SEPARATION OF CHURCH AND STATE

The first provision of the bill of rights—known as the establishment clause—states that "Congress shall make no law respecting an establishment of religion. …" This constitutional mandate seeks to assure the separation of church and state in a nation characterized by religious pluralism.

Justice wiley b. rutledge observed in everson v. board of education (1947) that "no provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the first amendment." Justice hugo l. black recounted in Everson that in the old world, "with the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Baptists, 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." And, he added, "these practices of the old world were transplanted to and began to thrive in the soil of the new America." For example, in Massachusetts, Quakers, Baptists, and other religious minorities suffered harshly and were taxed for the established Congregational Church. In 1776, the Maryland "Declaration of Rights" stated that "only persons professing the Christian religion" were entitled to religious freedom, and not until 1826 were Jews permitted to hold public office. The South Carolina Constitution of 1778 stated that "the Christian Protestant religion shall be deemed … the established religion of this state."

The specific historical record, rather than disclosing a coherent "intent of the Framers," suggests that those who influenced the framing of the First Amendment were animated by several distinct and sometimes conflicting goals. Thus, thomas jefferson believed that the integrity of government could be preserved only by erecting "a wall of separation" between church and state. A sharp division of authority was essential, in his view, to insulate the democratic process from ecclesiastical depradations and excursions. james madison shared this view, but also perceived church-state separation as benefiting religious institutions. Even more strongly, roger williams, one of the earliest colonial proponents of religious freedom, posited an evangelical theory of separation, believing it vital to protect the sanctity of the church's "garden" from the "wilderness" of the state. Finally, there is evidence that one purpose of the establishment clause was to protect the existing state-established churches from the newly ordained national government. (Indeed, although disestablishment was then well under way, the epoch of state-sponsored churches did not close until 1833 when Massachusetts separated church and state.)

Even if the Framers' intent were unanimous and unambiguous, it still could not provide ready answers for many contemporary problems. First, a number of present-day church-state issues were not foreseen by the founders. For example, public education was virtually unknown in the eighteenth century; the Framers could have no position on the matter of religion in public schools—one of the most frequently adjudicated modern establishment clause questions. Second, implementing the Framers' precise thinking, even if discernible, might jeopardize values now considered secured by the establishment clause. As Justice william j. brennan speculated in abington township school district v. schempp (1963), perhaps because the nation has become more religiously heterogeneous, "practices which may have been objectionable to no one in the time of Jefferson and Madison may today be highly offensive to … the deeply devout and the non-believers alike."

The varied ideologies that prompted the founders do, however, disclose a dominant theme: according constitutional status to religious liberty and the integrity of individual conscience. Moreover, one of the main practices seen by many Framers as anathema to religious freedom was forcing the people to support religion through compulsory taxation. Jefferson viewed this as "sinful and tyrannical," and Madison found it abhorrent to compel "a citizen to contribute three pence only of his property" to a religious cause. The founders recognized that although government subsidy of religion may not directly influence people's beliefs, it coerces citizens either to contribute to their own religions or, worse, to support sectarian doctrines antithetical to their convictions.

By its terms, the establishment clause applies only to the federal government (" Congress shall make no law.…"), but in Everson (1947) the Court ruled that the fourteenth amendment made the clause applicable to the states. Before then, only two Supreme Court decisions had produced any significant consideration of the establishment clause. Bradfield v. Roberts (1899) had upheld federal appropriations to a Roman Catholic hospital for care of indigent patients. Quick Bear v. Leupp (1908) had sustained federal disbursement of funds, held in trust for the Sioux Indians, to Roman Catholic schools designated by the Sioux for payment of tuition. Neither opinion, however, attempted any comprehensive definition of the nonestablishment precept, an effort first undertaken in Everson where the Court stated:

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 nonattendance. 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. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organization or groups and vice versa. 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."

Since then, there has been little agreement among the Justices, lower courts, and scholars as to what constitutes impermissible "aid" to, or "support" of, religion.

