Establishment Clause (Update)

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ESTABLISHMENT CLAUSE (Update)

At the close of the twentieth century, the Supreme Court's jurisprudence of the establishment clause appears to be in radical transition. Between world war ii and the 1980s, the Court adhered to a largely separationist understanding of the establishment clause, under which public institutions and programs—and especially public schools—were understood to be exclusively secular, and religious institutions were barred from participation in many government-funded programs. That understanding was reflected in the controversial three-part test of lemon v. kurtzman (1971), which required that government action have a secular purpose; have a primary effect that neither advances nor inhibits religion; and refrain from excessive entanglement between religion and government.

Each of these parts of the lemon test received criticism, mostly on the ground that they had the effect of requiring discrimination against, or hostility toward, religion. As the years wore on, the Lemon test became encrusted with multiple conflicting interpretations, rendering it largely indeterminate.

Beginning with widmar v. vincent (1981), the Supreme Court began a shift toward an interpretation based on the idea of neutrality: that the first amendment prohibition on the establishment of religion permits the government to allow religious institutions and religiously motivated individuals to share in the benefits of public life without discrimination. Widmar involved a public university that allowed student groups to use empty facilities for meetings. In order to preserve a strict separation of church and state, the university refused to permit the use of facilities for religious activities. That meant that a student group could meet on campus to discuss sex, drugs, rock and roll, politics, or Shakespeare, but could not meet to pray or study the Bible. Reversing the appellate court, the Supreme Court held that the establishment clause is not offended by the neutral provision of facilities to religious and secular student groups on an evenhanded basis, and that the freedom of speech guarantee forbids the exclusion of any group on the basis of the content of its speech.

The Widmar paradigm of "equal access" soon began to spread to other constitutional issues. First, the Court approved tax credits that could be used for expenses at public or private schools. Then, Congress extended the principle of "equal access" to high school student groups. In 1986, the principle was extended by a unanimous Supreme Court to an issue of funding, which had previously been the area of the most rigid strict separationism. In that case, witters v. washington department of services for the blind (1986), the Court held that aid that is "made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institutions benefited" does not generally violate the establishment clause.

In subsequent cases, the Court held that a government-provided sign language interpreter could be used by a student at a Roman Catholic high school; that religious symbols may be displayed in a public square; and that a public university may (indeed must) fund a student publication with a religious viewpoint. In all of these cases, the dispositive consideration was that the aid was provided on a neutral basis, without favoring or disfavoring religion.

It is a sign of the shift in doctrine that every one of these decisions required reversing the lower court. It takes a certain period of time before a new legal principle works its way into the ordinary law of the lower courts. In this context, the process has been prolonged by the Court's reluctance to overrule its earlier decisions. In particular, the Court has declined to overrule Lemon even though it has not relied on that case to strike down a government policy in almost fifteen years. As a result, inconsistent decisions have piled up, and lower courts are uncertain about the state of the law.

Indeed, the Supreme Court has not been prepared to adopt the neutrality approach unreservedly. In rosenberger v. rector & visitors of the university of virginia (1995), where the Court approved the funding of a religious student magazine on a neutral basis, the majority opinion, authored by Justice anthony m. kennedy, cabined the holding with three distinctions that are difficult to square with any coherent theory of the First Amendment: that the aid came in the form of a payment of the printer's bill rather than a subsidy to the group; that the student group was not organized as a "religious organization"; and that student mandatory activity fees are not the same as taxes. One suspects that the purpose of these distinctions is to allow the Court to retreat from the neutrality principle in the future, if it wishes, without overruling this decision.

In other important areas of establishment clause jurisprudence, doctrine is also in flux. Since the mid-1980s, the Court has generally approved the idea that legislatures and executive officials may accommodate the exercise of religion, even when not compelled to do so under the free exercise clause, subject to certain limitations. However, in practice, the Court has been reluctant to approve of accommodationof religion in many cases. The standard for legitimacy of religious accommodations therefore remains unsettled.

The closest to a "test" for legitimate accommodations is found in the plurality opinion written by Justice william j. brennan, jr. , in texas monthly, inc. V. bullock (1989). The plurality stated that the government may single out religious organizations for a special accommodation when it is designed to relieve a substantial government-imposed burden on the exercise of religion, or where the accommodation does not impose a substantial burden on third parties. (It is unclear whether both of these criteria need to be satisfied, or just either one.) As a result of the vagueness of these standards, as well as the lack of a majority opinion, this area remains very much in doubt.

In board of education of kiryas joel village school district v. grumet (1994), the Court implied that it is generally unconstitutional for the government to accommodate a particular religious group, where there is no satisfactory legal guarantee that similarly situated religious groups would receive comparable accommodations. As a practical matter, that makes it difficult for legislatures to make accommodations except in broad terms, and makes it difficult for executive officers to do so at all. It is not clear whether that principle was intended to be so sweeping.

Michael W. McC onnell
(2000)