Amicus Curiae Brief — Agostini v. Felton

Supreme vourt, US. |

(is) FILED

Nos. 96-552 and 96-553 FEB 28 1997

Supreme Court of the a

OCTOBER TERM, 1996

RACHEL AGOSTINI, ef ai.,

Petitioners,

v.

BETTY-LOUISE FELTON, ef al.,

Respondents.

CHANCELLOR OF THE BOARD OF EDUCATION

OF THE CiTy OF NEW YORK, ef ai.,

Petitioners,

Vv.

BETTY-LOUISE FELTON, ef ai.,

Respondents.

On Wnit of Certiorari To The United States

Court Of Appeals For The Second Circuit

BRIEF AMICUS CURIAE OF

UNITED STATES SENATOR ROBERT F. BENNETT

IN SUPPORT OF PETITIONERS

FREDERICK MARK GEDICKS RONALD D. MAINES

1338 East 660 North (Counsel of Record)

Orem, UT 84097 R. SHAWN GUNNARSON

(801) 224-8614 Maines & Logs, PLLC

2300 M Street, N.W., Suite 900

Washington, D.C. 20037

(202) 223-2817

Attomeys for Amicus Curiae

7

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TABLE OF CONTENTS

ey ee oc co kccsccccvcbeet ii

INTEREST OF AMICUS CURIAE ................... l

SUMMARY OF ARGUMENT ...................... 2

ST trU etch cele ren’ 6h ohana ® rc eels bess 4

I. THE THREE-PRONGED TEST OF LEMON V.

KURTZMAN WAS DESIGNED TO PROTECT

RELIGIOUS VOLUNTARISM, NOT TO PROHIBIT

ALL GOVERNMENT AID TO RELIGION OR TO

ENFORCE THE SEPARATION OF CHURCH AND

STATE AS AN INDEPENDENT VALUE ....... 4

Il. "ENTANGLEMENT" ANALYSIS THREATENS

RELIGIOUS VOLUNTARISM AND OTHER

FUNDAMENTAL CONSTITUTIONAL VALUES

WITHOUT OFFERING ANY COMPENSATING

PE on cac'ub adc cccp lbeeosdve Jo+> 13

Il. THIS CASE ILLUSTRATES THE DANGER AND

REDUNDANCY OF APPLYING ENTANGLEMENT

AS A DISTINCT TEST OF CONSTITUTIONALITY

UNDER THE ESTABLISHMENT CLAUSE .... 26

a PATTER oa eee Pee. 4 eikes ack 28

TABLE OF AUTHORITIES

CASES:

Abington School District v. Schempp,

S74 U.S. BEB CRG) wc ccnconcenccciesunen ne 6

Aguilar v. Felton, 473 U.S. 402 (1985) ........... passim

Board of Education v. Grumet,

ee ree 13, 19, 23

Bowen v. Kendrick, 487 U.S. 589 (1988) ........... 12, 25

Church of the Lakumi Babylu Aye, Inc.

v. City of Hialeah, 508 U.S. 520 (1993) ........... 5, 20

Committee for Public Education v.

Nyquist, 413 U.S. 756 (1973) ................. passim

Committee for Public Education v. Regan,

GAUSS. CGD oickivcctVerectiectleaeeenn 11

Corporation of the Presiding Bishop v. Amos,

403 US. BSF GGA) oo cide cctachedeaaeeee 14, 1°

Employment Division v. Smith, 494 U.S. 872 (1990) .

Engel v. Vitale, 370 U.S. 421 (1962) ............. 4

Board of Education v. Allen,

S9e UE, SOOM ce cesveccéivcetctuetn 7, 9, 10, 13

Lemon v. Kurtzman, 403 U.S. 602 (1971) ......... passim

Everson v. Board of Education,

SOOUS, bGHGUP cadet cisuks Jochateseeee 5, 6, 9, 13

Grand Rapids School District v. Ball,

4V3 UB. TEPC osc Vous bdecdcudls An passim

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

Lamb's Chapel v. Center Moriches

School District, 508 U.S. 384 (1993) ............... 21

Larkin v. Grendel's Den, 459 U.S. 116 (1982) ......... 23

Larson v. Valente, 456 U.S. 228 (1982) ........... 20, 23

Leavitt v. Committee for Public Education,

S13 U.S. GESGIWED os sb benudeieheeksiee vee 18

Lynch v. Donnelly, 465 U.S. 668 (1984) ........... 14, 15

—~—

-ili-

McDaniel v. Paty, 435 U.S. 618 (1978) ............ 20, 22

Meek v. Pittenger, 421 U.S. 349(1975) .......... passim

Mueller v. Allen, 463 U.S. 388 (1983) ........... 9, 10, 14

Rectors of the University of Va. v. Rosenberger,

EEE ES TTT ET 21

Roemer v. Maryland Board Public Works,

EE SES ITT 11, 12, 25

Tilton v. Richardson, 403 U.S. 672 (1971) ............ 12

United States v. Carolene Products, 304 U.S. 144 (1938) . 20

Walz v. Tax Commission, 397 U.S. 664 (1970) ..... passim

Westside Committee School District

v. Mergens, 496 U.S. 226 (1990) ...... Eh. cde det cd 21

Widmar v. Vincent, 454 U.S. 263 (1981) .............. 21

Witters v. Department of Services

for the Blind, 474 U.S. 481 (1986) .................. 9

Wolman v. Walter, 433 U.S. 229 (1977) ........... 10, 26

Zobrest v. Catalina Hills School District,

ER 9,13

Zorach v. Clauson, 343 U.S. 306 (1952) .......... 4,7, 15

OTHER AUTHORITIES:

Carl H. &sbeck, A Restatement of the Supreme Court's Law

of Religious Freedom: Coherence, Conflict, or Chaos?,

70 NOTRE DAME L. REV. 581 (1995) ................ 16

Donald A. Giannella, Religious Liberty, Nonestablishment,

and Doctrinal Development Part II: The Nonestablish-

ment Principle, 81 HARV. L. REV. 513 (1968) ..... passim

Donald A. Gianella, Lemon and Tilton: The Bitter

and Sweet of Church-State Entanglement, 1971 Sup.

IE DC SUUWEGE UWS ccc ccc ccc cece 19

39 DEPAUL L. REV. 993 (1990) ................ 4, 5, 16

-Iv-

Edward McGlynn Gaffney, Political Divisions Along

Religious Lines: The Entanglement of the Court In

Sloppy History and Bad Publ: Policy, 24 St.

