The Meaning of the First Amendment

[Paul]

In Roemer v. Board of Public Works of Maryland, 1976, the Court again struggled with setting out a decision in a manner consistent with precedent. One section of the decision is devoted to reviewing many precedent cases in an effort to demonstrate overall consistency in the Court's rulings on state aid to private schools, without particular relevance to Roemer, but seemingly for the sake of overall appearance. However, the explanations that follow regarding consistency on the issues in Roemer at times appear vague and confusing, and the nature of the actual quotes set out below should be noted.

At issue in Roemer was whether a 1971 statute granting aid to private institutions of higher learning violated the Establishment Clause, as four of the colleges benefited were actually associated with the Roman Catholic Church.

Under the statute, the state made payments to private institutions of higher learning based on the number of enrolled students, “excluding those in seminarian or theological academic programs.” The grant could not be used for sectarian purposes. The Maryland Council for Higher Education 1) determined whether a school was eligible or was “one awarding primarily theological or seminary degrees;” 2) required the schools did not use the funds for sectarian purposes. The schools filed annually a “Utilization of Funds Report” on the the aid related to nonsectarian expenditures, subject to the Council's verification. The chief executive officer of the school filed an affidavit with the application for funds, stating they would not be used for sectarian purposes.

The schools had to be accredited and received on a per student basis grant amounts equal to 15% of Maryland's appropriation program for the state college system. The State Board of Public Works administered the program, assisted by the Maryland Council for Higher Education, which retained primary responsibility.

The first part of the Lemon Test, that the aid must have a secular purpose, was not challenged, as the purpose of the statute was to support “private institutions generally as an economic alternative to a wholly public system.”

The Court found the statute in compliance with the second part of the Lemon Test, that the aid must have a primary effect other than the advancement of religion. The Court agreed with the findings of the lower court, that the Roman Catholic colleges were not pervasively sectarian. Despite the formal affiliation of these colleges with the Roman Catholic Church, they were “characterized by a high degree of institutional autonomy.” None received funds or made reports to the Church. Although Church representatives were on the governing board, there was no record of Church considerations in their decisions. The colleges employed Roman Catholic chaplains and held religious exercises on campus, but attendance was not required. Encouragement of spiritual development was secondary and never consisted of more than providing opportunities or occasions for a religious experience. Indoctrination was not substantial. Mandatory religion or theology classes were taught by Roman Catholic Clergy only as a supplement of the liberal arts program and had an atmosphere of intellectual freedom without pressures. Some classes began with prayer, but there was no general policy to encourage it. Courses were taught according to “academic requirements intrinsic to the subject matter and the individual teacher's concept of professional standards.” Faculty hiring decisions were not made on a religious basis.

Thus, the Court held that the colleges were not “so permeated by religion that the secular side could not be separated from the sectarian.” And the lower court found the funds were only extended to the secular side of the colleges.

The Court also found the Maryland statute did not create excessive entanglement between the government and the colleges.The Court conceded that the excessive entanglement issue of the case was difficult, but noted that this part of the Lemon Test was not an exact science. The Court emphasized the character of the institutions, as fully described in reviewing the secular effect issue, and that “the colleges perform essentially secular functions...that are distinct and separate from religious activity...important for the purpose of the entanglement test, because it means that secular activities, for the most part, can be taken at face value.” As there was little risk that an ostensibly secular activity, such as the study of biology or a foreign language, will be infused with religious content or significance, the need for surveillance was reduced. The Court agreed with the finding of the lower court that there was no need for close surveillance , and that “'excessive entanglement' does not necessarily result from the fact that the subsidy is an annual one.”

The Court noted that in Tilton v. Richardson, 1971, the fact that the grants were a one time, single purpose provision, not a continuing financial relationship, was upheld as significant in not finding excessive entanglement, but surely the fundamental question for this case was whether it was more like Tilton or Lemon v. Kurtzman, 1971. And it had to be held that the case was more like Tilton.

It is true that the Court favored the "one-time, single-purpose" construction grants in Tilton because they entailed "no continuing financial relationships or dependencies, no annual audits, and no government analysis of an institution's expenditures." 403 U.S. At 403 U. S. 688(plurality opinion). The present aid program cannot claim these aspects. But if the question is whether this case is more like Lemon I or more like Tilton-- and surely that is the fundamental question before us -- the answer must be that it is more like Tilton.

In both Tilton and Hunt v. McNair, 1973, the state aid applied to building and maintaining facilities devoted to secular use, but in this case, “as...noted, the secular and sectarian activities of the colleges are easily separated.” In Lemon, the aid was to elementary and secondary schools, with students at an impressionable age. The schools were supervised by the Roman Catholic diocese, with the local parish having ultimate financial responsibility, with principals appointed by church authorities, with teachers instructed by the “Handbook of School Regulations, and with religion pervading the school system. Thus, the state could not identify and subsidize separate secular functions of the school without on site inspections.