Beginning in the early 1960s and culminating in lemon v. kurtzman (1971), the Court developed a three-part test for reviewing establishment clause challenges: "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 government entanglement with religion." The Lemon test, despite its consistent invocation by the Court, has not been a model of coherence. Indeed, in an unusually candid obiter dictum in committee for public education v. regan (1980) the Court conceded that its approach "sacrifices clarity and predictability for flexibility," a state of affairs that "promises to be the case until the continuing interaction between the courts and the states … produces a single, more encompassing construction of the Establishment Clause." A better approach would read the establishment clause to forbid government action when its purpose is religious and it is likely to impair religious freedom by coercing, compromising, or influencing religious beliefs.

One of the nation's most politically divisive issues has been the proper place of religion in public schools. Decisions in the early 1960s, holding that prayer and Bible reading violate the establishment clause, precipitated serious efforts to reverse the Court by constitutional amendment. Later legislative proposals have sought to strip the federal courts of jurisdiction over cases challenging voluntary school prayer.

The first cases concerning religion in public schools involved released time. In mccollum v. board of education (1948) the Court invalidated an Illinois program of voluntary religious instruction in public school classrooms during school hours by privately employed teachers. Students whose parents signed "request cards" attended weekly classes in religion; others pursued secular studies elsewhere in the school during this period. The Court's opinion emphasized use of "the state's tax-supported public school buildings" and "the state's compulsory public school machinery." Four years later, in zorach v. clausen (1952), the Court upheld a New York City "off-premises" released time program. Released students attended classes at their respective religious centers; neither public funds nor public classrooms directly supported religion. In a much quoted and controversial passage, the Court observed: "We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary.… When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions."

Neither McCollum nor Zorach propounded any specific standard of review. a decade later, in engel v. vitale (1962), the Court invalidated a New York law providing for recitation of a state-composed prayer at the beginning of each public school day. Although the prayer was denominationally "neutral," and students could remain silent or leave the room, the Court declared that this "breaches the constitutional wall of separation between Church and State," because "it is no part of the business of government to compose official prayers."

The Court's approach soon underwent a dramatic revision. In Abington Township v. Schempp the Court held it unconstitutional for public schools to conduct daily exercises of reading student-selected passages from either the Old or New Testaments (without teacher comment) and recitation of the Lord's Prayer. Drawing on its rationale in the sunday closing cases (1961), the Court articulated a "test" for government action challenged under the establishment clause: "[W]hat are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." The Court ruled that the "opening exercise is a religious ceremony," emphasizing, however, that "objective" study of the Bible (presumably for its literary and historical value) was constitutionally permissible.

There are two difficulties with the Court's declared willingness—reaffirmed regularly since Schempp—to invalidate government action solely on the basis of a nonsecular "purpose." First, although Schempp emphasized the establishment clause's requirement of a "wholesome neutrality" by the state toward religion, the Court has also made clear that the Constitution does not mandate an "untutored devotion" to this precept. Indeed, it has sometimes held that the free exercise clause obliges government to act with a nonsecular purpose—actually, to give a preference to religion—when the action is necessary to permit the unburdened exercise of religion.

Second, despite the Schempp test's condemnation of laws whose purpose is to "advance religion," the Court in Zorach had previously conceded that the released time program upheld had a nonsecular purpose: facilitation of religious instruction. Zorach has been specifically reaffirmed since Schempp was decided. Thus, the Court itself is not fully committed to its articulated doctrine that a religious purpose alone is sufficient to invalidate government action.

Although both Engel and Schempp declared that religious coercion was irrelevant under the establishment clause, the Court has nevertheless often carefully analyzed the elements of coercion and influence in programs it has considered. For example, in Engel the Court remarked on "the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion." In Zorach, the Court emphasized its questionable conclusion that there was no "coercion to get public school students into religious classrooms." And in widmar v. vincent (1981), in requiring a state university to provide student religious groups equal access to its facilities, the Court noted: "University students are … less impressionable than younger students and should be able to appreciate that the university's policy is one of neutrality towards religion."

