that numerous publications were
240 515 U.S. 819 (1995).
subsidized, and that students could, at least hypothetically, seek a refund for any
portion of their fees used for speech with which they disagreed. These factors
convinced her, she said, that “providing ... assistance in this case would not carry the
danger of impermissible use of public funds to endorse Wide Awake’s religious
Finally, outside the school context the Court in Bowen v. Kendrick241 upheld as
facially constitutional, 5-4, provisions of the Adolescent Family Life Act242 (AFLA)
which permitted grants for pregnancy prevention and care services to adolescents to
be made to religious organizations and which mandated that all grantees devise ways
of involving other organizations, including religious ones, in the delivery of such
services. The Court applied the same principles under the tripartite test as it had in
past school aid cases and held the establishment clause not to automatically foreclose
all religious organizations from participating in a publicly funded program such as
AFLA. Chief Justice Rehnquist, writing for the Court, reiterated that direct public
grants cannot be given to pervasively sectarian organizations or otherwise used for
religious purposes, but he rejected the contention that “no grants whatsoever can be
given under the statute to religious organizations.”243 Although holding the statute
facially constitutional, the Court remanded the case back to the district court for
further fact-finding on whether particular grantees might have been pervasively
sectarian and whether particular grants might have been used for religious
(2) Indirect assistance programs. In four other decisions involving
sectarian elementary and secondary schools, however, the Court has, since 1980,
opened the constitutional door to indirect subsidies. In Mueller v. Allen,245 Witters246
v. Washington Department of Services for the Blind, Zobrest v. Catalina Foothills
School District,247 and Zelman v. Simmons-Harris,248the Court upheld the provision
of various forms of educational assistance to individuals on the grounds they
possessed a genuinely free choice about whether to use the assistance at sectarian or
nonsectarian schools. Mueller involved a Minnesota program permitting taxpayers
to deduct from their gross income, up to a pre-set maximum, the expenses incurred
in sending their children to elementary or secondary school. The deduction could be
taken regardless of whether the children attended public or private school and applied
to such expenses as tuition, textbooks, fees, and transportation. Then-Justice
Rehnquist, writing for the Court, stressed that, in contrast to the earlier indirect
241 487 U.S. 589 (1988).
242 42 U.S.C. 300z et seq. (1988).
243 487 U.S. at 611.
244 Subsequently the parties entered into a settlement agreement and the case was dismissed.
See Kendrick v. Sullivan, Civil Action No. 83-3175 (D.D.C. Jan. 19, 1993) (order granting
joint motion to dismiss with prejudice).
245 463 U.S. 388 (1983).
246 474 U.S. 481 (1986).
247 509 U.S. 1 (1993).
248 122 S.Ct. 2460 (2002).
assistance programs struck down by the Court,249 the Minnesota deduction was
“available for educational expenses incurred by all parents, including those whose
children attend public schools and those whose children attend nonsectarian private
schools or sectarian private schools.”250 “[A] program ... that neutrally provides state
assistance to a broad spectrum of citizens,” he concluded, “is not readily subject to
challenge under the Establishment Clause.” He stressed as well that the assistance
was extended to parents rather than directly to sectarian schools, because “[w]here
... aid to parochial schools is available only as a result of decisions of individual
parents no `imprimatur of state approval’ can be deemed to have been conferred on
any particular religion, or on religion generally.”251
The Court’s decision in Mueller was 5-4. But in Witters v. Washington
Department of Services for the Blind the Court was unanimous in upholding as
constitutional a state vocational rehabilitation grant to a blind person who wanted to
use the grant to train for a religious ministry. Justice Marshall, who had dissented
in Mueller, made no reference to Mueller in his opinion for the Court. But he
emphasized, as had Mueller, that “[a]ny aid provided under Washington’s program
that ultimately flows to religious institutions does so only as a result of the genuinely
independent and private choices of aid recipients.”252 “[T]he fact that aid goes to
individuals,” he said, “means that the decision to support religious education is made
by the individual, not by the State.”253 He also emphasized that there was no
likelihood that any substantial portion of the vocational rehabilitation grants would
be used for such religious purposes, but five Justices filed concurring opinions
making clear that they did not regard the substantiality of aid that might go for
religious purposes to be a constitutionally significant issue.