EGU, UE. Bee 0 ok oc bab cde ewes we WE len 13, 22

Gary J. Simson, The Establishment Clause In the Supreme

Court: Rethinking the Court's Approach, 72 CORNELL

RK Rt ae oy eee 26, 27

Jesse Choper, The Religion Clauses of the First

Amendment: Reconciling the Conflict,

41 U. Pit. L. REV. 673 (1980) ................. 20, 2?

John Garvey, Another Way of Looking at School Aid,

EE ee eee Or eee ee 25

John Valauri, The Concept of Neutrality in

Establishment Clause Doctrine, 48 U. Prrt.

Rn Bs PEED -n Cueuieebwene be Ub. cic ceeds 16

Kenneth F. Ripple, 7he Entanglement Test of

the Religion Clauses A Ten Year Assessment,

27 UCLAL. REV. 1195 (1980) ................ passim

Marc Galanter, Religious Freedoms in the

United States: A Turning Point? , 1966

CLE dia ck nema bod ccdececeus 17

Michael A. Paulsen, Religion, Equality, and the

Constitution: An Equal Protection Approach to

Establishment Clause Adjudication, 61 NOTRE

ee eee passim

Michael W. McConnell, Religious Freedom at

a Crossroads, 59 U. CHI. L. REV. 115(1992) ......... 19

Michael W. McConnell & Richard Posner,

An Economic Approach to Issues of Religious

Freedom, 56 U. CHI. L. REV. 1 (1989) .......... 5, 16, 17

Peter Schotten, The Establishment Clause and Excessive

Governmental-Religious Entanglement: The Constitutional

Status of Aid to Nonpublic Elementary and Secondary

Schools, WAKE FOREST L. REV. 207 (1979) ..... 23, 24, 25

-V-

Phillip E. Johnson, Concepts and Compromise in First

Amendment Religious Doctrine, 72 CALIF. L. REV

SEVER on ewe there weriecc ccc cesses: 17, 18

Thomas Berg, Religion Clause Anti-Theories, 72

NOTRE DAME L. REV. 695 (forthcoming March 1997) ....4

William P. Marshall, “We Know It When We See

It”: The Supreme Court and Establishment,

59 S. CAL. L. REV. 495 (1986) ......... 2... 6-5-0 ee 25

Supreme Court of the United States

OCTOBER TERM, 1996

Nos. 96-552 and 96-553

RACHEL AGOSTINI, ef al.,

Petitioners,

Vv.

BETTY-LOUISE FELTON, ef ai.,

Respondents.

CHANCELLOR OF THE BOARD OF EDUCATION

OF THE CITy OF NEW YORK, ef ai.,

Petitioners,

Vv.

BETTY-LOUISE FELTON, ef ai,

Respondents.

On Writ of Certiorari To The United States

Court Of Appeals For The Second Circuit

BRIEF AMICUS CURIAE OF

UNITED STATES SENATOR ROBERT F. BENNETT

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE

Pursuant to Rule 37.3 of this Court, Senator Robert F. Bennett

submits this brief amicus curiae in support of Petitioners.

Consent to the filing of this brief has been granted by all parties.

Copies of the letters of consent have been lodged with the Clerk.

2.

future direction of Establishment Clause jurisprudence. As a

Member of the United States Senate, Senator Bennett has a keen

interest in the evolution of legal doctrine that affects the rights of

religious individuals and religious institutions in American

society. We believe this perspective will complement the briefs

of the parties and assist the Court in the proper resolution of this

case.

SUMMARY OF ARGUMENT

Although Lemon v. Kurtzman today stands as a controversial

symbol of government hostility to religion, its three conceptual

prongs were not intended to prohibit government aid to religion

or to enforce the separation of church and state. Rather, ti’:

analytical framework was designed to protect “religious

voluntarism” — the idea that individual religious choice should be

insulated from the influence of noncoercive government action

that encourages or discourages religious belief or activity.

“Secular purpose” and “primarily secular effect,” for example,

were well established doctrinal elements of Establishment Clause

jurisprudence prior to Lemon, and were consistently applied to

protect religious voluntarism. In the single pre-Lemon decision

in which it was used; the relatively new concept of

“entanglement” was likewise employed to protect religion from

government, not government from religion. Even the Court’s

post-Lemon decisions permit substantial financial and in-kind aid

to religion so long as such aid does not bias the choice between

religion and nonreligion.

independent constitutional value that has calcified the division

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voluntarism. The consequences of this doctrine gone awry are

gravely disturbing. Entanglement is routinely used to deny

religious individuals and organizations equal access to social

benefits in violation of the religious neutrality otherwise

mandated by the Court’s Establishment Clause jurisprudence.

exacerbates the tension between the Free Exercise

and Establishment Clauses by casting doubt on the legitimacy of

exemptions obtained by individuals and organizations through the

political process. Moreover, entanglement ironically leads to

discrimination on the basis of religion in violation of the Equal

Protection Clause of the Fourteenth Amendment. Finally,

entanglement deprives religious individuals and organizations of

fund | political and iational rights 1 by the

First Amendment.

The tragedy in all of this is that entanglement analysis has such

merely mimics the protection of religious voluntarism offered by

the purpose and effect prongs of Lemon. It avoids analytic

redundancy only by relying on caricatures of religious schools

that are frequently unsupported by the factual record, and

engaging in standardless judgments based on hypothetical facts.

The case at bar vividly illustrates the dangers of applying

entanglement as a test of Establishment Clause constitutionality

independent of religious voluntarism. In light of its deficiencies,

the entanglement prong should be dropped as a test of

constitutionality under the Establishment Clause.

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ARGUMENT

I. THE THREE-PRONGED TEST OF LEMON JV.

KURTZMAN WAS DESIGNED TO PROTECT RELI-

GIOUS VOLUNTARISM, NOT TO PROHIBIT ALL

GOVERNMENT AID TO RELIGION OR TO ENFORCE

THE SEPARATION OF CHURCH AND STATE AS AN

INDEPENDENT VALUE.

Religious voluntarism is the principle that the popularity and

vitality of any religious activity should depend on the intrinsic

attractions of the activity to its adherents, and not on the extrinsic

effects of government encouragement or opposition. Donald A.

Giannella, Religious Liberty, Nonestablishment, and Doctrinal

Development—Part II: The Nonestablishment Principle, 81

HARV. L. REV. 513, 517 (1968). A doctrinal regime committed

to religious voluntarism seeks to “minimize the effect

[governmestt] has on the voluntary, independent religious

decisions of the people as individuals and in voluntary gro:

Thomas Berg, Religion Clause Anti-Theories, 72 NOTRE 1) AN:

L. REV. 695, 706 (forthcoming March 1997); accord, Douglas

Laycock, Formal, Substantive, and Disaggregated Neutrality

Toward Religion, 39 DEPAUL L. REV. 993, 1001 (1990).