The Court also reviewed whether the aid created political divisiveness. The Court found that although the aid was annual, which also aggravated dependency, political divisiveness is substantially less when the schools are not elementary or secondary but colleges, as the student body is not local but diverse and widely dispersed. Further, the substantial autonomy of the colleges mitigated political divisiveness, and more than two-thirds of the colleges benefited did not have religious affiliation.

The Court rejected the argument that the similarity of the aid to the precedent cases of Lemon, Nyquist, Levitt, should be controlling in reaching a decision, rather than the character of the institution. However, the Court disagreed, and held the character of the institution is controlling.

Once again, appellants urge that this case is controlled by previous cases in which the form of aid was similar (Lemon I, Nyquist, Levitt), rather than those in which the character of the aided institution was the same (Tilton, Hunt). We disagree. Though indisputably relevant, see Lemon I, 403 U.S. At 403 U. S. 623-624, the annual nature of the aid cannot be dispositive. On the one hand, the Court has struck down a "permanent," nonannual tax exemption, reasoning that "the pressure for frequent enlargement of the relief is predictable," as it always is. Committee for Public Education v. Nyquist, 413 U.S. at413 U. S. 797. On the other hand, in Tilton, it has upheld a program for "one-time, single-purpose" construction grants, despite the fact that such grants would, in fact, be "annual," at least insofar as new grants would be annually applied for. 403 U.S. At 403 U. S. 688. See Lemon I, 403 U.S. At 403 U. S. 669 (opinion of WHITE, J.). Our holdings are better reconciled in terms of the character of the aided institutions, found to be so dissimilar as between those considered in Tilton and Hunt, on the one hand, and those considered in Lemon I, Nyquist, and Levitt, on the other.

Justices Brennan and Marshall, in dissenting, noted that the public aid did advance religion, not matter what vigilance was exercised to avoid it. The aid subsidizes religious institutions with public money, which violates separation of church and state.

Justice Stewart, in dissenting, noted that theology courses at the colleges in question were required, and the religious or theology departments were staffed by clerics of the affiliated church. No amount of academic freedom ensures that there were no overtones of religious indoctrination. Thus, there is a significant difference with Tilton, which involved grants merely for facilities.

Justice Stevens, in dissenting, emphasized “the pernicious tendency of a state subsidy to tempt religious schools to compromise their religious mission without wholly abandoning it. The disease of entanglement may infect a law discouraging wholesome religious activity as well as a law encouraging the propagation of a given faith.”

Final Note

In Lemon, the Court held that the First Amendment was intended to protect against the evil of political division on religious lines. The Court noted that the government becomes excessively entangled with religion, when a law creates political divisiveness, which could be merely assumed in cases of state aid to religious schools. In Roemer, the Court again merely assumed there is no political divisiveness when the schools involved are colleges or universities, having substantial autonomy, as well as a diverse and widely dispersed student body. However, can these positions actually be supported as a matter of evidence and historical record?

In Roemer, the Court found that textbooks on subjects such as biology or foreign languages are obviously secular. As reviewed previously, the Court had already taken this position in Board of Education v. Allen, 1968, but Justices Douglas and Fortas objected in dissent that even these textbooks can be used to promote religious doctrine. In Epperson v. Arkansas, 1968, the Court held that biology textbooks could not be restricted to excluding mankind's descent from a lower order of animals. Based on Epperson, a District Court held in Kitzmiller v. Dover Area School District, 2005, that the concept of intelligent design of creation could not be taught in a science class. Has the Court been consistent in these rulings? Then, has the Court through these cases in essence ordered that textbooks must promote the views of Secular Humanism in science, or they are unconstitutional for use in public schools? Then, has the Court correctly held in these cases that there is no need for surveillance in the use of these textbooks, and therefore, no excessive entanglement between church and state?

In the quotes set out above for Roemer, the Court found as significant in Tilton, that the state aid to schools was a one time provision, in holding there was not excessive entanglement between church and state. However, the Court did not find as significant in Roemer, the fact that the aid was continuing, because the case was more like Tilton than Lemon, which was the fundamental question. Does this position make sense? The Court went on to note, as set out in the second quote, that in considering precedent the issue was not the similarity of the aid but the character of the institution, and then, immediately reviewed the nature of the aid, comparing it to Tilton, and asserting that the aid in that case was not actually a one time provision. Does this type of reasoning explain why Roemer has a section on a general review of the consistency of prior opinions, which apparently has no real significance to the issues of this case?

M. Paul Webb
Copyright

[Paul]

In prior cases, the Court had often made reference to the difficulty in maintaining consistency in reaching decisions on the Religion Clauses. In Walz v. Tax Comm'n, 1970, the Court noted that precedent had to be inconsistent in order to uphold the true purpose of the First Amendment, as the founding fathers did not draw up the language with precision. In Committee for Public Education v. Nyquist, 1973, the Court noted that differences of opinion among the justices should be expected, as the Religion Clauses involved such perplexing problems; however, the former decisions were based on thorough and thoughtful scholarship by the most respected former justices, and on religious issues, it was actually prudent not to become entangled by precedent.