In Zobrest v. Catalina Foothills School District the Court was again sharply
divided, 5-4. The case involved the provision of a sign language interpreter pursuant
to the Individuals with Disabilities Education Act (IDEA)254 to a deaf high school
student who wanted to attend a Catholic school. Using the reasoning of Mueller and
Witters, the Court held the assistance not to violate the establishment clause. “The
service at issue in this case,” the Court said, “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.” Thus, it asserted, the presence of a sign-language
interpreter in a sectarian school is the result not of state decision-making but stems
249 Committee for Public Education v. Nyquist, 413 U.S. 356 (1973) and Sloan v. Lemon,
250 463 U.S. at 397.
251 Id. at 399.
252 474 U.S. at 487.
253 Id. at 488. It might be noted that although Witters won this constitutional battle, he
eventually lost the war. The Washington Supreme Court held the Washington Constitution
to prohibit the use of a vocational rehabilitation grant for religious training. See Witters v.
Washington Department of Services for the Blind, 112 Wash.2d 363, 771 P.2d 1119, cert.
den., 493 U.S. 850 (1989).
254 20 U.S.C. 1400 et seq.
from the “private decision of individual parents.” The provision of “a neutral service
on the premises of a sectarian school as part of a general program that `is in no way
skewed towards religion,’” the Court concluded, “does not offend the Establishment
Mueller and Witters, it should be noted, did not overturn the Court’s earlier
decisions holding unconstitutional indirect aid to a universe of private elementary and
secondary schools that was predominantly sectarian. As noted above,255 Committee
for Public Education v. Nyquist and Sloan v. Lemon had specifically reserved the
question addressed in Mueller and Witters, i.e., the constitutionality of assistance
made available without regard to the sectarian-nonsectarian or public-nonpublic
nature of the institutions ultimately benefitted. The critical distinction between
Nyquist and Sloan, on the one hand, and Mueller and Witters, on the other, was
whether the initial beneficiaries of the government’s assistance possessed a genuinely
free choice about whether to use the assistance at a sectarian or nonsectarian
institution. If the government had shaped that decision by limiting the universe of
choice to institutions that were predominantly sectarian (as in Nyquist and Sloan), the
assistance, even though indirect, was found unconstitutional. If the universe of
choice was genuinely unfettered and independent, however, the assistance was
upheld, even though sectarian institutions received some, or even substantial,
economic benefit from it.
Nonetheless, in its most recent decision in Zelman v. Simmons-Harris256 the
Court narrowed the precedential scope of Nyquist and Sloan and made it significantly
easier for voucher programs to pass constitutional muster. Again by a 5-4 margin,
the Court in Zelman upheld as constitutional a program that gave low-income
children in failing public schools in Cleveland, Ohio, a voucher that they could use
to attend private schools in the city. More than 80 percent of the schools
participating were religious in nature, however, and as a result 96 percent of the
eligible children chose to attend such schools. But notwithstanding the
predominance of religious schools in the universe of private schools open to the
voucher children, the Court still found that the program gave the parents and their
children a “true private choice.” In contrast to its previous decisions, the Court said
the universe of choices available to voucher children was not limited to the private
schools where the vouchers could be redeemed but included all of the educational
choices available to them in Cleveland, including various public school options.
Chief Justice Rehnquist stated for the Court:
Cleveland schoolchildren 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
255 See p. 52.
256 122 S.Ct. 2460 (2002).
question must be answered by evaluating all of the options Ohio provides
Cleveland schoolchildren, only one of which is to obtain a program scholarship257
and then choose a religious school.