This Court has long recognized that religious voluntarism is the

fundamental purpose of the religion clauses.' A commitment to

' See, e.g., Walz v. Tax Comm'n, 397 U.S. 664, 669 (1970) (The purpose of

the religion clauses “is to insure that no religion be sponsored or favored, none

commanded, and none inhibited.”); Zorach v. Clauson, 343 U.S. 306 (1952)

(“We sponsor an attitude on the part of government that shows no partiality to

any one [religious] group and that lets each flourish according to the zeal of its

adherents and the appeal of its dogma.”); Engel v. Vitale, 370 U.S. 421, 429

(1962) (“[E)ach separate government in this country should stay out of the

business of writing or sanctioning official prayers and leave that purely religious

function to the people themselves and to those the people choose to look to for

religious choices of its citizens,’ because “neutrality reduces (and

in theory eliminates) the impact that governmental action has

upon individual choice with respect to religion.” Michael W.

McConnell & Richard Posner, An Economic Approach to Issues

of Religious Freedom, 56 U. CHI. L. REV. 1, 11 (1989); see also

Walz, 397 U.S. at 696 (Harlan, J., concurring) (Government

action that “neither encourages nor discourages religion . . .

satisfies the voluntarism requirement of the First Amendment.”).

Religious voluntarism is violated by government persuasion as

much as by government coercion. Douglas Laycock, Formal,

Substantive, and Disaggregated Neutrality Toward Religion, 39

purposeful religious coercion by government, see, e.g., Church

of the Lakumi Babylu Aye, Inc. v. City of Hialeah, 508 U.S. 520

(1993), the Establishment Clause protects these choices from

government actions that have the purpose or primary effect of

encouraging or discouraging religion, even when the government

has not used its coercive power directly to mandate or to prohibit

religious belief or practice. Engel v. Vitale, 370 U.S. 421, 430-

31 (1962).

A. Prior to their incorporation into the Lemon test, "secular

purpose” and “primarily secular effect" were well-estab-

lished doctrinal tests meant to protect religious

voluntarism.

religious guidance.”).

2 See, e.g., Grand Rapids School Dist. v. Ball, 473 U.S. 373, 382 (1985),

Everson v. Board of Educ., 330 U.S. 1, 14-15, 15-16 (1947).

,%

Although Lemon v. Kurtzman was the first decision of the

Court to combine secular purpose, primarily secular effect, and

entanglement into a single test, see 403 U.S. 602, 612-13 (1971),

only entanglement was a new analytical concept, having been

articulated just the preceding Term. Walz v. Tax Comm'n, 397

U.S. 664, 674 (1970). By contrast, a full eight years before

Lemon, the Court had synthesized its entire body of

Establishment Clause precedent since Everson into the

requirement that government action have “a secular legislative

purpose and a primary effect that neither advances nor inhibits

religion.” Abington School Dist. v. Schempp, 374 U.S. 203, 222

(1963) (citing McGowan v. Maryland, 366 U.S. 420, 442 (1961);

Everson v. Board of Educ., 330 U.S. 1 (1947). Board of Educa-

tion v. Allen approved Schempp's test of constitutionality under

the Establishment Clause, 392 U.S. 236, 242-43 (1968), and

Lemon cited Allen as authority for adopting purpose and effect

as two of its three doctrinal prongs. See Lemon v. Kurtzman, 403

U.S. 602, 612 (1971).

1. Prior to Lemon, secular purpose and primarily secular

effect were consistently applied to insulate individual

religious choice from the influence of noncoercive gov-

ernment action.

The three pre-Lemon decisions that found violations of the

Establishment Clause all involved public school programs which

encouraged but did not require student participation in religious

teaching or practice. In McCollum v. Board of Education, the

their faith. 333 U.S. 203, 209-10 (1948). In Engel v. Vitale, the

Court found that classroom recitation of a state-authored prayer

-7-

at the beginning of each school day was “wholly inconsistent”

with the Establishment Clause, even though students could

choose not to participate. 370 U.S. at 421, 423 & n2, 430.

“The First Amendment was added to the Constitution to stand as

a guarantee that neither the power nor the prestige of the Federal

Government would be used to control, support or influence the

kinds of prayer the American public can say... .” Jd. at 429. In

Abington School District v. Schempp, the Court invalidated

formal classroom recitations from the Bible, again deeming it

irrelevant that students were excused from participating in the

exercises. 374 U.S. 203, 223-25 (1963). The Court found that

even in the absence of direct coercion, Bible reading could not

plausibly be characterized as having a primarily secular effect that

neither aided nor opposed religion. /d. at 223.

Decisions of the Court upholding programs of assistance to

religion prior to Lemon were also principally concerned with

preserving religious voluntarism. See, e.g., Board of Education

v. Allen, 392 U.S. 236, 243-44 (1968) (textbook loan program

Establishment Clause because books were provided free of

charge to all students upon their request, regardless of the public,

private, or religious character of their schools); Zorach v.

Clauson, 343 U.S. 306, 313 (1952) (state authorization of

voluntary off-campus released-time religious instruction was

merely permissible state cooperation “in a religious program to

the extent of making it possible for . . . students to participate in

it.”).

2. The single pre-Lemon decision that employed the concept

of entanglement likewise focused on the protection of

individual religious choice from noncoercive government

action.

-8-

Walz v. Tax Commission held that property tax exemptions for

churches were consistent with the Establishment Clause because

exemptions minimized church-state “entanglement”— that is, the

government interference in religious practice tha: would

inevitably result from “tax valuation of church property, tax liens,

tax foreclosures, and the direct confrontations and conflicts that

follow in the train of these legal processes.” 397 U.S. 664, 674

(1970). The chief rationale was the curtailment of religious

liberty that historically has accompanied taxation of churches. Jd.

at 673. In Walz, entanglement was envisaged as preventing

government's use of the “regulatory strings attached to powerful

financial benefits” to exercise control over a religious group's

“beliefs, policies, or actions.” Michael A. Paulsen, Religion,

Equality, and the Constitution: An Equal Protection Approach

to Establishment Clause Adjudication, 61 NOTRE DAME L. REY

311, 346 (1986).

C. The Court's post-Lemon decisions permit substantia:

financial and in-kind aid to religion so long as such aid

does not bias the choice between secular public schools

and private religious schools.

1. Indirect aid to religious schools and other “pervasively

sectarian” institutions is permissible if directed to students

and their parents pursuant to broad, secularly defined

benefit categories.

