The Law of Church and State: Developments in the Supreme Court Since 1980

Congressional research reportAug 15, 2002

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The Law of Church and State:

Developments in the

Supreme Court Since 1980

Updated August 15, 2002

-name redactedLegislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

The Law of Church and State: Developments in the

Supreme Court Since 1980

Summary

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.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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

(d) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

“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

(d) Modifications of the Lemon Test . . . . . . . . . . . . . . . . . . . . . . . . . . 29

(e) Other establishment clause tests – coercion and tradition . . . . . . . 35

(f) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Particular Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

(a) Religious Activities in the Public Schools . . . . . . . . . . . . . . . . . . . 37

(b) Religion in the Public Square . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

(d) Governmental Solicitude for Religion . . . . . . . . . . . . . . . . . . . . . . 59

(e) Taxation of Religious Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

(f) Other Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

APPENDIX

SUPREME COURT DECISIONS ON CHURCH AND STATE, 19802002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

The Law of Church and State:

Developments in the Supreme Court Since

1980

Introduction

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 Thomas

Jefferson’s words, a “wall of separation between church and state.”1 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 constitutional

amendment to overturn some of the Court’s church-state decisions2 but also

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.

In 1981 President Reagan first proposed a constitutional amendment on school prayer. See

(continued...)

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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

supreme Court.”

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

(...continued)

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, 5644; 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 1994

elections. Although no formal votes occurred in the 104th 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 churchstate jurisprudence. In the 105th Congress that interest and debate persisted; and on May 19,

1998, the House Judiciary Committee favorably reported a modified version of a broadgauge 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).

See, e.g., the address by Attorney General Edwin Meese III to the House of Delegates of

the American Bar Association (July 9, 1985).

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).

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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

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.

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.

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.

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(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.

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.)

Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872

(1990).

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).

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“Congress Shall Make No Law ... Prohibiting the Free

Exercise [of Religion]”: The Rise and Fall of the Strict

Scrutiny Standard

(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

Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878).

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).

374 U.S. 398 (1963).

406 U.S. 205 (1972).

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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

Id. at 220.

450 U.S. 707 (1981).

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.

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only those interests of the highest order ... can overbalance claims to the free

exercise of religion.”18

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 Human

Resources v. Smith,19 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

Id. at 718, quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).

494 U.S. 872 (1990).

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,

307 Or. 68, 763 P.2d 146 (1988).

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the law proscribes (or prescribes) conduct that his religion prescribes (or

proscribes).”21

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,”

and create “a private right to ignore generally applicable laws.”22 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, is

simply an “unavoidable consequence of democratic government.”23 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

of religion.

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

Employment Division v. Smith, supra n. 19, at 879, quoting United States v. Lee, 455 U.S.

252, 263 (1982) (Stevens, J., concurring in the judgment).

Id. at 884-86.

Id. at 890.

Although the margin was 5-4 on the disavowal of the strict scrutiny test, the Court divided

6-3 on the merits. Justice O’Connor joined Chief Justice Rehnquist and Justices Scalia,

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.

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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

proscribes).”25

(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

contexts.

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

Employment Division v. Smith, supra n. 19, at 878.

455 U.S. 252 (1981).

Id. at 258.

461 U.S. 574 (1983).

Id. at 604. Justice Rehnquist dissented from the Court’s holding that the IRS could

(continued...)

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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, 52.31 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-YoderThomas 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

(...continued)

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).

490 U.S. 680 (1989).

Neither Justice Brennan nor Justice Kennedy participated.

Id. at 687, quoting United States v. Lee, supra, at 260.

493 U.S. 378 (1990).

475 U.S. 503 (1986).

Id. at 506-07. The majority was composed of Chief Justice Burger and Justices

(continued...)

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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

exercise claims.

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

(...continued)

Rehnquist, White, Powell, and Stevens.

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).

482 U.S. 342 (1987).

Id. at 353, quoting Block v. Rutherford, 468 U.S. 576, 588 (1984).

Id. at 349.

476 U.S. 693 (1986).

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.

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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

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).

Id. at 700.

485 U.S. 439 (1988).

Id. at 451-52.

Id. at 450.

Id. at 451.

480 U.S. 136 (1987).

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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

accept work.’”49

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

unconstitutional.