Thus, he concluded, the voucher program satisfied the requirements of the
establishment clause. The program served the “valid secular purpose of providing
educational assistance to poor children in a demonstrably failing public school
system.” The aid was distributed to the initial recipients on a religion-neutral basis,
i.e., vouchers were available to all children in failing public schools. Finally, the
initial recipients had a “genuine choice among options public and private, secular and
In sum, then, the Court since 1980 has validated a broader range of both direct
and indirect assistance than was thought to be constitutionally permissible prior to
(d) Governmental Solicitude for Religion. The Court’s diminution of the
protection afforded religious practices by the free exercise of religion clause has been
detailed in the first section above, and will not be reiterated here. As noted there,
except with respect to eligibility for unemployment benefits when there is a conflict
between the requirements of a job and an individual’s religious precepts, an as-yet
undefined area of “hybrid” claims, and government actions that intentionally
discriminate against religion, the Court’s decisions on free exercise since 1980 seem
to mean that the free exercise clause interposes no barrier to governmental restriction
of religious practices through evenhanded regulations.
But seven cases during the 1980s concerned a related dimension of the religion
clauses, i.e., deliberate government efforts to protect individual and institutional
religious practices. If the free exercise clause does not mandate special protection for
religious practices, may government nonetheless give religion special privileges or
require private entities in society to accommodate religious practices? In its seven
decisions the Court upheld government policies that prohibit employers from
discriminating on religious grounds as well as policies that exempt religious
employers from such prohibitions. But the Court also made clear that government
cannot, in the guise of protecting religion, give religious practices an absolute
preference over other individual and societal concerns; nor may it give particular
religious groups special accommodations that may not be available to nonreligious
groups in similar circumstances.
Four cases, in particular, illuminated the limits on what government can do to
protect religion. In Larkin v. Grendel’s Den258 the Court held unconstitutional, 8-1,
a Massachusetts statute that gave churches a veto power over the issuance of liquor
licenses to nearby enterprises. The statute provided that liquor licenses could not be
issued for enterprises located within 500 feet of a church or school “if the governing
body of such church or school files written objection thereto.” In this particular case
a church near Harvard Square in Cambridge had objected to the issuance of a liquor
257 Id. at 4688.
258 459 U.S. 116 (1982).
license to an adjacent restaurant; and the Cambridge License Commission had, in
conformity with the statute, denied the restaurant’s application, despite the fact that
25 establishments within 500 feet of the church already were so licensed. Chief
Justice Burger, writing for the Court, conceded that the state had a valid secular
interest in using its zoning powers to “protect spiritual, cultural, and educational
centers from the `hurly-burly’ associated with liquor outlets.” But the means used
in this instance, he said, “enmeshe[d] churches in the exercise of substantial
governmental powers contrary to our consistent interpretation of the Establishment
Clause.” The “core rationale” of the establishment clause, he said, was to prevent
“the fusion of governmental and religious functions.” But the statute in this case
symbolically joined church and state in a joint exercise of legislative authority, failed
to require that churches exercise their veto power in a religiously neutral way,
permitted religious institutions to exercise important discretionary governmental
powers, and created the danger of political fragmentation along religious lines. For
those reasons, he concluded, the statute breached the figurative “wall of separation”
that insulates religion and government from each other.
Similarly, in Estate of Thornton v. Caldor, Inc.259 the Court struck down, 8-1,
a Connecticut statute which gave every employee an absolute right not to work on
whatever day of the week the employee designated as the Sabbath. Chief Justice
Burger, writing for the Court, said that the statute “imposes on employers and
employees an absolute duty to conform their business practices to the particular
religious practices of the employee” and “commands that Sabbath religious concerns
automatically control over all secular interests at the workplace.” Because of the
absolute nature of that preference, he concluded, the statute had a primary effect of
advancing the religious practice of Sabbath observance in violation of the
Again, in Texas Monthly, Inc. v. Bullock260 the Court struck down, 6-3, a Texas
statute that exempted only publications published or distributed by a religious faith
and advancing the tenets of that faith from the state’s sales tax. Although none of the
four opinions issued on the matter had the support of a majority of the Court, five of
the Justices held the establishment clause to forbid such an exclusive preference for
religious publications. Justices Brennan, Marshall, and Stevens found the
narrowness of the exemption to constitute “state sponsorship of religious belief” and
to be “a blatant endorsement of religion.” Justices Blackmun and O’Connor said that
“by confining the tax exemption exclusively to the sale of religious publications,
Texas engaged in preferential support for the communication of religious messages.”