The Court has long presumed that religious elementary and

secondary schools exist primarily to inculcate their students with

the beliefs of the sponsoring faith, and thus that the sponsor’s

religious beliefs and practices pervade every aspect of the

schools’ activities. See, e.g., Grand Rapids School Dist. v. Ball,

473 U.S. 373, 379 (1985); Meek v. Pittenger, 421 U.S. 349, 366

(1975); Lemon v. Kurtzman, 403 U.S. 602, 613, 615-16, 620

(1971). Accordingly, the Court has generally held that financial

-9-

or in-kind aid given directly to religious schools and other such

“pervasively sectarian” institutions advances religion in violation

of Lemon's primary secular effect prong. See, e.g., Grand

Rapids, 473 U.S. at 385; Meek, 421 U.S. at 366, Committee for

Pub. Educ. v. Nyquist, 413 U.S. 756, 779-80 (1973). By

contrast, when aid is given directly to religious school students or

their parents pursuant to broad, secularly defined classes, the

Court has generally found no Establishment Clause violation.

See, e.g., Zobrest v. Catalina Hills School Dist., 509 U.S. 1

(1993); Mueller v. Allen, 463 U.S. 388 (1983); Board of Educ.

v. Allen, 392 U.S. 236 (1968); Everson v. Board of Educ., 330

U.S. 1 (1947); cf. Witters v. Dept. of Servs. for the Blind, 474

U.S. 481 (1986) (declining to invalidate state vocational

rehabilitation assistance used by a visually handicapped student

to study for the ministry at a Bible college).

Even though aid to students and parents obviously assists any

religious school which the students might attend, the Court’s

opinions make clear that such aid does not result in a primary

effect of advancing religion, because the aid is received by

religious schools only as the result of the individual religious

choices of students and parents. See, e.g., Zobrest, 509 U.S. at

10, 13-14; Mueller v. Allen, 463 U.S. 388, 399-400 (1983); cf

Witters, 474 U.S. at 487, 488 (when recipient of state vocational

rehabilitation assistance chooses to study for ministry at Bible

college, the college benefits only as the result of the recipient's

religious choice).

In sum, although financial and in-kind assistance to students

attending private religious schools benefit these schools, such

assistance does not violate the Establishment Clause because the

schools receive the benefits only as individual recipients choose

to attend them. In these circumstances, financial or in-kind aid

funds the private choices of individuals (including religious

individuals), and only incidentally the educational institutions

-10-

(including religious schools) that are the beneficiaries of these

choices. See Donald A. Giannella, Religious Liberty,

Nonestablishment, and Doctrinal Development—Part II: The

Nonestablishment Principle, 81 HARV. L. REV. 513, 585 (1968).

As demanded by religious voluntarism, this ensures that religious

schools and other pervasively sectarian institutions in the United

States exist as the consequence of the private choices of religious

individuals rather than the collective choices of government.

2. Direct aid to religious schools and other pervasively

sectarian institutions is permissible so long as there is no

possibility that such aid could be diverted to encourave

religious belief or practices.

Although the Court regularly emphasizes the importance o:

individual-institutional distinction to the constitutionality or

religious school aid programs, e.g., Mueller v. Allen, 463 U.S.

388, 399 (1983); Committee for Pub. Educ. v. Nyquist, 413 U.S.

‘756, 780-81 (1973); Lemon v. Kurtzman, 403 U.S. 602, 621

(1971); Board of Educ. v. Allen, 392 U.S. 236, 243-44 (1968),

it nevertheless has upheld both cash and in-kind assistance given

directly to religious schools when there is no possibility that the

aid could be used to promote religious belief or practice.

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

other programs, a state's practice of administering and grading

required achievement tests free of charge for religious school

students. The Court held that since the religious schools

controlled neither the content of these tests nor their results, the

tests could not be used to teach religion in violation of the

primary effect prong; and that, correspondingly, there was no

need for close government monitoring of religious school

teaching that would violate the entanglement prong. Jd at 240-

41.

-ll-

In Committee for Public Education v. Regan, 444 U.S. 646

(1980), the Court even upheld cash reimbursements to religious

schools for expenses incurred in using their own employees to

concluded that these tests could not be used to teach religion

because state employees prepared them and the objective nature

of the test questions ensured that religious considerations would

not influence grading. Regan, 444 U.S. at 654-56 (quoting

Wolman v. Walter, 433 U.S. 229, 240 (1977)). The Court

mandated by the program would ensure that reimbursements

were made only for secular services, and that these requirements

did not constitute an excessive entanglement of the state with

religious schools. 444 U.S. at 659-61.

3. Direct aid to religious colleges and other "nonpervasive"

religious institutions is permissible when it is part of a

secular social welfare program.

In religiously sponsored colleges the secular goal of teaching

critical thinking by secular academic methods is thought to

practices. See Roemer, 426 U.S. at 750, 751 (plurality opinion);

Tilton v. Richardson, 403 U.S. 672, 681-82 (1971) (plurality

opinion). Additionally, the relative age and maturity of college

students compared to students in elementary and secondary

schools makes it unlikely that college students will be

encouraged by a religious college. See Roemer v. Maryland Bd.

Pub. Works, 426 U.S. 736, 750 (1976) (plurality opinion), Tilton,

403 U.S. at 685-86 (plurality opinion). For doth of these

reasons, the Court has concluded that, in contrast to religious

elementary and secondary schools, religious colleges are generally

not “pervasively sectarian." Roemer, 426 U.S. at 758-59

(plurality opinion); Tilton, 403 U.S. at 681, 687 (plurality

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opinion). See also Bowen v. Kendrick, 487 U.S. 589, 610-11

(1988) (Adolescent Family Life Act did not facially violate

Establishment Clause by permitting grants to religiously

when only a small percentage of eligible grant recipients were

likely to be “pervasively sectarian.”

In upholding the constitutionality of financial aid to religious

colleges, the Court emphasized the pervasiveness of government

aid in contemporary society. See, e.g., Roemer, 426 U.S. at 745

(plurality opinion). If most colleges are receiving government

aid, neutrality does not require that otherwise eligible religious

colleges be denied aid solely because of their religious affiliation.’

* Roemer, 426 U.S. at 747 (plurality opinion); of Bowen, 487 U.S. at 595-96,

608-09 (federal law authorizing cash grants to religious as well as secular social

service agencies for pregnancy counseling does not violate establishment clause

because “nothing on the face of the Act suggests it is anything but neutral with

respect to the grantec's status as a sectarian or purely secular institution”) Weiz

v. Tax Commin, 397 U.S. 664, 671 (1970) (property tax exemption for churches

“along with nonprofit hospicals, art galleries, and libraries” was equivaien’

supplying churches the same police and fire protection provided to everyone

else). See also Board of Educ. v. Grumet, 114 S.Ct. 2481, 2491 (1994) (“[We

have frequently relied explicitly on the general availability of any benefit

provided religious groups or individuals in turning aside Establishment Clause

challenges.”), Zobrest v. Catalina Hills School Dist, 509 U.S. 1, 8 (1993)

(“W]e have consistently held that government programs that neutrally provide

benefits to a broad class of citizens defined without reference to religion are not

readily subyect to an Establishment Clause challenge just because sectarian

institutions may also receive an attenuated financial benefit.”); Board of Educ.

v. Allen, 392 U.S. 236, 242 (1968) (“[TJhe Establishment Clause does not

prevent a State from extending the benefits of state laws to all citizens without

regard for their religious affiliation... .”), Everson v. Board of Educ., 330 U.S.