The Court's sensitivity to religious coercion and influence in establishment clause challenges, its doctrinal pronouncements to the contrary notwithstanding, comports with an approach that recognizes that in accommodating the values underlying both the establishment and free exercise clauses, a nonsecular purpose cannot always be avoided, and that the primary offense to the establishment clause is some meaningful intrusion upon religious liberty.

Nearly two decades elapsed between Schempp and the burger court's first major decision on religion in public schools. In Stone v. Graham (1980) a Kentucky statute required posting a copy of the Ten Commandments (purchased with private funds) in all public school classrooms, with the notation: "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the common law of the United States." Although the state court found that the legislature's purpose was not religious and sustained the law, the Supreme Court reversed.

The Stone opinion is significant for several reasons. First, it sheds further light on how the Court decides whether a legislative purpose is secular or religious. In Schempp, when the school board contended that the Bible reading program was not instituted for religious reasons (but rather to promote moral values, teach literature, and inspire student discipline), the Court brusquely replied that "surely, the place of the Bible as an instrument of religion cannot be gainsaid." In Stone, the Court stated that the Ten Commandments were not confined to "arguably secular matters" such as prohibition of murder and adultery but also prescribed religious duties such as observing the Sabbath and avoiding idolatry—adding that the law did not integrate the Bible or the commandments into an ethics, history, or comparative religion course. It quite peremptorily concluded that the program "serves no … educational function" and that "the Ten Commandments is undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact." Stone also reaffirms that a nonsecular purpose is itself enough to condemn a law under the establishment clause. Although the Court briefly considered the state program's potential for coercing or influencing children—observing that "if the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the school children to read, meditate upon, perhaps to venerate and obey, the Commandments"—it nevertheless held that the law lacked a secular purpose and was invalid on that basis alone. This doctrine was vigorously reinforced in wallace v. jaffree (1985), which invalidated an Alabama statute authorizing a period of silence in public schools "for meditation or voluntary prayer," because the law was "entirely motivated by a purpose to advance religion." (The Justices plainly indicated that only a slightly different statutory formulation "protecting every student's right to engage in voluntary prayer during an appropriate moment of silence during the school day" would pass constitutional muster.)

Although regulatory laws allegedly enacted to aid religion have generated only a few Supreme Court decisions, they have significantly affected establishment clause jurisprudence. In mcgowan v. maryland (1961) the Court upheld prohibition of the sale of most merchandise on Sundays. The Court conceded that the original purpose of Sunday closing laws was to encourage observance of the Christian Sabbath. But it found that, as presently written and administered, most such laws "are of a secular rather than of a religious character," seeking "to set one day apart from all others as a day of rest, repose, recreation and tranquility." The choice of Sunday, "a day of particular significance for the dominant Christian sects," did not "bar the state from achieving its secular goals."

McGowan emphasized that a Sunday closing law might violate the establishment clause if its purpose were "to use the State's coercive power to aid religion." This warning was fulfilled in epperson v. arkansas (1968), when the Court invalidated a law that excised the theory of human biological evolution from public school curricula. Reviewing the circumstances of its adoption in 1928, the Court found that "fundamentalist sectarian conviction was and still is the law's reason for existence."

Although Arkansas probably exceeded what the free exercise clause required for "accommodation" of fundamentalist religious doctrine, there was no indication that its anti-evolution statute coerced, compromised, or influenced school children to embrace fundamentalist doctrine. The Arkansas statute thus satisfied religious needs with no meaningful threat to religious liberty—the chief danger the establishment clause was intended to avoid. Yet, as in the Ten Commandments and moment-of-silence cases, a religious purpose alone proved fatal.