Wolman v. Walters, 1977, provided another example of the awkward struggle to finding agreement within the Court on the significance of what the founding fathers, allegedly, had written so inadequately. Note the following quote from the beginning of the Wolman decision, touching on the patchwork of concurrence and dissent between the justices.

MR. JUSTICE WHITE and ME. JUSTICE REHNQUIST concurred in the judgment with respect to textbooks and testing and scoring (as well as diagnostic and therapeutic services) for the reasons stated in Meek v. Pittenger, 421 U. S. 349, 421 U. S. 387(REHNQUIST, J., concurring in judgment in part, dissenting in part), and Committee for Public Education v. Nyquist, 413 U. S. 756, 413 U. S. 813 (WHITE, J., dissenting). P.433 U. S. 255.

BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, V, VI, VII, and VIII, in which STEWART and STEVENS, JJ., joined; in which, as to Part I, BURGER, C.J., and BRENNAN, MARSHALL, and POWELL, JJ., also joined; in which, as to Part V, BURGER, C.J., and MARSHALL and POWELL JJ., also joined; in which, as to Part VI, BURGER, C.J., and POWELL, J., also joined; in which, as to Parts VII and VIII, BRENNAN and MARSHALL, JJ., also joined; and an opinion with respect to Parts II, III, and IV, in which BURGER, C.J., and STEWART and POWELL, JJ., joined. BURGER, C.J., dissented in part. BRENNAN, J.,post, p. 433 U. S. 255, MARSHALL, J., post, p. 433 U. S. 256, and STEVENS, J. post, p. 433 U. S. 264; filed opinions concurring in part and dissenting in part. POWELL, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, post, p. 433 U. S. 262. WHITE and REHNQUIST, JJ., filed a statement concurring in the judgment in part and dissenting in part, post, p. 433 U. S. 255.

MR. JUSTICE BLACKMUN delivered the opinion of the Court (Parts I, V, VI, VII, and VIII), together with an opinion (Parts II, III, and IV), in which THE CHIEF JUSTICE, MR. JUSTICE STEWART and MR. JUSTICE POWELL joined.

At issue in Wolman was whether an Ohio statute for specified forms of aid to non-public schools, drafted carefully around the language of Supreme Court precedent, violated the Establishment Clause in whole or in part? The statute designated aid for: 1. secular textbooks; 2. standardized testing; 3. speech and hearing diagnostic services; 4. therapeutic guidance to students in need of specialized attention; 5. instructional materials and equipment, such as used in public schools and incapable of diversion to religious use; 6. field trip transportation, such as provided by public schools.

According to the statute, the amount expended on aid per pupil could not exceed that spent for students in public schools. Of the 720 chartered schools in Ohio in 1974-75, only 29 were sectarian, but 96% of nonpublic enrollment was in religious schools, and more than 92% was in Catholic schools, under the supervision of a bishop, with the majority of staff members of the Catholic faith.

The Court held that the statute did satisfy the first prong of the Lemon test, in having a secular legislative purpose, by protecting the health of the state's youth, and by providing a fertile educational environment for all school children.

1. The Court found that the textbooks by statute were loaned to the students or their parents and were the same as those used in public schools. The provision of the textbooks by the state was consistent with the conditions set in Meek v. Pittenger, 1975, and Board of Education v. Allen, 1968. They declined to overrule these cases.

2. Regarding standardized tests and scoring services to measure student progress in secular subjects, as nonpublic school personnel were not involved in drafting the tests or scoring, and as the statute did not authorize any payments to nonpublic schools on the costs involved, the Court held no aid was given to religion.

3. Regarding speech and hearing diagnostic services, the Court held this type of aid was constitutional, being secular, neutral, and non-idealogical in nature. In Meek, the Court held these services as unconstitutional, only because they could not be separated in the language of the statute reviewed in the case from the teaching and counseling provided.

4. Regarding therapeutic guidance for students needing specialized attention, the Court found that by the statute the personnel involved were employees of the state, providing the services only in public schools and centers, or mobile units located off the nonpublic school premises. The Court held that because the services were offered at truly religiously neutral locations, no danger existed that the employed personnel might have transmitted religious instruction or have advanced religious beliefs. In Meek, the Court held this danger was present, because of the pressure of the environment, but in this case, the institutions where services were performed were not religious.

5. Regarding instructional materials and equipment, the statute under review authorized funds for such “of the kind in use in the public schools...'incapable of diversion to religious use,'” to be loaned to students or their parents on request. However, the Court noted the very purpose of sectarian schools is “to a large extent devoted to the inculcation of religious values and belief,” and “Substantial aid to the educational function of such schools, accordingly, necessarily results in aid to the sectarian enterprise as a whole. '[T]he secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined,'” (citing Lemon v. Kurtzman, 1971). Thus, this part of the statute inescapably has “the primary effect of providing a direct and substantial advancement of the sectarian enterprise.”