1, 16 (1947) (“[The state] cannot exclude individual Catholics, Lutherans,

Mohammedans, or members of any other faith, because of their faith, or lack of

it, from receiving the benefits of public welfare legislation”)

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Il. “ENTANGLEMENT” ANALYSIS THREATENS RELI-

GIOUS VOLUNTARISM AND OTHER FUNDAMENTAL

CONSTITUTIONAL VALUES WITHOUT OFFERING

ANY COMPENSATING PROTECTION.

The Court has distinguished two kinds of church-state

entanglement which run afoul of the Establishment Clause.

“Administrative” or “institutional” entanglement describes

church-state relationships in which the government monitoring

thought necessary to ensure that government aid not be used to

advance religion, is itself so intrusive as to constitute an

independent violation of the Establishment Clause. Edward

McGtynn Gaffney, Political Divisiveness Along Religious Lines:

The Entanglement of the Court in Sloppy History and Bad

Public Policy, 24 St. Louis ULJ. 205, 211 (1980).

Government monitoring of teachers in religious elementary and

secondary schools to ensure that they are not advancing religion

is the paradigm case of excessive administrative entanglement.

See, e.g., Aguilar v. Felton, 473 U.S. 402 (1985); Meek v.

Pittenger, 421 U.S. 349, 369-70 (1975), Lemon v. Kurtzman,

403 U.S. 602, 617-19, 620-22 (1971). In fact, the Court has

never found excessive administrative entanglement to exist

outside the context of financial aid to religious schools.

“Political” entanglement describes church-state relationships

likely to cause “[p]olitical fragmentation and divisiveness on

religious lines.” Lemon, 403 U.S. at 623. Cash subsidies to

parochial schools are thought to create political entanglement

because of the risk of yearly budget battles in which political

opponents are distinguished principally by denominational

affiliation or lack thereof. Jd. at 622. The Court has confined

political entanglement to cases involving direct cash subsidies to

religious schools or their teachers, Corporation of the Presiding

Bishop v. Amos, 483 U.S. 327, 339 n.17 (1987); Mueller v.

-14-

Allen, 463 U.S. 388, 403 n.11 (1983), and has further suggested

that it is not an independent test of constitutionality under the

Establishment Clause. See Lynch, 465 U.S. at 684-85; id at 689

(O'Connor, J., concurring).

A. The development of entanglement as an independent test

of constitutionality has threatened religious voluntarism

and legitimized violation of the fundamental constitutional

rights of religious individuals and

Numerous commentators have observed that the “separatic-: of

church and state” is not an independent constitutional vaie, bu:

merely a means by which religious liberty is protected. Sec, - ¢,

STEPHEN L. CARTER, THE CULTURE OF DISBELIEF 107 (1993),

KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC

REASONS 67 (1995). Voluntarism is thus a more fundamental

AMERICAN CONSTITUTIONAL LAW, §14-11, at 1160 (2d ed.

1988); cf KENT GREENAWALT, PRIVATE CONSCIENCES AND

PUBLIC REASONS 67 (1995) (“[RJeligious liberty is considered

more fundamental than nonestablishment.”) Indeed, the Court

has affirmed that religious voluntarism is the fundamental purpose

of the Establishment Clause,‘ while rejecting the notion that total

separation of church and state is either possible or desirable.”

Consistent with this view of voluntarism as the fund

Establishment Clause value, Walz envisaged entanglem

* E.g., Walz v. Tax Comm'n, 397 U_S. 664, 669 (1970), Zorach v. Clauson,

343 U.S. 306, 312 (1952), Engel v. Vitale, 370 U.S. 421, 429 (1962).

* £E.g., Committee for Pub. Educ. v. Nyquist, 413 U.S. 756, 760 (1973);

Lemon v. Kurtzman, 403 U.S. 602, 614 (1971), quoted with approval in Lynch

v. Donnelly, 465 U.S. 668 (1984), Walz, 397 U.S. at 670; Zorach, 343 U.S. at

312, quoted with approval in Walz, 397 U.S. at 669.

-15-

analytic tool for identifying situations in which the choices of

religious individuals and organizations might be exposed to the

1. In a modern welfare state, use of administrative

entanglement to deny government aid to religious schools

violates the religious neutrality mandated by the

Establishment Clause.

Two hundred years ago, when government taxation and

church and state was a viable strategy for achieving religious

neutrality. Carl H. Esbeck, A Restatement of the Supreme

Court's Law of Religious Freedom: Coherence, Conflict, or

Chaos?, 70 NOTRE DAME L. REV. 581, 639 (1995). A

constitutional doctrine that preserved religious neutrality by

feasible “in a country with no public education, no public

transportation, no public health and safety programs — in short,

a libertarian, caretaker state.” John Valauri, The Concept of

Neutrality in Establishment Clause Doctrine, 48 U. PrtT. L. REV.

83, 99 (1986). Neutrality meant simply leaving religion alone,

neither taxing it nor subsidizing it. Esbeck, 70 NOTRE DAME L.

REV. at 639; Donald A. Giannella, Religious Liberty,

Nonestablishment, and Doctrinal Development—Part II: The

Nonestablishment Principle, 81 HARV. L. REV. 513, §22 (1968).

-16-

In an age, however, when our government taxes and funds

virtually every aspect of American life, “simply leaving religion

alone” imposes disproportionate financial burdens on religious

beliefs and practices, violating religious neutrality and

undermining religious voluntarism. Esbeck, 70 NOTRE DAME L.

REV. at 639; Giannella, 81 HARV. L. REV. at 525-26; Douglas

Laycock, Formal, Substantive, and Disaggregated Neutrality

Toward Religion, 39 DEPAUL L. REV. 993, 1001 (1990); Michael

W. McConnell & Richard Posner, An Economic Approach to

Issues of Religious Freedom, 56 U. CHI. L. REV. 1, 11 (1989).

“Older views stressed governmental abstention as a condition (if

not the substance) of freedom, [bJut increasingly, affirmative

governmental intervention is invoked to provide resources and

opportunities for desired freedoms.” Marc Galanter, Religious

Freedoms in the United States: A Turning Point?, 1966 Wis. L.

REV. 216, 268.