The Court first gave plenary consideration to the problem of public aid to church-related schools in Everson v. Board of Education (1947). A New Jersey township reimbursed parents for the cost of sending their children on public buses to and from schools, including Roman Catholic parochial schools. Although the Court asserted that "no tax … can be levied to support any religious activity or institution," it upheld the New Jersey program by a 5–4 vote. The majority conceded that without the program's subsidy some children might not be sent to church schools. But it reasoned that funding bus transportation for all pupils in both public and sectarian schools accomplished the "public purpose" of aiding parents in getting their children "safely and expeditiously to and from accredited schools." In this respect, New Jersey's aid program was similar to providing all schools with basic municipal services, such as fire and police protection. Furthermore, the state could not constitutionally exclude persons from its aid "because of their faith, or lack of it." (The Everson majority indicated that bus transportation might be the limit of permissible assistance.) The dissenters protested that the program aided children "in a substantial way to get the very thing which they are sent to [parochial schools] to secure, namely, religious training and teaching."

The Court did not again confront the issue of aid to church-related schools until board of education v. allen (1968). During the intervening two decades, the Court had developed the "secular purpose-secular effect" standard. Allen held that New York's lending secular textbooks, approved by local school boards, to all secondary school students, including those in church-related schools, had the secular purpose of furthering education and a primary effect that benefited students and parents, not religious schools.

The "excessive entanglement" prong of the Court's establishment clause test emerged two years later. walz v. tax commission (1970) rejected the claim that New York's tax exemption for "real or personal property used exclusively for religious, educational or charitable purposes" supported religion in violation of the establishment clause. After finding that the exemption had the nonreligious purpose of avoiding inhibition on the activities of charities and other community institutions, the Court continued: "We must also be sure that the end result—the effect—is not an excessive government entanglement with religion. The test is inescapably one of degree. Either course, taxation of churches or exemptions, occasions some degree of involvement with religion.… [The question is] whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement." The Court conceded that tax exemption accorded an indirect economic benefit to religion, but concluded that it gave rise to less government involvement than nonexemption. Taxing the churches would occasion "tax valuation of church property, tax liens, tax foreclosures, and the direct confrontations and conflicts that follow in the train of those legal processes."

In lemon v. kurtzman (1971) the Court returned to the problem of church-related schools. Rhode Island subsidized public and private school teachers of secular subjects (not to exceed fifteen percent of their salaries); parochial school teachers agreed not to teach religion during the subsidy. The legislature had found that "the quality of education available in nonpublic elementary schools has been jeopardized [by] rapidly rising salaries." Pennsylvania reimbursed nonpublic schools for the salaries of teachers of "secular" subjects such as mathematics, physical science, physical education, and foreign languages. Church-related schools maintained accounts, subject to state audit, that segregated the costs of "secular educational service." Reimbursement for religiously oriented courses was prohibited.

The Court held that both programs violated the establishment clause. It acknowledged a secular purpose, but reasoned that the states' efforts to avoid a primary effect that advanced religion produced "excessive entanglement between government and religion." In the Court's view, church-related elementary and secondary schools had as their mission the inculcation of religious doctrine, especially among "impressionable" primary school pupils. Continuing state evaluation of school records "to establish the cost of secular as distinguished from religious instruction," and the state "surveillance necessary to ensure that teachers play a strictly nonideological role" were "pregnant with dangers of excessive government direction of Church schools and hence of Churches." Although this "administrative" entanglement was fatal, both laws risked another sort of entanglement: their "divisive political potential" along religious lines, given the likely demand for continuing and ever increasing annual appropriations.

The excessive entanglement criterion has been prominent in establishment clause adjudication since 1970; but it does not represent a value that either can or should be judicially secured by the establishment clause. The major fear of administrative entanglement between government and religion is that state regulation impairs the ability of religious groups to pursue their mission. This concern, however, is unfounded both doctrinally and empirically. At least since pierce v. society of sisters (1925) it has been understood that the Constitution permits the state to regulate church-related institutions whether or not it provides them financial assistance. Parochial school curricula, for example, have long been regulated without significant evidence of infringement of religious values. And if there were, the regulation would be invalid whether or not tied to monetary aid.