Such a statutory preference, they said, was “constitutionally intolerable.”
Finally, in Board of Education of the Kiryas Joel Village School District v.
Grumet261 the Court held unconstitutional a New York statute which sought to
accommodate the special education needs of children belonging to the Satmar
Hasidic sect by creating a public education district whose boundaries coincided with
259 472 U.S. 703 (1985).
260 489 U.S. 1 (1989).
261 512 U.S. 687 (1994).
the boundaries of the village inhabited by the sect. The Satmar had refused to send
their special needs children to sites outside the village because of the “panic, fear,
and trauma” that resulted from leaving their insular community and associating with
people “whose ways were so different.” So the New York legislature adopted a
special statute creating a public school district with boundaries identical to the
Satmar village in order to make them eligible for special education funds to subsidize
services for their special needs children within the village. But the Supreme Court
said, 6-3, that the statute “crosses the line from permissible accommodation to
impermissible establishment” and “violates the test of neutrality.” There was no
assurance, Justice Souter wrote for the Court, that a similar group would be similarly
treated in the future. The constitutional vice of the statute, he said, was that it
“single(d) out a particular religious sect for special treatment” and delegated a
significant governmental power “to an electorate defined by common religious belief
and practice, in a manner that fails to foreclose religious favoritism.”
But in Corporation of the Presiding Bishop of the Church of Jesus Christ of
Latter-Day Saints v. Amos262 the Court unanimously upheld the exemption of
religious institutions from the religious nondiscrimination in employment
requirements of Title VII of the Civil Rights Act of 1964. Title VII prohibits most
public and private employers from discriminating in their employment practices on
the grounds of race, color, national origin, sex, and religion.263 Section 702 of that
statute, however, exempts religious institutions from the religious nondiscrimination
requirement, i.e., such institutions can discriminate in their employment practices on
religious grounds, although not on the other prohibited grounds.264 In this case an
employee dismissed for religious reasons from a job with a nonprofit health facility
run by the Mormon Church challenged the constitutionality of the exemption. But
the Court held it to be permissible for government “to alleviate significant
governmental interference with the ability of religious organizations to define and
carry out their religious missions.” Even though the exemption applied to all the
activities of religious organizations and not just their religious ones, and even though
it applied only to religious organizations, Justice White wrote for the Court, it met
the requirements of the tripartite test.
Two other cases involving religious discrimination in employment were
resolved on statutory grounds. In Ansonia Board of Education v. Philbrook265 the
Court construed the reasonable accommodation requirement of Title VII not to
require an employer to accede to an employee’s preferred accommodation but simply
to require a proffer of a “reasonable resolution of the conflict.” To effectuate its ban
on religious discrimination in employment, Title VII requires employers to
“reasonably accommodate” their employees’ religious observances and practices
unless to do so causes “undue hardship on the conduct of the employer’s business.”266
262 483 U.S. 327 (1987).
263 42 U.S.C. 2000e et seq.
264 Id. § 2000e-1.
265 479 U.S. 60 (1986).
266 42 U.S.C. 2000e(j) (1988).
At issue in this case was whether the employer had to accept an employee’s preferred
accommodation unless it could show that the accommodation would impose an
undue hardship. The Court held that it did not, 7-2. “By its very terms,” Chief
Justice Rehnquist wrote for the Court, “the statute directs that any reasonable
accommodation by the employer is sufficient to meet its accommodation
Finally, in Shaare Tefila Congregation v. Cobb268 the Court unanimously
construed a federal statute to permit a Jewish congregation to seek civil damages
from persons who had desecrated its synagogue with anti-Semitic slogans, phrases,
and symbols. The statute in question, adopted shortly after the Civil War, guarantees
all citizens “the same right ... as is enjoyed by white citizens ... to inherit, purchase,
lease, sell, hold, and convey real and personal property”269 and has been construed by
the Court to prohibit private racially motivated interference with property rights.270
Although Jews today are not considered a distinct race, Justice White concluded for
the Court that they are within the protection of the statute, because at the time the
statute was adopted “Jews and Arabs were among the peoples then considered to be
distinct races.” Thus, he said, Jews can bring suit for civil damages under Section
1982 against persons who interfere with their property rights and are motivated by
racial animus against Jews.