In the modern welfare state that the United States has become,

Religious neutrality requires that this aid not be denied to

“[RJeligious organizations should be able to compete on the same

grounds as other groups .. . they should not, on Establishment

grounds, be relegated to second-class status.” STEPHEN L.

CARTER, THE CULTURE OF DISBELIEF 121 (1993). To dem »*”

to otherwise qualified religious recipients constitutes a te . on

religious exercise which undermines voluntarism by ske .

private choice away from religion. Michael A. Paulsen, Relig:

Equality, and the Constitution: An Equal Protection Approa:::

to Establishment Clause Adjudication, 61 NOTRE DAME L. REV.

311, 355 (1986).

This is particularly the case with respect to elementary and

secondary education in the United States. Public schools are

supported by local tax dollars supplemented, in most cases

-]7-

substantially, by state and federal grants. Parents of religious

school students are not permitted to opt out of paying these

taxes, and in very few states are they entitled to any tax relief,

despite the fact that they save local, state, and federal govern-

ments thousands of dollars by educating their children privately.

Jesse Choper, The Establishment Clause and Aid to Parochial

Schools, 56 CALIF. L. REV. 260, 285 (1968); Phillip E. Johnson,

Concepts and Compromise in First Amendment Religious

Doctrine, 72 CALIF. L. REV. 817, 844 (1984); McConnell &

Posner, 56 U. CHI. L. REV. at 24; Paulsen, 61 NOTRE DAME L.

REV. at 359. Government aid to private religious schools is

merely a modest attempt to readjust the tax burden of education

costs between those parents who desire a public secular

education for their children, and those who desire a religious

education but are compelled through taxation to pay for the

public education their children do not use. Johnson, 72 CALIF. L.

REV. at 822; Paulsen, 61 NOTRE DAME L. REV. at 356, 358 &

n.210. Genuine neutrality between religious schools and public

schools — between “religion and nonreligion” — requires that

religious schools be apportioned a share of educational tax dollars

reflecting the secular value of the education they supply. If most

requires that religious schools be eligible to receive it as well.

Giannella, 81 HARV. L. REV. at 572, 575; Johnson, 72 CALIF. L.

REV. at 845.

Administrative entanglement, however, functions to prevent

religious schools from receiving most forms of direct aid from the

government, by making it impossible for direct aid to satisfy the

Lemon test. If government aid comes without any monitoring

procedures to ensure that the aid will not be used to advance the

religious mission of the religious school recipients, it will almost

certainly be held to violate the primary secular effect prong of

Lemon. See, e.g., Grand Rapids School Dist. v. Ball, 473 U.S.

373, 386 (1985); Leavitt v. Committee for Pub. Educ., 413 U.S.

-18-

472, 479-80 (1973). If, on the other hand, a means is provided

to guarantee that government aid will not be used to advance the

religious mission of the recipients, it will almost certainly be held

to constitute excessive administrative entanglement. See, é.g.,

Aguilar v. Felton, 473 U.S. 402 (1985). Although Regan and

Wolman held that direct aid to religious schools is constitutional

when the aid does not support and cannot be diverted to the

religious mission of the school, “the entanglement prong ensures

that in most cases this very showing will result in a violation of

the Establishment Clause.” FREDERICK MARK GEDICKS, THE

RHETORIC OF CHURCH AND STATE 52 (1995). However this state

of affairs might be characterized, it is not neutral as between

religion and nonreligion.

2. Entanglement exacerbates the tensions between the F

Exercise and Establishment Clauses by placing in questi

the constitutional legitimacy of exemptions obtained b,

lio individuals and ps tl h the political

process.

Even as it abandoned the doctrine of judicially mandated

exemptions for religion under the Free Exercise Clause, the Court

affirmed the constitutionality of permissive exemptions —

legislative and administrative exemptions granted to religious

individuals and organizations even though the Free Exercise

Clause does not require them. Board of Educ. v. Grumet, 114

S.Ct. 2481 (1994); Employment Div. v. Smith, 494 U.S. 872, 890

(1990); see also Corporation of the Presiding Bishop v. Amos.

483 U.S. 327 (1987) (Title VII exemption for religious employe :s

does not violate Establishment Clause). However, taking

account of government-imposed burdens on religion unavoidably

entangles government with religion; “a government that is not to

some extent ‘entangled’ with religion is one that is indifferent to

it.” Michael W. McConnell, Religious Freedom at a Crossroads,

59 U. CHI. L. REV. 115, 130 (1992); accord Donald Gianella,

-19-

Lemon and Tilton: The Bitter and the Sweet of Church-State

Entanglement, 1971 Sup. CT. REV. 147, 171.

The entanglements entailed in crafting permissive exemptions

are not trivial. Government officials necessarily must evaluate

whether allegedly burdened religious conduct is in fact burdened;

whether such conduct, if burdened, is in fact religious; whether

such conduct, if religious, is deserving of an exemption from a

general law; and whether an exemption for such conduct, even if

deserved, is feasible in light of the legitimate goals of the law in

question. Just as the need for government assistance may tempt

parochial schools to compromise their religious missions to

qualify for government assistance, so the need to convince

government officials of burden, religiosity, sincerity, and

limited to “long-established churches whose religiosity [is]

universally conceded.” Jesse Choper, The Religion Clauses of

the First Amendment: Reconciling the Conflict, 41 U. PrtT. L.

REV. 673, 682-83 (1980). In that instance, new, unusual, or

unpopular churches would find themselves unable to obtain such

exemptions at all.

3. Administrative entanglement constitutes discrimination on

the basis of religion in violation of the Equal Protection

Clause of the Fourteenth Amendment.

Suspicion of government action that classifies on the basis of

religion is rooted in the very origins of modern equal protection

doctrine. See United States v. Carolene Prods., 304 U.S. 144,

152 n.4 (1938) (questioning the validity of the “presumption of

constitutionality” in case of “statutes directed at particular

religions”). Religious classifications have been subjected to strict

-20-

judicial scrutiny and invalidated under both religion clauses.

Church of the Lakumi Babylu Aye, Inc. v. City of Hialeah, 508

U.S. 520 (1993) (Free Exercise Clause); Larson v. Valente, 456

U.S. 228 (1982) (Establishment Clause); see also McDaniel v.

Paty, 435 U.S. 618 (1978) (state constitutional provision

prohibiting clergy from serving in legislature violates

Establishment Clause).