Another form of administrative entanglement regularly occurs when the state seeks to distinguish religion from nonreligion in order to grant an exemption from civil regulations. Although government scrutiny of religious beliefs is a sensitive task, the need for that scrutiny springs from the Constitution's explicit definition of religion as a subject for special treatment.

Similar objections can be raised to using "avoidance of political strife along religious lines" as a criterion for establishment clause adjudication. Indeed, if government were to ban religious conflict in the legislative process, serious questions of First Amendment political liberty would arise. But practical considerations, more than doctrinal ones, demonstrate the futility of making "political divisiveness" a constitutional determinant. Legislation does not violate the establishment clause simply because religious organizations support or oppose it. Religious groups have frequently differed on secular political issues—gambling, obscenity, drug and gun control, prohibition, abolition of slavery, racial integration, prostitution, sterilization, abortion, birth control, divorce, the vietnam war, the equal rights amendment, and capital punishment, to name but a few. Churches and other religious groups have markedly influenced resolution of some of these matters. In the early 1980s, they actively debated the question of the nation's nuclear arms policy. Although a law may in fact promote a religious purpose, if the law serves genuinely secular ends—and impairs no one's religious liberty by coercing, compromising, or influencing religious beliefs—it should not be unconstitutional simply because its proponents and antagonists were divided along religious lines.

Moreover, even if government could or should eliminate religious fragmentation in the political arena, the establishment clause is an ineffective tool for the task. For example, forbidding aid to parochial schools does not effect a truce, but only moves the battleground; if children in parochial schools are excluded from school aid, their parents will tend to oppose increased funding of public schools.

The Court has viewed aid to church-related higher education more favorably than it has viewed aid to elementary and secondary schools. Tilton v. Richardson (1971), a companion case to Lemon, upheld federal construction grants to colleges for buildings and facilities that applicants agreed not to use for religious instruction. The government enforced this promise by on-site inspections. The Court easily found a secular purpose in the expansion of higher education opportunities. In reasoning that the subsidy's primary effect did not advance religion, it stated that, unlike elementary and secondary schools, church-related colleges were not "permeated" by religion. Their dominant motive is secular education; they normally afford a high degree of academic freedom for faculty and students; and their students are less susceptible to religious indoctrination than are school children. In sharp contrast to its generalized appraisal of parochial schools, the Court rejected a "composite profile" of a "typical sectarian" college. Instead, the Court found, on the record before it, that courses at the four recipient Roman Catholic institutions were taught according to professional academic standards. Moreover, the aid took the form of a one-time, single-purpose construction grant. Thus no appreciable governmental surveillance was required. Finally, the Court found the potential for "religious fragmentation in the political arena" lessened by the religious colleges' geographically diverse student bodies and the absence of religious affiliation of a majority of recipient colleges.

Decisions since Tilton have continued to sustain aid to religiously affiliated colleges. In Hunt v. McNair (1973) the Court upheld the use of South Carolina tax-exempt bonds to finance facilities for all colleges, so long as the facilities were limited to nonsectarian purposes. The Court placed the burden on those challenging the aid to establish that recipient colleges are "permeated" with religion. And in Roemer v. Board of Public Works (1976) the Court upheld Maryland grants of fifteen percent of the student cost in the state college system to all private colleges, if they certified that they used the funds for nonreligious purposes.