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, thenJustice Rehnquist’s dissent in Thomas had become the Court’s standard for most free

exercise cases:

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 of

any group.52

Id. at 146, quoting Sherbert v. Verner, supra, at 404.

489 U.S. 829 (1989).

Id. at 1516, quoting Hobbie, supra, at 144.

Thomas v. Review Board, Indiana Employment Security Division, 450 U.S. at 723

(Rehnquist, J., dissenting).

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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. City

of Hialeah53 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 their

object the suppression of religion,”55 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:

508 U.S. 520 (1993).

Id. at 2226.

Id. at 2231.

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Legislators may not devise mechanisms, overt or disguised, designed to persecute

or oppress a religion or its practice. The laws here in question were enacted

contrary to these constitutional principles, and they are void.56

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 as

applied to the states and localities. In City of Boerne, Texas v. Flores58 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

Id. at 2234.

P.L. 103-41, 103d Cong., 1st Sess. (Nov. 16, 1993); 42 U.S.C.A. 2000bb et seq.

521 U.S. 407 (1997).

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“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

delineated.

(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 “Religious

Land Use and Institutionalized Persons Act of 2000” (RLUIPA).59 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 “reexamine the rule Smith declared.” Justices Blackmun and O’Connor reiterated the

P.L. 106-204 (Sept. 22, 2000); 114 Stat. 804; 42 U.S.C.A. 2000cc et seq.

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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 and

as manifesting an “unjustified hostility toward religion.”63 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

Edwards v. Aguillard, 482 U.S. 578, 639 (1987) (Scalia, J., dissenting).

Wallace v. Jaffree, 472 U.S. 38, 113 (1985) (Rehnquist, J., dissenting).

Rosenberger v. The Rector and Visitors of the University of Virginia, supra (Thomas, J.,

concurring).

County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492

U.S. 573, 655 (1989) (Kennedy, J., dissenting).

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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 in

1947, “the refined product and the terse summation of that history.”64 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 establish

their supremacy65:

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 religious

individual or group.”68 Virginia’s experience, the Court said, “best reflect[ed] the

Everson v. Board of Education, 330 U.S. 1, 33 (1947) (Rutledge, J., dissenting).

Id. at 8 (opinion of the Court)..

Id., at 9.

Id.

Id. at 11.

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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

statute.”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’s

compact, but nonetheless comprehensive, phrasing.73

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.

McGowan v. Maryland, 366 U.S. 420, 437 (1961).

Id. at 13.

Id.; Engel v. Vitale, 370 U.S. 421, 427-28 (1962). See also McGowan v. Maryland, 366

U.S. 420, 437-440 (1961).

Everson v. Board of Education, 330 U.S. at 31 (Rutledge, J., dissenting).

Id. at 39.

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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 against

any governmental establishment of religion.74

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 to

forbid a national or state church.”75 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 separation

between church and State.”76

Initially, every member of the Court joined in this separationist reading of the

historical underpinnings and consequent broad scope of the establishment clause.77

Engel v. Vitale, 370 U.S. at 431-33.

McGowan v. Maryland, supra, at 441-42.

Everson v. Board of Education, 330 U.S. at 15-16. Jefferson had created his “wall of

separation” metaphor in 1802. See n. 1.

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.

330 U.S. at 31-32 (Rutledge, J., dissenting).

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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

articulation:

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

374 U.S. 203 (1963).

Id. at 222.

397 U.S. 664 (1970).

403 U.S. 602, 612-13 (1971).

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.

(continued...)

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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 clause

was criticized by Justice Reed as early as 1948,84 and Justice White raised questions

about the excessive entanglement prong of the tripartite test in the very case in which

the test was first fully articulated.85 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,

and Thomas.

The critiques have been voiced in both majority decisions and concurring and

dissenting opinions. In 1983 in Marsh v. Chambers,86 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

(...continued)

793 (2000) (the Agostini modification used in upholding program providing instructional

materials and equipment to sectarian schools).

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).

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.

Lemon v. Kurtzman, 403 U.S. at 661-671 (White, J., dissenting).

463 U.S. 783 (1983).

Marsh v. Chambers, 463 U.S. at 792.

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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

465 U.S. 668 (1984).

Id. at 679.

Id. at 674.

Id. at 673.

Id.

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).

Id. at 92, 107

Id. at 98.

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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 “wellaccepted 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

unpredictability.”103

Id.