The argument was set before the Court, that a significant difference existed in this case from Meek, wherein the material and equipment were loaned directly to the nonpublic school, rather than to the pupil or parent. However, the Court held that despite the technical change made in the statute, the substance of the program was the same, with material and equipment provided that could be used for a sectarian function, and with no guarantee otherwise.

6. Regarding field trip transportation and services, the lower court held this feature of the statute as indistinguishable from the busing of students in Everson v. Board of Education, 1947. However, the Court found in this case under review, that there were no restrictions on the timing of the trips, and the choice of destination was made by the nonpublic school teacher. In Everson, the expenditure of funds for transportation was unrelated to the content of the curriculum and was not in any way under the control of the nonpublic school. Every student made one round trip every day, in a manner analogous to police protection being provided to every child on their way to and from school. With the Ohio statute under review, the nonpublic school controlled the timing, frequency, and destinations of the trips. The secular nature of the trips could only be ensured by close supervision of nonpublic school teachers.

The Court summarized the positions of their decisions as follows.

In summary, we hold constitutional those portions of the Ohio statute authorizing the State to provide nonpublic school pupils with books, standardized testing and scoring, diagnostic services, and therapeutic and remedial services. We hold unconstitutional those portions relating to instructional materials and equipment and field trip services.

Justice Brenan, in concurring in part and dissenting in part, noted that the Ohio statute was fashioned to avoid an effect or entanglement condemned by the Establishment Clause, which should be viewed as nullifying “'sophisticated as well as simple minded'... attempts to avoid its prohibitions,”Lane v. Wison, 1939. In the case under review subsidy to the sectarian schools amounted to $88,800,000, a factor which was not evaluated by the Court, and which compelled “the conclusion that a divisive political potential of unusual magnitude inhere in the Ohio program. This sufficed without more to require the conclusion that the Ohio statute in its entirety offended the First Amendment's prohibition against laws 'respecting an establishment of religion,'” (citing Meek, and Lemon.

Justice Marshall, in concurring in part and dissenting in part, focused on the purpose of the sectarian school, which he quoted from Meek.

"The very purpose of many of those schools is to provide an integrated secular and religious education; the teaching process is, to a large extent, devoted to the inculcation of religious values and belief. . . . Substantial aid to the educational function of such schools, accordingly, necessarily results in aid to the sectarian school enterprise as a whole. '[T]he secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined.' [Lemon v. Kurtzman, supra at 403 U. S. 657] (opinion of BRENNAN, J.)."

Justice Marshall noted the recognition the decision of the Court gave to a tension existing between Meek and Allen, which he asserted should be resolved by overruling the latter. Allen upheld textbook loan programs on the assumption that sectarian schools have both a secular and religious function. Meek rejected that assumption in disallowing the loaning of secular teaching materials and equipment. However, Allen actually reduced the “'high and impregnable' wall between church and state'... to a 'blurred, indistinct, and variable barrier, Lemon... incapable of performing its vital functions of protecting both church and state.'”

And Meek ”left the rationale of Allen undamaged only if there is a constitutionally significant difference between a loan of pedagogical materials directly to a sectarian school and a loan of those materials to students for use in sectarian schools.” However, the Wolman decision decisively demonstrated that no such difference exists.

However, Allen also has been undercut by the divisive political potential of aid to sectarian schools. Lemon recognized “the danger that the need for annual appropriations of larger and larger sums would lead to 'political fragmentation and divisiveness on religious lines.'”

Justice Marshall agreed that the diagnostic services related to children's health and should be allowed. However, he found that therapeutic services have a psychological nature and actually assist the educational function of the schools. And he found that although standardized testing is clearly non-idealogical, its legitimacy should be questioned, unless its use ensures certain standards being met.

Justice Powell, in concurring in part and dissenting in part, noted that the decisions of the Court in drawing lines on religious issues must seem arbitrary. The decisions would be more tidy, if the Court accepted the broadest implications of the principle from Meek, that substantial aid to sectarian schools results in support to the enterprise as a whole. Then, state aid of any kind would be impossible, and both Meek and Allen would have to be overruled. However, the Court has not yet “thought such a harsh result is required by the Establishment Clause.”

It is actually in the public interest for Parochial schools to provide competition with public schools; to help relieve the tax burden of public school operation; and to give parents an educational alternative. When the Establishment Clause was written, the Framers sought to protect the nation's democratic processes from denominational control and to prevent deep political division along religious lines. However, in the 20th century, these risks seem remote and must be viewed in light of the positive contributions the sectarian schools made to society. The Court sets out principles which preserve the safeguards of the Establishment Clause, without resorting to blind absolutism, in overseeing sectarian schools. Thus, the risks of giving some aid to sectarian schools seems tolerable.

In respect to loans of secular instructional material and equipment, Meek did not hold that such inescapably has the primary effect of advancing the sectarian enterprise. Otherwise, Allen would have been overruled. As long as this material and equipment is incapable of diversion to religious use, it is permissible, and as long as the loan is to students or their parents, and not to the sectarian institution.