(e) Taxation of Religious Entities. A number of cases since 1980 have
concerned the constitutionality of various taxes imposed on religious organizations
and individuals, and in its decisions the Court has made clear that government
possesses substantial discretion in this area of the law. The Court previously had
made few forays into this subject. In the 1940s cases of Murdock v. Pennsylvania271272
and Follett v. McCormick the Court had struck down as unconstitutional the
imposition of license and occupation taxes on itinerant evangelists. The Court found
such taxes to operate as a prior restraint on religious proselytizing and thus to “tend
to suppress” such evangelizing, in violation of the First Amendment. Moreover, in273
1970 in Walz v. Tax Commission of New York the Court upheld as constitutional
a property tax exemption afforded by New York City to religious organizations, 8-1.
Without quite saying that the exemption was constitutionally mandated, the Court
emphasized that the tax exemption of churches from property taxes created a lesser
degree of government entanglement with religion than would the contrary policy.
While a direct money subsidy might precipitate “a relationship pregnant with
involvement and ... encompass sustained and detailed administrative relationships for
enforcement of statutory and administrative standards,” the Court said, a tax
exemption simply means that government “abstains from demanding that the church
267 479 U.S. at 68.
268 481 U.S. 615 (1987).
269 42 U.S.C. 1981 (1988).
270 Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).
271 319 U.S. 105 (1943).
272 321 U.S. 573 (1944).
273 397 U.S. 664 (1970).
support the state.”274 The Court also stressed that the exemption was available not
just to religious organizations but also to property owned by hospitals, libraries,
playgrounds, scientific, professional, historical and patriotic groups, and that the tax
exemption of churches has been part of our national life since colonial times. It
concluded that “if tax exemption can be seen as th[e] first step toward
“establishment” of religion ..., the second step has been long in coming.”275
In its more recent decisions the Court, while generally reaffirming these
precedents, has not erected any other constitutional barriers to the imposition of
general taxes on religious individuals and organizations. In United States v. Lee276
the Court unanimously upheld the imposition of the employer’s portion of the Social
Security tax on an Amish employer, notwithstanding the Amish’ specific religious
belief against contributing to a public social insurance system. Congress had by
statute exempted self-employed Amish from paying such taxes,277 but the Court still
held the extension of the exemption to Amish employers holding such beliefs not to
be constitutionally mandated. “The tax imposed on employers to support the social
security system,” the Court said, “must be uniformly applicable to all, except as
Congress provides explicitly otherwise.”278
Similarly, in Bob Jones University v. United States279 the Court upheld the IRS’
revocation of the income tax exemption of a religious university that, on the basis of
its religious beliefs, discriminated on the basis of race. The government has a
“fundamental, overriding interest in eradicating racial discrimination in education,”
the Court stated, and that interest “substantially outweighs whatever burden denial
of tax benefits places on petitioners’ exercise of their religious beliefs.”280
Again, in The Jimmy Swaggart Ministries v. Board of Equalization of
California281 the Court upheld California’s imposition of general sales and use taxes
on a religious organization’s direct and mail order sales of religious literature. The
Ministries argued that the taxes unduly burdened its ability to carry out its religious
ministry and created excessive administrative entanglement between government and
itself. But the Court asserted that the taxes were imposed neutrally on all retail sales
and did not single out religious activity for special and burdensome treatment. It
further asserted that any administrative burden involved in collecting and remitting
the taxes was not “constitutionally significant.”
274 Id. at 673.
275 Id. at 676.
276 455 U.S. 252 (1981).