Subsequent decisions on aid to elementary and secondary schools have generally, but not unexceptionally, followed the path of Lemon. Meek v. Pittenger (1975) involved a program under which Pennsylvania lent instructional materials (such as maps, films, projectors, and laboratory equipment) to private schools, seventy-five percent of which were church-related. The Court agreed that the aid was ideologically neutral, but held that "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," it has the primary effect of advancing religion. The Court also invalidated "auxiliary services" (such as standardized testing, speech therapy, and psychological counseling) by public employees for private school children on their schools' premises: "To be certain that auxiliary teachers remain religiously neutral … the State would have to impose limitations … and then engage in some form of continuing surveillance to ensure that those restrictions were being followed." In addition to this "administrative entanglement," the Court observed that the program promised to generate "political entanglement" in the form of "continuing political strife." (The Court reaffirmed this holding as to auxiliary services in 1985 in the companion cases of Grand Rapids School District v. Ball and aguilar v. felton.)

Two years after Meek, Wolman v. Walter (1977) illustrated how constitutionality may turn on slight changes in form. The Court upheld Ohio's provision of (1) speech, hearing, and psychological diagnostic services by public employees on private school premises; (2) therapeutic and remedial services by public employees at a "neutral site off the premises" of the private school (even if in an adjacent mobile unit); and (3) payment for standardized tests used in private schools (the dispositive factor being that the tests were drafted and scored by public employees). The Court distinguished Meek on paperthin grounds relating to the closeness of the connection between the services provided and the religious school's educational mission and to the likelihood that public employees would "transmit ideological views" to children.

Wolman invalidated state payment for field trips of private school pupils, distinguishing Everson on the basis of the school's control over the expenditure of the funds and the close relation of the expenditure to the school's curriculum. The Court also invalidated a program for lending instructional materials to students, but, as in Meek, reaffirmed Allen and upheld lending students secular textbooks.

committee for public education v. regan (1980) upheld New York's reimbursing private schools for performing testing and reporting services mandated by state law. The tests were prepared by the state, but, unlike those in Wolman, some were administered and scored by private school personnel. Nevertheless, because the tests were mostly objective, the Court concluded that there was little risk of their religious use. The Court distinguished Levitt v. Committee for Public Education (1973), which had invalidated a similar New York statute because it did not provide for state audits to ensure that the public funds did not exceed the nonpublic school's actual cost. In Regan, the occasional audits were found adequate to prevent a religious effect but not so intrusive as to produce excessive entanglement.

As of the mid-1980s, the most effective way for government to assist elementary and secondary parochial schools is through the tax system. In committee for public education v. nyquist (1973) the Court invalidated a New York program, which the Court agreed had a "secular purpose," that gave tuition grants to low-income parents and tax relief to middle-income parents of children in private schools. The Court held that this had the effect of aiding the religious functions of sectarian schools. The Court distinguished Walz on several grounds. First, unlike the Nyquist programs, tax exemptions for church property had ample historical precedent, being "widespread during colonial days" and currently "in force in all 50 states." Second, although property tax exemption tended to lessen involvement between church and state, the programs in Nyquist tended to increase it. Finally, the tax exemption in Walz went to a broad class of charitable, religious, and educational institutions, but the record in Nyquist showed that eighty-five percent of the children benefited attended sectarian schools, practically all run by the Roman Catholic Church.

A decade later, in mueller v. allen (1983), the Court upheld a Minnesota program granting a state income tax deduction for parents with children in any nonprofit school, public or private. This deduction could be used for expenditures for tuition and transportation, as well as for textbooks and instructional materials and equipment (so long as they were not used to teach religion). The Court conceded that the "economic consequences" of the Minnesota program were "difficult to distinguish" from the New York program in Nyquist. But that it was difficult did not make it impossible. One difference the Court found was that Mueller involved "a genuine tax deduction," whereas the Nyquist tax credit was more like a direct grant than a tax benefit. The Court found most significant that the Mueller plan was available to all parents, not just those with children in private schools. Thus, the plan was "facially neutral" and its "primary effect" did not advance religion. The Court reached this conclusion even though ninety-six percent of the Minnesota deductions were taken by parents who sent their children to parochial schools—mainly Roman Catholic and Lutheran. As for the other four percent, there were only seventy-nine public school students who deducted tuition, which they paid because they attended public schools outside their districts for special reasons. Of course, children who attended public schools in their districts did get some deductions—for the cost of pencils, notebooks, and other incidentals not customarily provided.