However, the Ohio statute under consideration included providing materials such as wall maps, charts, and other classroom paraphernalia, which cannot be held as a loan to individuals. As the language on this aspect of the aid cannot be separated from the provisions for instructional material and equipment in general, the statute cannot be sustained according to precedent.

Justice Stevens, in concurring in part and dissenting in part, began by quoting Clarence Darrow in the Scopes case, and then noting that all aid supporting any religious activities or aid violated the Establishment Clause.

"The realm of religion . . . is where knowledge leaves off, and where faith begins, and it never has needed the arm of the State for support, and wherever it has received it, it has harmed both the public and the religion that it would pretend to serve”...
I would adhere to the test enunciated for the Court by Mr. Justice Black: "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." Everson v. Board of Education...

This Court's efforts to improve on the Everson test have not proved successful. "Corrosive precedents" [Footnote 3/5] have left us without firm principles on which to decide these cases. As this case demonstrates, the States have been encouraged to search for new ways of achieving forbidden ends. See Committee for Public Education v. Nyquist, 413 U. S. 756, 413 U. S. 785, 413 U. S. 797. What should be a "high and impregnable" wall between church and state, [Footnote 3/6] has been reduced to a "blurred, indistinct, and variable barrier,'" ante at 433 U. S. 236. The result has been, as Clarence Darrow predicted, harm to "both the public and the religion that [this aid] would pretend to serve." [Footnote 3/7]

Final Note

The dissenting opinions of Wolman essentially focus on whether it is time to hold that any aid whatsoever to a religious school is a violation of the Establishment Clause. The dissenting justices question why some aid has been allowed. Even Justice Powell noted that all aid to sectarian schools technically is unconstitutional, but allowed only as the Court has established extenuated ways of protecting society from the dangers of their influence, in order to preserve their benefits.

However, has the Court up to this point refrained from denying all aid to sectarian schools, as doing so would have been too obvious a contradiction of American history? In overturning prior decisions, the Supreme Court often relies on lines of reasoning set out in earlier dissenting opinions, a respected part of the doctrine of Stare Decisis, (reviewed in the last post of page two of the thread). Is the Wolman decision part of a process of establishing a body of dissenting opinions, while waiting on an acceptance of the secular world view as tradition in the public schools, in order to eliminate in the future any and all aid to sectarian schools? Is the only way to resolve all the inconsistency of the decisions on the Religion Clauses as Justice Powell asserts, to deny all aid to sectarian schools? However, what if these inconsistencies arise only because the original intended meaning of the First Amendment is something other than the concept of “Separation of Church and State,” as defined in particular by the Court in 1947 and set into law in Everson v. Board of Education?

M. Paul Webb
Copyright

[Paul]

Stone v. Graham, 1980, is particularly interesting in noting the following quote from the Supreme Court on why posting the Ten Commandments in public school classrooms should not be permissible.

If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments.

This case arose under a Kentucky statute to have the Ten Commandments posted in public school classrooms. The statute read —

(1) It shall be the duty of the superintendent of public instruction, provided sufficient funds are available as provided in subsection (3) of this Section, to ensure that a durable, permanent copy of the Ten Commandments shall be displayed on a wall in each public elementary and secondary school classroom in the Commonwealth. The copy shall be sixteen (16) inches wide by twenty (20) inches high.

(2) In small print below the last commandment shall appear a notation concerning the purpose of the display, as follows: '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.'

(3) The copies required by this Act shall be purchased with funds made available through voluntary contributions made to the state treasurer for the purposes of this Act.
1978 Ky. Acts, ch. 436, § 1 (effective June 17, 1978), Ky.Rev.Stat. § 158.178 (1980).

Note by the statute that the Commandments were to be purchased with private funds, and that the display was to include a notation in small print at the bottom, stating its purpose as secular, in representing "the fundamental legal code of Western Civilization and the Common Law of the United States."

At issue was whether the Kentucky statute on posting the Ten Commandments in public school classrooms violated the Establishment Clause of the First Amendment.

The Court held that the posting of the Ten Commandments in public school classrooms had no secular, legislative purpose. However, the preeminent purpose of the displays was plainly religious in nature. Merely stating that the posting of the Commandments have a secular purpose was not sufficient to avoid conflict with the Establishment Clause. The private financing of the displays was irrelevant, as the posting was done under the auspices of the state legislature.

The preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, [Footnote 3] and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. See Exodus 20:12-17; Deuteronomy 5:16-21. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day. See Exodus 20:1-11; Deuteronomy 5:6-15.

This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like. Abington School District v. Schempp, supra at 374 U. S. 225. Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.

Justice Renhquist dissented.

With no support beyond its own ipse dixit [Latin, he himself said it], the Court concludes that the Kentucky statute involved in this case "has no secular legislative purpose," ante at 449 U. S. 41 (emphasis supplied), and that "[t]he preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature," ibid. This even though, as the trial court found, "[t]he General Assembly thought the statute had a secular legislative purpose, and specifically said so." App. to Pet. for Cert. 37. The Court's summary rejection of a secular purpose articulated by the legislature and confirmed by the state court is without precedent in Establishment Clause jurisprudence. This Court regularly looks to legislative articulations of a statute's purpose in Establishment Clause cases and accords such pronouncements the deference they are due.