277 26 U.S.C. 1402(g) (1988).
278 455 U.S. at 260.
279 461 U.S. 574 (1983).
280 Id. at 574. Then-Justice Rehnquist dissented from the Court’s ruling that the IRS
properly imposed a racial nondiscrimination condition on the tax exemption of private
schools but agreed that such a condition did not infringe the schools’ free exercise rights.
See id. at 622, n. 3.
281 493 U.S. 378 (1990).
And in Hernandez v. Commissioner of Internal Revenue282 the Court upheld as
constitutional IRS’ denial of a charitable tax deduction to members of the Church of
Scientology for payments they had made for the Church “sacraments” of auditing and
training. The charitable deduction, the Court said, was only available for genuine
gifts, not for “payments made in return for goods or services” such as the payments
for auditing and training. It said the tax code provision was neutral on its face, was
not “born of animus to religion in general or Scientology in particular,” did not have
a primary effect of either advancing or inhibiting religion, and required only “routine
regulatory interaction” between government and religious organizations.
Moreover, while finding no constitutional barriers to the imposition of taxes on
religious organizations and individuals, the Court in one decision found the
establishment clause to bar an exemption from taxation for a religious entity. In
Texas v. Bullock283 the Court held unconstitutional, 6-3, a Texas statute that
exempted from the state’s sales and use taxes only those periodicals and books that
promoted the teachings of a religious faith. Although the Justices articulated several
different rationales for this conclusion, a majority appeared to agree that the
establishment clause means “not only that government may not be overtly hostile to
religion but also that it may not place its prestige, coercive authority, or resources
behind a single religious faith or behind religious belief in general, compelling
nonadherents to support the practices or proselytizing of favored religious
organizations and conveying the message that those who do not contribute gladly are
less than full members of the community.”284 To avoid the establishment clause flaw
of appearing to sponsor or give preferential support to religious belief, a majority
held, a tax benefit cannot be confined just to religious organizations but must flow
to a broad class of beneficiaries.
Three other tax cases the Court resolved on statutory grounds without
addressing any constitutional issues. Two involved the Federal Unemployment Tax
Act (FUTA),285 which requires employers to contribute to state unemployment
insurance funds; and both involved a provision of the Act which exempts from
coverage “(A) a church or convention or association of churches, or (B) an
organization which is operated primarily for religious purposes and which is
operated, supervised, controlled, or principally supported by a church or convention
or association of churches.”286 The Secretary of Labor construed the legislative
history of recent amendments to FUTA to mean that church-related primary and
secondary schools were no longer exempted from FUTA by that provision and thus
were subject to the FUTA tax. But in St. Martin Evangelical Lutheran Church v.
South Dakota287 the Court held that construction of the Act and its legislative history
to be invalid. “The only reasonable construction of 26 U.S.C. §3309(b)(1),” the
282 490 U.S. 680 (1989).
283 489 U.S. 1 (1989).
284 Id. at 9.
285 26 U.S.C. 3301-3311 (1988).
286 26 U.S.C. 3309(b) (1988).
287 451 U.S. 772 (1981).
Court stated, “is one that exempts petitioners’ church-run schools, and others
similarly operated, from mandatory state coverage.”288 Subsequently, in California
v. Grace Brethren Church289 the Court refused to reach the question of whether the
imposition of FUTA taxes on religious schools not affiliated with any church
violated the establishment clause, for the reason that the federal district court lacked
jurisdiction to decide that issue. The Court held that the Tax Injunction Act,290 which
generally bars the federal courts from enjoining the collection of state taxes where
“a plain, speedy, and efficient remedy may be had in the courts of such State,”
applied to the case, and that therefore the lower court should not have reached the
Finally, in Davis v. United States291 the Court unanimously construed the tax
code not to permit the parents of two Mormon missionaries to deduct the support
they provided their sons to enable them to serve as missionaries. The parents argued
that their support constituted either charitable contributions in themselves or
unreimbursed expenditures incurred in the course of their sons’ contributions of
services to the Mormon Church and thus should be deductible under § 170 of the
Internal Revenue Code.292 But the Court held that their support did not constitute a
charitable contribution, because it was not given in any legally enforceable way for
the benefit of the Church, and that they could not claim a deduction for expenses
incurred in the course of a third party’s contribution of services.