Id. at 99.

Id. at 113.

Id. at 106.

100

Id. at 107.

101

Id. at 112.

102

Id. at 108.

103

Id. at 110, 112.

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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,

J., dissenting).

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.

CRS-26

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.

The evidence that does exist points in the opposite direction ....117

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 the

states.118 “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).

CRS-27

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 be

considered.120 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 specific

practices,’” lest their work be treated as “static and lifeless.”121

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.,

concurring).

122

See Wallace v. Jaffree, supra, at 52, and Allegheny County v. Greater Pittsburgh ACLU,

492 U.S. at 590.

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).

CRS-28

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” in

general.124

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 virtual

nullity.”125

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

“absurd”:

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 no

orthodoxy on religious matters in the secular state.126

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.

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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

Amendment.”130

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,

869-71 (1995), n. 1 (Souter, J., dissenting).

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).

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constituencies defined along religious lines.” More importantly, she said, the

establishment clause is violated by “government endorsement or disapproval of

religion”:

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. Disapproval

sends the opposite message.133

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 national

theology board” and decide “what every religious symbol means.”135 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

cases.136

(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

(2002).

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of both the primary effect and excessive entanglement prongs of the tripartite Lemon

test.

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 funds

a specifically religious activity in an otherwise substantially secular setting.138

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 will

involve excessive and enduring entanglement between state and church”139; 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 and

excessive entanglement prongs of the tripartite test.140 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 aid

creates an excessive entanglement between government and religion.141

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 to

such entities will be used for the secular purposes intended.142 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.

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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

satisfy it.

(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).

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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 be

their adversary.147

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 also

receive an attenuated benefit.”150

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

asserted:

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

Court stated:

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).

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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 behest

of the government.151

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

religiosity.

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(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 which

`establishes a [state] religion, or religious faith, or tends to do so.”153 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 a

redundancy.”154 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 least

two school prayer cases.155

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).

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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 has

made it considerably easier for voucher programs to pass constitutional muster.160

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.

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Particular Issues

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

constitutional;

(b) expanded the permissible scope of religious speech in the public square,

whether spoken or symbolic;

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

schools;

(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

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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 receiving

religious instruction from private teachers.165 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 schoolsponsored 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.

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(1) Government sponsorship of religion. In cases involving schoolsponsored 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.168

In a third decision the Court in Lee v. Weisman169 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 exercise

....”171 “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 religious

exercise.”172 But “[t]he First Amendment’s Religion Clauses,” he asserted, “mean

that religious beliefs and religious expression are too precious to be either proscribed

or prescribed by the State.”173 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’g

mem., 705 F.2d 1526 (11th 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

statute:

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 .

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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 pregame 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.

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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

expression.

In Wallace v. Jaffree179 the Court for the first time addressed the

constitutionality of provisions mandating moments of silence at the beginning of each

school day.180 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 1978

statute already protected that right ....182

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 or

preference to prayer.183

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

280-81 (Brennan, J., concurring).

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).

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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 studentinitiated 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

content-neutral ....”185

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 the

establishment clause.186

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

971 (1st Cir. 1980), cert. den., 454 U.S. 1123 (1981); Lubbock Civil Liberties Union v.

Lubbock Independent School District, 659 F.2d 1038 (5th Cir. 1982), cert. den., 459 U.S.

1156 (1983); Bell v. Little Axe Independent School District, 766 F.2d 1391 (10th Cir. 1985);

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

538 (3d Cir.), vacated for want of jurisdiction, 475 U.S. 534 (1986).

187

20 U.S.C. 4071-74 (1988).

188

496 U.S. 226 (1990).

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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 or

support student speech that it merely permits on a nondiscriminatory basis.190

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 of

Virginia191 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).

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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 by

itinerant evangelists193 and resident booksellers,194 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

(1953).

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)

(concurring):

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

public questions.

See also Schneider v. State, 308 U.S. 147 (1939).

199

Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).

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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

legislative chaplaincy.

(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

restrictions.

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

(1983).

201

452 U.S. 640 (1981).

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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 governmental

interest,” she stated, “could justify such an absolute prohibition of speech.”203

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).

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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,

6-3. There was no significant distinction, it said, from the facts of Lamb’s Chapel;

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 schoolsponsored, 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-todoor 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).

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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 addre

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