To support the position quoted above, Justice Renhquist cited the following precedent.

See, e.g., Committee for Public Education v. Nyquist, 413 U. S. 756, 413 U. S. 773 (1973) ("we need touch only briefly on the requirement of a secular legislative purpose.' As the recitation of legislative purposes appended to New York's law indicates, each measure is adequately supported by legitimate, nonsectarian state interests"); Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 613 (1971) ("the statutes themselves clearly state they are intended to enhance the quality of the secular education"); Sloan v. Lemon, 413 U. S. 825, 413 U. S. 829-830 (1973); Board of Education v. Allen, 392 U. S. 236, 392 U. S. 243 (1968). See also Florey v. Sioux Falls School District, 619 F.2d 1311, 1314 (CA8) (upholding rules permitting public school Christmas observances with religious elements as promoting the articulated secular purpose of "advanc[ing] the student's knowledge and appreciation of the role that our religious heritage has played in the social, cultural and historical development of civilization"), cert. denied, post, p. 987. The fact that the asserted secular purpose may overlap with what some may see as a religious objective does not render it unconstitutional. As this Court stated in McGowan v. Maryland, 366 U. S. 420, 366 U. S. 445 (1961), in upholding the validity of Sunday closing laws, "the present purpose and effect of most of [these laws] is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the state from achieving its secular goals."

Abington School District v. Schempp, 374 U. S. 203 (1963), repeatedly cited by the Court, is not to the contrary. No statutory findings of secular purpose supported the challenged enactments in that case.

Justice Renhquist continued.

The Court rejects the secular purpose articulated by the State because the Decalogue is "undeniably a sacred text," ante at 449 U. S. 41. It is equally undeniable, however, as the elected representatives of Kentucky determined, that the Ten Commandments have had a significant impact on the development of secular legal codes of the Western World....

The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin. This Court has recognized that "religion has been closely identified with our history and government," Abington School District, supra at 374 U. S. 212, and that "[t]he history of man is inseparable from the history of religion," Engel v. Vitale, 370 U. S. 421, 370 U. S. 434 (1962)...

The words of Justice Jackson, concurring in McCollum v. Board of Education, 333 U. S. 203, 333 U. S. 235-236 (1948), merit quotation at length:
"I think it remains to be demonstrated whether it is possible, even if desirable, to comply with such demands as plaintiff's completely to isolate and cast out of secular education all that some people may reasonably regard as religious instruction. Perhaps subjects such as mathematics, physics or chemistry are, or can be, completely secularized. But it would not seem practical to teach either practice or appreciation of the arts if we are to forbid exposure of youth to any religious influences. Music without sacred music, architecture minus the cathedral, or painting without the scriptural themes would be eccentric and incomplete, even from a secular point of view. . . . I should suppose it is a proper, if not an indispensable, part of preparation for a worldly life to know the roles that religion and religions have played in the tragic story of mankind. The fact is that, for good or for ill, nearly everything in our culture worth transmitting, everything which gives meaning to life, is saturated with religious influences, derived from paganism, Judaism, Christianity -- both Catholic and Protestant -- and other faiths accepted by a large part of the world's peoples. One can hardly respect the system of education that would leave the student wholly ignorant of the currents of religious thought that move the world society for a part in which he is being prepared."

Final Note

Has the Supreme Court ruled in Stone v. Graham, that it is unconstitutional for students in the public schools to consider the role religion played in the founding of the United States of America?

M. Paul Webb
Copyright

[Paul]

In Larkin v. Grendel's Den, Inc. 1982, the Court found as highly offensive to the Constitution a Massachusetts statute which substituted "the unilateral and absolute power of a church for the reasoned decison making of a public legislative body."

The Court began by noting, that a Massachusetts statute (§ 16C) vested "in the governing bodies of schools and churches the power to prevent issuance of liquor licenses for premises within a 500-foot radius of the church or school by objecting to the license applications." Orignally, the statute imposed an absolute ban on granting liquor licenses within 500 feet of a church or school. Over time, the statute was changed to permitting the issuance of such licenses, unless a church or school within 500 feet of the establishment objected. The Court repeatedly referred to the revised form of the statute, as giving churches "veto power" over applications for liquor licenses, a governmental and legislative function.

The Court stated the issue as, whether vesting the governing bodies of churches and schools with veto power over liquor license applicaitons violates the Establishment Clause of the First Amendment.

The Court noted that the statute did have a secular purpose, that schools and churches have a valid interest in being insulated from the hurly-burly of liquor-dispensing establishments, and that a 500 foot buffer was reasonable. However, the Court found that the statute delegated to private, non-governmental entities power to veto liquor licenses.