The lesson to be drawn from all the elementary and secondary school decisions is that states wishing to provide significant financial assistance may do so simply by adopting the proper form. For example, New York could successfully revive its program invalidated in Nyquist by providing a tax benefit to all parents, including those whose children attend public schools, knowing that this would not appreciably increase the cost of the plan. But New York might be required to use the form of a tax deduction (rather than a tax credit or direct grant as in Nyquist), a difference of vital importance to parents with low incomes, who would obtain little benefit from a tax deduction.

Application of the Court's three-part test to the problem of government aid to religious institutions has generated ad hoc judgments incapable of being reconciled on a principled basis. The Court has assumed that the entire program of parochial schools is "permeated" with religion. But there is much dispute as to the facts. Some "secular" subjects in some parochial schools are unquestionably courses of religious indoctrination; other courses are truly secular; many probably fall between these polar characterizations. Thus, public aid incidentally benefits religion. But virtually all government services to church-related facilities—whether bus transportation, police and fire protection, sewage connections, sidewalks, tuition grants, or textbooks—incidentally benefit their sectarian functions by releasing church funds for religious purposes.

The critical inquiry should be whether direct or indirect government assistance to parochial schools exceeds the value of the secular educational service the schools render. If it does not, there is no use of tax-raised funds to aid religion, and thus no danger to religious liberty. This inquiry differs from the Court's approach, which has often invalidated laws with secular purposes because of their effects in advancing religion. A state program with both a secular purpose and a secular effect does not threaten values underlying the establishment clause. Furthermore, when the Court invalidates such a law simply because it incidentally furthers religious interests, the Justices assert the power to assess the multiple impacts of legislation, to separate religious from secular effects, and then to determine which are paramount. Ultimately the Justices must then rely on their own subjective notions of predominance.

In the mid-1980s, the Court was twice confronted with the problem of government practices that specifically acknowledge religion. marsh v. chambers (1983) upheld Nebraska's paying a chaplain to open each legislative session with a prayer. Proceeding unusually, the Court did not apply its three-part test. Rather, it relied first on history and tradition—pointing out that paid legislative chaplains and opening prayers existed in the Continental Congress, the First Congress, and every Congress thereafter, as well as in most states today and in colonies such as Virginia and Rhode Island, both of which were bastions of religious liberty. Second, the Court rested on the intent of the Framers, noting that just three days after the First Congress had authorized paid chaplains it approved the Bill of Rights; this made it difficult to believe that the Framers could conceive of the establishment clause as prohibiting legislative chaplains. Thus, the practice survived challenge even though Nebraska's purpose was unquestionably religious and the Court's doctrine is that such purpose alone produces an establishment clause violation.

A year later, in lynch v. donnelly (1984), the Court sustained Pawtucket, Rhode Island's inclusion of a nativity scene in the city's annual Christmas season display. The cost was nominal, unlike the $320 expended monthly for Nebraska's chaplain in Marsh. The Court reasoned that the purpose and effect were not exclusively religious but, rather, that "the creche in the display depicts the historical origins of this traditional event long recognized as a National Holiday." The opinion also emphasized that our history was replete with government recognition of religion's role in American life and with government expressions of religious belief. As examples, it pointed to presidential proclamations of national days of prayer and of Thanksgiving and Christmas as national holidays, public funding of a chapel in the Capitol and of chaplains in the legislature and in the military, "In God We Trust" as our statutorily prescribed national motto, the language "One Nation under God" as part of the Pledge of Allegiance, and the plethora of religious paintings in publicly supported galleries and in public buildings. Stating that "this history may help explain why the Court consistently has declined to take a rigid, absolutist view of the Establishment Clause," the Court strongly suggested that all these deeply ingrained practices were constitutional.