(f) Other Decisions. Of the remaining five church-state decisions by the
Court since 1980, only one was decided on the merits. In that case, Tony and Susan
Alamo Foundation v. Secretary of Labor,293 the Court unanimously upheld as
constitutional the application of the minimum wage and overtime provisions of the
Fair Labor Standards Act294 to employees who worked in various commercial
enterprises operated by a religious organization. The Court found no exception in the
Act for the commercial activities of religious or other nonprofit organizations and
held the application of the FLSA to be “fully consistent with the requirements of the
First Amendment.” Application of the FLSA neither infringed on the employees’
religious convictions that they should not be paid wages for their work, the Court
said, nor did its record keeping requirements foster any excessive entanglement.
“[T]he routine and factual inquiries required by §211(c) bear no resemblance,” the
Court stated, “to the kind of government surveillance the Court has previously held
to pose an intolerable risk of government entanglement with religion.”295
288 Id. at 781.
289 457 U.S. 393 (1982).
290 28 U.S.C. 1341 (1988).
291 495 U.S. 472 (1990).
292 26 U.S.C. 170 (1988).
293 471 U.S. 290 (1985).
294 29 U.S.C. 201 et seq. (1988).
295 471 U.S. at 305.
Two of the other cases were decided on standing grounds. In a critically
important decision for the Catholic Church, the Court in United States Catholic
Conference v. Abortion Rights Mobilization, Inc.296 held that two institutions of the
Church that had been held in civil contempt for refusing to comply with discovery
orders in a suit challenging their tax-exempt status could, even though they were non-
parties to the suit, challenge the plaintiffs’ standing to institute the suit. Originally
filed in 1981, the suit sought an injunction directing the IRS to revoke the tax exempt
status of the United States Catholic Conference and the National Conference of
Catholic Bishops on the grounds their political activities with respect to abortion
violated § 501(c)(3) of the Internal Revenue Code.297 The two bodies had been held
in civil contempt by the district court when they refused to comply with subpoenas
from ARM seeking evidence of their activities regarding abortion, and the lower
courts had refused to allow them to challenge ARM’s standing to institute the suit in
contesting the contempt citation. The Supreme Court reversed and held, 8-1, that
they could do so, stating that “the subpoena power of a court cannot be more
extensive than its jurisdiction.” (On remand, a federal appellate court brought this
threat to the tax-exempt status of the Catholic Church to an end by holding that ARM
did not have standing and dismissing the suit.298)
In Valley Forge Christian College v. Americans United for Separation of
Church and State299 the Court refused, 5-4, to broaden the doctrine of standing to
permit the disposition of surplus government property to a sectarian institution to be
challenged on establishment clause grounds. The transaction of concern in this case
was the disposition by the Department of Education of land and buildings worth
more than a half million dollars to an avowedly sectarian college, without charge.
The Court had previously held that taxpayers have standing to challenge exercises of
Congressional power under the taxing and spending clause of Article I, § 8, of the
Constitution that allegedly violate the establishment clause.300 But in this case it
described that exception to the general rule against taxpayer suits as a narrow one and
said it did not apply in this instance, because the action in question was an executive
one rather than a Congressional one and because the authorizing legislation was an
exercise of Congress’ power under the property clause of Article IV of the
Constitution rather than of the taxing and spending power of Article I.
The final two cases both involved civil rights but were dismissed for
jurisdictional reasons. In Ohio Civil Rights Commission v. Dayton Christian
296 487 U.S. 72 (1988).
297 26 U.S.C. 501(c)(3) exempts from taxation groups “organized and operated exclusively
for religious, charitable,...or educational purposes, ...no substantial part of the activities of
which is carrying on propaganda, or otherwise attempting, to influence legislation..., and
which does not participate in, or intervene in..., any political campaign on behalf of any
candidate for public office.”