The purpose of the First Amendment is two-fold — 1) to prevent state interference with the practice of religion; and 2) to prevent the establishment of religion. There must be a "wall of separation" between religion and government, although some limited and incidental entanglement is inevitable. In the case reviewed, that wall has been substantially breached, "by vesting discretionary governmental powers in religious bodies."

The secular purpose of insulating churches from liquor establishments can be accomplished by other means, either by an absolute ban, or through hearings to review the positions of the affected institutions. The veto power granted in the statute was based on no standards of findings or reasoning. This conferred veto power should not be considered as "a remote and incidental effect on the advancement of religion."

In addition, the mere appearance of a joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some by reason of the power conferred. It does not strain our prior holdings to say that the statute can be seen as having a "primary" and "principle" effect of advancing religion.

The power granted was not required to be used by churches in a religiously neutral way. The power could have been used to promote religious goals, such as favoring members of their congregations or adherents of their faith for acquiring liquor licenses.

Thus, the Court held the statute unconstitutional and offensive to the Consitution.

Section 16C substitutes the unilateral and absolute power of a church for the reasoned decisionmaking of a public legislative body... enmeshes churches in the processes of government and creates the danger of "[p]olitical fragmentation and divisiveness on religious lines," Lemon v. Kurzman... Few entanglements could be more offensive to the spirit of the Constitution.

Justice Rehnquist dissented, even noting that the decision was "silly."

The Court wrenches from the decision of the Massachusetts Supreme Judicial Court the word "veto," and rests its conclusion on this single term. The aim of this effort is to prove that a quite sensible Massachusetts liquor zoning law is apparently some sort of sinister religious attack on secular government reminiscent of St. Bartholemew's Night. Being unpersuaded, I dissent...

The Court rings in the metaphor of the "wall between church and state," and the "three-part test" developed in Walz v. Tax Comm'n, 397 U. S. 664 (1970), to justify its result. However, by its frequent reference to the statutory provision as a "veto," the Court indicates a belief that § 16C effectively constitutes churches as third houses of the Massachusetts Legislature. See ante at 459 U. S. 125-126. Surely we do not need a three-part test to decide whether the grant of actual legislative power to churches is within the proscription of the Establishment Clause of the First and Fourteenth Amendments. The question in this case is not whether such a statute would be unconstitutional, but whether § 16C is such a statute. The Court in effect answers this question in the first sentence of its opinion, without any discussion or statement of reasons. I do not think the question is so trivial that it may be answered by simply affixing a label to the statutory provision.

Section 16C does not sponsor or subsidize any religious group or activity. It does not encourage, much less compel, anyone to participate in religious activities or to support religious institutions. To say that it "advances" religion is to strain at the meaning of that word...

The heavy First Amendment artillery that the Court fires at this sensible and unobjectionable Massachusetts statute is both unnecessary and unavailing.

Justice Rehnquist also noted that there is no meaningful way to require a statute to be "religiously neutral," which is intended to protect people engaging in a religous activity. The state does not "advance" religion by protecting people engaged in engaged in religious activity from being molested by the operation of a neighboring bar. And if a liquor license were issued for an "explicitly religious" reason, "there would be an ocassion to determine whether it had violated any right of an unsuccessful applicant...."

Final Note

Does giving churches the right to object to bars being located near their premises actually invest government power in religious bodies? Did the Court demonstrate glaring bias against religion by stating in the decision that the statute reviewed substituted "the unilateral and absolute power of a church for the reasoned decison making of a public legislative body?" Does an objection by church elders alone to the presence of a nearby bar have to lack reason? Could such zoning objections by churches be used to promote religion by favoring the opening of bars only for people of a particular faith? Have bars been opened in America to promote evangelism and to preach moral values based on religious beliefs? Does a real possibility exist that denominations might begin to focus on bars to promote religion? Does this Court decision make sense?

However, the Court was concerned over the symbolic benefit conferred to religion by having the right to make zoning objections to bars being located nearby. Does such a right actually have a "primary" and "principal" effect of advancing religion? Is it possible that the Court refused to find such objections as only benefiting religion in a "remote" and "incidental" way, in order to enhance, protect, and promote the purity of America being a secular society?

M. Paul Webb
Copyright

[Paul]

The Court noted in Mueller v. Allen, 1983, that in part the case was accepted for review as it had been decided differently by the Court of Appeal of the First and Eighth Circuits. Mueller was a five justices against four decision, and in this post the dissenting opinion is set out in more detail, for enhanced comparison of the two arguments.

Under review in Mueller was a Minnesota statue that provided a state income tax deduction for tuition, textbooks, and transportation, of $500 for students in elementary school, and $700 for students in secondary school. Dissenting justices noted factually, that other educational expenses could be deducted, such as the cost of gym clothes, pencils, and notebooks. However, the Court reviewed in its decision, that actually the other expenses could be more substantial, such as transportation, rental of a variety of equipment, and tuition for summer school, for instruction not provided by public schools, or for sending children to a school outside a district of residence. Certain Minnesota taxpayers sued on the basis that the statute violated the Establishment Clause, by providing financial assistance to sectarian institutions.

