Roemer v. Board of Public Works of Md.

Mr. Justice White,

with whom Mr. Justice Rehnquist joins, concurring in the judgment.

While I join in the judgment of the Court, I am unable to concur in the plurality opinion substantially for the reasons set forth in my opinions in Lemon v. *768 Kurtzman, 403 U. S. 602 (1971) (Lemon I), and Committee for Public Education v. Nyquist, 413 U. S. 756 (1973). I am no more reconciled now to Lemon I than I was when it was decided. See Nyquist, supra, at 820 (White, J., dissenting). The threefold test of Lemon I imposes unnecessary, and, as I believe today’s plurality opinion demonstrates, superfluous tests for establishing “when the State’s involvement with religion passes the peril point” for First Amendment purposes. Id., at 822 .

“It is enough for me that the [State is] financing a separable secular function of overriding importance in order to sustain the legislation here challenged.” Lemon I, supra, at 664 (opinion of White, J.). As long as there is a secular legislative purpose, and as long as the primary effect of the legislation is neither to advance nor inhibit religion, I see no reason — particularly in light of the “sparse language of the Establishment Clause,” Committee for Public Education v. Nyquist, supra, at 820—to take the constitutional inquiry further. See Lemon I, supra, at 661 (opinion of White, J.); Nyquist, supra, at 813 (White, J., dissenting). However, since 1970, the Court has added a third element to the inquiry: whether there is “an excessive government entanglement with religion.” Walz v. Tax Comm’n, 397 U. S. 664, 674 (1970). I have never understood the constitutional foundation for this added element; it is at once both insolubly paradoxical, see Lemon I, supra, at *769 668, and — as the Court has conceded from the outset — a “blurred, indistinct, and variable barrier.” Lemon I, supra, at 614. It is not clear that the “weight and contours of entanglement as a separate constitutional criterion,” Nyquist, supra, at 822 , are any more settled now than when they first surfaced. Today's plurality opinion leaves the impression that the criterion really may not be “separate” at all. In affirming the District Court’s conclusion that the legislation here does not create an “excessive entanglement” of church and state, the plurality emphasizes with approval that “the District Court gave dominant importance to the character of the aided institutions and to its finding that they are capable of separating secular and religious functions.” Ante, at 766. Yet these are the same factors upon which the plurality focuses in concluding that the Maryland legislation satisfies the second part of the Lemon I test: that on the record the “appellee colleges are not ‘pervasively sectarian,’ ” ante, at 755, and that the aid at issue was capable of, and is in fact, extended only to “ ‘the secular side’ ” of the appellee colleges’ operations. Ante, at 759. It is unclear to me how the first and third parts of the Lemon I test are substantially different. * The “excessive entanglement” test appears no less “curious and mystifying” than when it was first announced. Lemon I, supra, at 666.

I see no reason to indulge in the redundant exercise of evaluating the same facts and findings under a different label. No one in this case challenges the District *770 Court’s finding that the purpose of the legislation here is secular. Ante, at 754. And I do not disagree with the plurality that the primary effect of the aid program is not advancement of religion. That is enough in my view to sustain the aid programs against constitutional challenge, and I would say no more.

Our prior cases demonstrate that the question of whether aid programs satisfy the “excessive entanglement” test depends at least to some extent on the degree to which the Court accepts lower courts’ findings of fact. Cf., e. g., Lemon I, 403 U. S., at 665-667 (opinion of White, J.); Meek v. Pittenger, 421 U. S. 349, 392 (1975) (opinion of Rehnquist, J.).