298 Abortion Rights Mobilization, Inc. v. United States Catholic Conference, 885 F.2d 1020
(2d Cir., 1989), cert. den., 495 U.S. 918 (1990).
299 454 U.S. 464 (1982).
300 Flast v. Cohen, 392 U.S. 83 (1968).
Schools, Inc.301 the Court unanimously held that the federal courts could not
adjudicate a conflict between a state civil rights statute and a private school’s
religious belief and practice prior to the resolution of that conflict by the state civil
rights agency. At issue was a conflict between the sex nondiscrimination
requirements of an Ohio statute302 and the nonrenewal by a private Christian school
of the contract of a teacher who had become pregnant, pursuant to the school’s
religious belief that mothers of preschool children should remain at home. A lower
federal appellate court had enjoined the investigation and resolution of the matter by
the Ohio Civil Rights Commission on the grounds that the Commission’s efforts
would violate the First Amendment. But the Supreme Court held that the lower
courts should have abstained from deciding that issue. Younger v. Harris,303 the
Court said, established the rule that federal courts should not enjoin pending state
proceedings except in “extraordinary circumstances,” both as a matter of comity and
out of a “proper respect for the fundamental role of States in our federal system.”
The school would have ample opportunity to air its constitutional concerns, the Court
said, in the judicial review of the Commission’s decisions authorized by the Ohio
Finally, in Equal Employment Opportunity Commission v. Arabian American
Oil Company304 the Court held that the employment nondiscrimination requirements
of Title VII of the Civil Rights Act of 1964 do not apply to United States employers
outside the United States. A naturalized U.S. citizen claimed that he had been fired
by the Arabian American Oil Company in Saudi Arabia for reasons of race, religion,
and national origin, in violation of Title VII. But the Court held that Title VII could
apply extraterritorially only if Congress had affirmatively expressed its intention that
it do so, and it found the evidence that Congress had so intended “insufficient.” As
a consequence, it affirmed the lower courts’ rulings dismissing the case for lack of
In his Memorial and Remonstrance Against Religious Assessments, James
Madison in 1785 warned of the danger that lurked if questions of religious liberty
became “entangled ... in precedents.”305 Yet in the modern United States, where the
expansive claims and powers of government conflict virtually daily with the
requirements and expectations of one or another religious faith, that is exactly what
has happened. The religion clauses, perhaps inevitably, have become the subject of
thousands of judicial precedents.
301 477 U.S. 619 (1986).
302 Ohio Rev. Code Ann. 4112.01(A) (Supp. 1985).
303 401 U.S. 37 (1971).
304 499 U.S. 244 (1991).
305 Madison, James, Memorial and Remonstrance Against Religious Assessments, par. 3,
reprinted as an Appendix to Everson v. Board of Education, 330 U.S. at 63.
Whether that fact poses a danger to religious liberty is a matter of opinion.
What is clear is that on the Supreme Court the struggle over the meaning and scope
of the religion clauses has become both persistent and intense. On the one hand
stands the view that “a union of government and religion tends to destroy government
and to degrade religion,”306 and that a “wall of separation” best serves the interests
of both. On the other hand stands the perspective that the relationship of government
and religion should be predominantly a legislative matter rather than one subject to
sweeping constitutional constraints and that government should be able, in a neutral
and nondiscriminatory manner, both to regulate religious practices and to
accommodate and even assist religious groups. Since 1980 the latter perspective has
come to predominate with respect to the free exercise clause, and it has made
substantial inroads with respect to the Court’s establishment clause jurisprudence as
It seems likely that the ferment on the Court over the religion clauses will persist
for some time. Only two of the Justices that sat on the Court at the beginning of the
1980s remain — Chief Justice Rehnquist and Justice Stevens, and they are polar
opposites on the interpretation of the religion clauses. But the new Justices, like
many of their predecessors, either have, or are developing, strong views on the
meaning of the clauses. Thus, the debate seems certain to continue, and likely with
306 Engel v. Vitale, 370 U.S. at 431.
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