As we have shown, administrative entanglement functions as a

de facto denial of direct government aid to religious schools,

solely because of the religious character of such schools. This

denial of direct aid to religious schools may well be necessary to

satisfy the compelling governmental interest of avoiding an

Establishment Clause violation, if the government were not

religiously neutral; that is, if it were to assist some religious

schools but not others, or all religious schools, but not private

secular and public schools. Such action might be justified for the

same reason when aid is given directly to religious schools

without controls to assure that it is used only for secw!>-

in-kind aid is made available to all on a religiously neutrz! ba-

under circumstances that ensure that it will not be used to _-

or otherwise advance religion, there is no justification for denyuii,,

to religious schools the equal protection of the laws.© As

* Cf Rectors of the Univ. of Va. v. Rosenberger, 115 S.Ct. 2510 (1995)

(Establishment Clause does not justify denying evangelical student magazine

rembursement from university student activity fund on the same basis as other

student publications), Lamb's Chapel v. Center Moriches School Dist., 508 U.S.

384 (1993) (same with respect to church access to public school facilities on

same basis as secular groups), Widmar v. Vincent, 454 U.S. 263 (1981) (same

with respect to student bible study and prayer group access to university facilities

on the same basis as other student groups); see also Westside Comm. School

Dist. v. Mergens, 496 U.S. 226 (1990) (upholding Equal Access Act's

withholding of federal funds from public schools which deny approval of extra-

curnicular activities on the basis of their religious content).

-21-

Professor (now-Judge) Ripple cogently observed, “the policy

considerations of entanglement must, at some point, meet the

headwinds of equal protection. .. .” Kenneth F. Ripple, The

Entanglement Test of the Religion Clauses—A Ten Year

Assessment, 27 U.C.L.A. L. REV. 1195, 1205 (1980).

4. Political entanglement violates Establishment Clause

Sey by uniquely deprivi cious individuals and

groups of political and associational rights protected by

the First Amendment.

Numerous scholars have criticized the political entanglement

test because it devalues rights of political participation and

association» when these rights are exercised by religious

individuals and groups. See, e.g., Jesse Choper, The Religion

Clauses of the First Amendment: Reconciling the Conflict, 41

U. Prt. L. REV. 673, 683-84 (1980); Edward McGlynn Gaffney,

of the Court in Sloppy History and Bad Public Policy, 24 St.

Louis U_L_J. 205, 230-31 (1980); Michael A. Paulsen, Religion,

Equality, and the Constitution: An Equal Protection Approach

to Establishment Clause Adjudication, 61 NOTRE DAME L. REV.

311, 346 (1986); Ripple, 27 U.C.L.A. L. REV. at 1226. In the

very decision that spawned the entanglement prong, the Court

observed that “[aJdherents of particular faiths and individual

churches frequently take strong positions on public issues,” and

insisted that “churches as much as secular bodies and private

citizens have that right.” Walz v. Tax Comm'n, 397 U.S. 664,

670 (1970). Even so strong a proponent of entanglement analysis

as Justice Brennan’ strongly criticized use of political

’ See, e.g., Aguilar v. Felton, 473 U.S. 402, 408-14 (1985), Meek v. Pittenger,

421 U.S. 349, 373-84 (1975) (Brennan, J., concurring in part and dissenting in

part), Lemon v. Kurtzman, 403 U.S. 602, 648-52 (1971) (opinion of Brennan,

J).

-22-

entanglement to deprive religious individuals and groups of

fundamental constitutional rights. McDaniel v. Paty, 435 U.S.

618, 641 (1978) (Brennan, J., concurring).

B. To the extent that it invalidates church-state relationships

which advance or inhibit religion, entanglement is

redundant of the protection of religious voluntarism

afforded by purpose and effect.

prong, it usually violates the purpose or effect prong as well.

Peter Schotten, Zhe Establishment Clause and Exces<iv°

Governmental-Religious Entanglement: The Constiti

Status of Aid to Nonpublic Elementary and Secondary Sc:

15 WAKE FOREST L. REV. 207, 215 (1979). Walz itself descr.

excessive entanglement as merely an effect that inhibits religion.

397 U.S. at 674; accord Michael A. Paulsen, Religion, Equality,

and the Constitution: An Equal Protection Approach to

Establishment Clause Adjudication, 61 NOTRE DAME L. REV.

311, 349 (1986); Kenneth F. Ripple, The Entanglement Test of

the Religion Clauses—A Ten Year Assessment, 27 U.C.L.A. L.

REV. 1195, 1197 (1980); see also Walz, 397 U.S. at 692-94

(Brennan, J., concurring) (intrusion of state into affairs of

churches resulting from taxation of church property would

disfavor churches relative to analogous secular nonprofit associa-

tions in violation of effects prong). It is therefore unclear what

entanglement adds to the analysis already supplied by purpose

and effect. See Aguilar v. Felton, 473 U.S. 402, 430 (1985)

(O'Connor, J., joined by Rehnquist, J., dissenting); Roemer v.

Maryland Bd. Pub. Works, 426 U.S. 736, 768-69 (1976) (White,

J., concurring).

For example, in Larkin v. Grendel's Den, 459 U.S. 116 (1982),

the Court found that the delegation of municipal licensing

authority to churches constituted political entanglement, id. at

-23-

127, but only after it had found that such delegation

impermissibly advanced religion in violation of the effects prong.

Id at 125-26. Similarly, Larson v. Valente, 456 U.S. 228 (1982),

suggested that a religiously discriminatory law constituted

political entanglement after it had already determined that the law

prescribed an impermissible denominational preference. 456 US.

246-55; see also Board of Educ. v. Grumet, 114 S.Ct. 2481

(1994) (legislative creation of school district whose boundaries

precisely coincided with sectarian religious community held

impermissible religious preference). Thus, because “the

circumstances that give rise to excessive church-government

also threaten violation of the Court's primary effect

test,” Peter Schotten, The Establishment Clause and Excessive

Governmental-Religious Entanglement: The Constitutional

Status of Aid to Nonpublic Elementary and Secondary Schools,

15 WAKE FOREST L. REV. 207, 215 (1979), entanglement analysis

is often redundant.

C. When it is not redundant, entanglement analysis depends

on impressionistic judgments based on hypothetical facts.

The entanglement prong has contributed to the confusion in

Establishment Clause jurisprudence in at least two ways. First,

as we have explained, entanglement effectively denies most direct

government aid to religious elementary and secondary schools on

the ground that religion pervades every part of their activities and

operations. By contrast, religious colleges and religious social

service agencies are considered by the Court to be essentially

secular entities. Aid to these entities is subjected to a more

relaxed standard of review, with the result that most religious

college and social service aid programs have been found not to

violate the Establishment Clause. See Part I.C supra. Thus,

“whether a religious group is classified as ‘pervasively sectarian’

is critical to the subsequent determination whether direct aid to

-24-

the group violates the Establishment Clause.” FREDERICK MARK

GEDICKS, THE RHETORIC OF CHURCH AND STATE 85 (1995).