The final important church-state separation issue concerns the tension between the First Amendment's two religion clauses, one forbidding government to promote or "establish" religion, the other forbidding government to abridge the "free exercise" of religion. As observed in Walz, both "are cast in absolute terms, and either … if expanded to a logical extreme, would tend to clash with the other." Charting a course that offends neither provision presents a continual challenge for the Court; yet its few direct confrontations with the problem have been unsatisfying.

The two most celebrated free exercise clause decisions illustrate the inherent conflict. In sherbert v. verner (1962) a Seventh-Day Adventist was discharged by her employer because she would not work on Saturday, her Sabbath. South Carolina denied her unemployment compensation for refusing "suitable work," that is, a job requiring Saturday labor. The Court held that this denial violated the free exercise clause by conditioning benefits on a violation of her religious faith. Although the Court's decision implements the free exercise clause, the purpose of its ruling—like the purpose of the released time program in McCollum—is clearly to facilitate religious practice. Thus, the exemption required by the Court in the name of the free exercise clause appears to violate the Court's establishment clause doctrine, which renders invalid any government action with a nonsecular purpose. The Court's conclusory response was that "plainly we are not fostering the "establishment' of the Seventh-day Adventist religion" but rather governmental "neutrality in the face of religious differences."

In wisconsin v. yoder (1971) the Court held that application of school attendance requirements to the Old Order Amish violated the free exercise clause. In characterizing this as an "accommodation" for the Amish, the Court rejected the contention that this religious exemption violated the establishment clause: "The purpose and effect of such an exemption are not to support, favor, advance or assist the Amish, but to allow their centuries-old religious society … to survive free from the heavy impediment compliance with the Wisconsin compulsory-education law would impose."

In thornton v. caldor, inc. (1985), however, the Court ruled that a state had gone too far in "accommodating" religion. It held that a Connecticut law that required employers to give a day off to employees on their Sabbath, "no matter what burden or inconvenience this imposes on the employer or fellow workers," had the "primary effect" of advancing "a particular religious practice" and thus violated the establishment clause. The Court emphasized the "absolute and unqualified right not to work" afforded the employees, although this appeared to be little different from the exemption that the Court itself had ordered in Sherbert.

Although there is considerable overlap in the purposes of the establishment and free exercise clauses—their central function being to secure religious liberty—the decisions disclose that each has an identifiable emphasis. In the main, the free exercise clause protects adherents of religious faiths from secularly motivated laws whose effect burdens them because of their particular beliefs. When the Court finds a violation of the free exercise clause, the law is normally held invalid as applied; all that is required is an exemption for the claimant from the law's otherwise proper operation. In contrast, the principal thrust of the establishment clause concerns religiously motivated laws that pose the danger to believers and nonbelievers of being required to support their own religious observance or that of others. When the Court finds a violation of the establishment clause, ordinarily the offensive provision is entirely invalid and may not be enforced at all.

A better approach would reconcile the conflict between the clauses by interpreting the establishment clause to forbid only those laws whose purpose is to favor religion, and then only if such laws tend to coerce, compromise, or influence religious beliefs. Under this standard, the religious exemption that the Court required in Sherbert would itself be unconstitutional because it impairs religious liberty by supporting religion with funds raised by taxation. Although the core value of religious liberty may forbid government to interfere with Sherbert's practice of Seventh-Day Adventism, it similarly forbids forcing other citizens to subsidize a religious practice. On the other hand, the proposed alternative approach probably would not change the result in Yoder; it is doubtful that exempting the Amish from the compulsory education law (or giving employees a day off on their Sabbath, as in Thornton) would tend to coerce, compromise, or influence religious choice. Finally, the alternative approach would distinguish Yoder from those decisions—such as McCollum, Engel, and Schempp—that have invalidated religious practices in public schools. Neither these programs nor the exemption in Yoder had a "secular" purpose. But, unlike Yoder and Thornton, the public school programs threatened religious liberty and were thus properly held to abridge the constitutional separation of church and state.

Jesse H. Choper
(1986)

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