Despite the critical importance of the pervasive/nonpervasive

distinction, the nature of an aid recipient is often not documented

by an evidentiary record or the subject of careful scrutiny by the

Court. See, e.g., Aguilar v. Felton, 473 U.S. 402, 411-12

(1985); Meek v. Pittenger, 421 U.S. 349, 366 (1975); Committee

of Public Education v. Nyquist, 413 U.S. 756, 767 (1973). The

Court conclusively presumes that religious elementary and

secondary schools are pervasively sectarian, see e.g., Aguilar,

473 U.S. at 411-12; Grand Rapids School District v. Ball, 473

U.S. 373, 384-85 (1985); Nyquist, 413 U.S. at 767-68. while

there is a strong presumption that religious colleges and socia’

service agencies, though religiously affiliated, are not perv. sively

sectarian. See, e.g., Bowen v. Kendrick, 487 U.S. 589 (8).

Aguilar, 473 U.S. at 411; Roemer v. Maryland Board of Pub...

Works, 426 U.S. 736, 758-59 (1976). Social science data and

large numbers of religious schools and colleges.’ One commenta-

tary and secondary schools as an outdated description of Roman

Catholic parochial schools.in the 1950s. Peter Schotten, The

Establishment Clause and Excessive Governmental-Religious

Entanglement: The Constitutional Status of Aid to Nonpublic

Elementary and Secondary Schools, 15 WAKE FOREST L. REV.

207, 239-44 (1979). Others have questioned the accuracy of the

* For a detailed review of the data and arguments, see FREDERICK MARK

GEDICKS, THE RHETORIC OF CHURCH AND STATE 85-91, 169-74 nn. 17-42

(1995).

-25-

Court's estimation of the sectarian influence at religious elemen-

tary and secondary schools.”

There is frequently no evidentiary basis for these presumptions.

In Aguilar and Grand Rapids, for example, the Court feared

religious indoctrination of religious school students by state

programs in these cases had been in existence for many years

without any evidence of such behavior. Grand Rapids School

Dist. v. Ball, 473 U.S. 373, 386, 388 (1985); Aguilar v. Felton,

473 U.S. 402, 428 (1985) (O'Connor, J., dissenting).

Second, when financial aid to religious schools is not accompa-

nied by any means of assuring that it will not be used to advance

religion, the Court has often estimated the likely effect of such aid

and held the aid unconstitutional if it predicts this effect may

advance religion. See, e.g., Grand Rapids School District v.

Ball, 473 U.S. 373, 386, 397; Meek v. Pittenger, 421 U.S. 349,

370 (1975); Committee for Public Education v. Nyquist, 413

US. 756, 779-80 (1973). In addition, it has often speculated that

the sorts of government monitoring necessary to ensure that

religion is not advanced would excessively intrude upon the

religious aid recipient in violation of the entanglement prong.

See, e.g., Wolman v. Walter, 433 U.S. 229, 254 (1977), Meek,

421 US. at 370-72; Lemon v. Kurtzman, 403 U.S. 602, 619

(1971). In either event, entanglement functions as a prophylactic

against situations in which an impermissible purpose or effect

* John Garvey, Another Way of Looking at School Aid, 1985 Sup. Cr. Rev. 61,

77 (arguing that even a very strong sectarian influence is unlikely to have any

effect on employees who are paid, supervised, and evaluated by state agencies),

William P. Marshall, ‘We Know It When We See It’: The Supreme Court and

Establishment, 59 S. Cat. L. Rev. 495, 525-26 (1986) (disputing that

“providing counseling services in a particular building as opposed to across the

street” affects the behavior of school counselors).

-26-

might occur. E.g., id. at 624-25; accord Kenneth F. Ripple, The

Entanglement Test of the Religion Clauses—A Ten Year Assess-

ment, 27 U.C.L.A. L. REV. 1195, 1200-01, 1208 (1980).

When the Court employs entanglement as a prophylactic rule,

it decides the constitutionality of a law “based upon a set of

circumstances that does not exist.” Gary J. Simson, The

Establishment Clause In the Supreme Court: Rethinking the

Court's Approach, 72 CORNELL L. REV. 905, 933 (1987). This

is inappropriate in two respects. First, to speculate on the

PR ey rn male

to ensure compliance with the purpose and effect prone: .

merely to render an advisory opinion. Jd. Second, this mode of

analysis introduces an unacceptable degree of subjectivity into

constitutional adjudication: “The degree of entanglement deemed

‘excessive’ often appears to be the product of personal judgments

about certain religions and their institutions by a decision-maker

who may or may not have any real exposure to the particular sect

in question.” Ripple, 27 U.C.L.A. L. REV. at 1218.

il. THIS CASE ILLUSTRATES THE DANGER AND —

DUNDANCY OF APPLYING ENTANGLEMENT » .

DISTINCT TEST OF CONSTITUTIONALITY UNDE

THE ESTABLISHMENT CLAUSE.

The immediate result of the Court's holding in Aguilar v.

Felton, 473 U.S. 402 (1985), is that large numbers of education-

ally disadvantaged children were denied the benefits of a program

of remedial assistance solely because they were attending

religious schools. /d. at 419 (Burger, C.J. dissenting); id. at 431

(O'Connor, J. dissenting). The secular purpose of the assistance

was undisputed, id. at 423 (O'Connor, J. dissenting), and the

system of monitoring put in place by the state ensured that the

assistance was not used to teach religion. The program failed

-27-

merely because the Court deemed this monitoring an excessive

entanglement. See, id. at 409, 412-13.

That outcome cannot be squared with the neutrality principle.

It is not religiously neutral to deprive children of secular educa-

tional benefits to which they are otherwise entitled, solely because

they choose to attend private religious rather than secular public

schools. For educationally disadvantaged children, the denial of

these benefits constitutes a penalty on their decision to seek a

religious education — a penalty that doubtless will influence at

least some of them to return to public schools in order to recover

those benefits. Entanglement thus has the indisputable effect of

undermining ‘eligious voluntarism. The denial of benefits

predicated on the religious character of the school the recipients

attend constitutes a religious classification. In the clear presence

of both a secular purpose and a primarily secular effect, that

result cannot be justified as necessary to avoid a violation of the

Establishment Clause. The instant case thus presents a stark

illustration of the analytical bankruptcy of entanglement. In

short, entanglement should be discarded as an element of

-28-

CONCLUSION

The judgment of the Second Circuit should be reversed.

Respectfully submitted,

FREDERICK MARK GEDICKS RONALD D. MAINES

1338 East 660 North (Counsel of Record)

Orem, UT 84097 R. SHAWN GUNNARSON

(801) 224-8614 MAINES & LOEB, PLLC

2300 M Street, N.W.

Suite 900

Washington, D.C.

February 28, 1997

at

aes