The Court framed the issue on whether the Minnesota statute violated the Establishment Clause, as a matter of how the assistance resembled precedent cases, in either striking down or approving state aid to sectarian schools.

In this case, we are asked to decide whether Minnesota's tax deduction bears greater resemblance to those types of assistance to parochial schools we have approved, or to those we have struck down. Petitioners place particular reliance on our decision in Committee for Public Education v. Nyquist, supra, where we held invalid a New York statute providing public funds for the maintenance and repair of the physical facilities of private schools and granting thinly disguised "tax benefits," actually amounting to tuition grants, to the parents of children attending private schools. As explained below, we conclude that § 290.09, subd. 22, bears less resemblance to the arrangement struck down in Nyquistthan it does to assistance programs upheld in our prior decisions and those discussed with approval in Nyquist.

Once again, the Court began setting out its decision by noting that Establishment Clause cases are really difficult, and that the justices have always acknowledged that they “can only dimly perceive the line of demarcation in this extraordinarily sensitive area of constitutional law.”

However, the Court quickly noted that the statute satisfied the secular purpose part of the Lemon test, as sectarian schools help defray the tax burden for all citizens for public education, and as they provide an alternative for millions of Americans.

The Court also held that the statute satisfied the second part of the Lemon test, of not having the primary effect of advancing sectarian objectives. An essential feature of statute was that it set out a tax arrangement with many deductions in addition to that for the costs of schooling, such as medical expenses and charitable contributions, and the Court has always recognized that “legislatures have especially broad latitude in creating classifications and distinctions in tax statutes,” due to a familiarity with local conditions, which enables overall fairness in establishing tax burdens. The Court must have substantial deference for the judgment of the Minnesota legislature, in attempting to create fairness regarding the tax burden of all citizens for educational expenses and to encourage desirable expenditures.

Other characteristics of the statute argued for its constitutionality. Most importantly, the deduction was available for the educational expenses of all parents, whether their children attended public schools, nonsectarian private schools, or sectarian schools. “The provision of benefits to so broad a spectrum of groups is an important index of secular effect.” The public assistance struck down in Committee for Public Education v. Nyquist, 1973, benefited only the parents of children in nonpublic schools.

The Court also found as significant that the assistance to parochial schools provided by the statute was channeled through individual parents.

We also agree with the Court of Appeals that, by channeling whatever assistance it may provide to parochial schools through individual parents, Minnesota has reduced the Establishment Clause objections to which its action is subject. It is true, of course, that financial assistance provided to parents ultimately has an economic effect comparable to that of aid given directly to the schools attended by their children. It is also true, however, that, under Minnesota's arrangement, public funds become available only as a result of numerous private choices of individual parents of school-age children. For these reasons, we recognized in Nyquist that the means by which state assistance flows to private schools is of some importance: we said that "the fact that aid is disbursed to parents, rather than to . . . schools," is a material consideration in Establishment Clause analysis, albeit "only one among many factors to be considered."

The historical purpose of the Establishment Clause was to protect against the evil of government involvement in religious life, which leads to strife and straining the political system to the breaking point. However, at this point in the 20th century, we are quite far removed from the danger of religious or denominational control over our democratic processes, and even the possibility of deep political division along religious lines should be considered remote and tolerable when viewed against the positive contributions of sectarian schools. Although the historic purposes of the prohibition of the Establishment Clause do extend beyond the prohibition of a state church or providing state funds to churches, the type of tax deduction of the Minnesota statute under review is not encompassed.

The Court refused to consider in detail contentions regarding the primary benefit of the statute going to religious schools according to statistical analysis.

Petitioners argue that, notwithstanding the facial neutrality of § 290.09, subd. 22, in application, the statute primarily benefits religious institutions. [Footnote 9] Petitioners rely, as they did below, on a statistical analysis of the type of persons claiming the tax deduction. They contend that most parents of public school children incur no tuition expenses, see Minn.Stat. § 120.06 (1982), and that other expenses deductible under § 290.09, subd. 22, are negligible in value; moreover, they claim that 96% of the children in private schools in 1978-1979 attended religiously affiliated institutions. Because of all this, they reason, the bulk of deductions taken under § 290.09, subd. 22, will be claimed by parents of children in sectarian schools. Respondents reply that petitioners have failed to consider the impact of deductions for items such as transportation, summer school tuition, tuition paid by parents whose children attended schools outside the school districts in which they resided, rental or purchase costs for a variety of equipment, and tuition for certain types of instruction not ordinarily provided in public schools.

The Court was loathe to ground a ruling on the constitutionality of a facially neutral law on annual reports on the extent to which various classes of citizens claimed benefit. However, private educational institutions provide alternatives to public schools, as well as competition, and substantially relieve the tax burden of their operation.

The Court had “no difficulty in concluding” that the statute did not “excessively entangle” the state in religion. Under the statute, the state officials only “must determine whether particular textbooks qualify for a deduction, or promote religious doctrine. The Court had already decided in Board of Education v. Allen, 1968, that making such a determination in the loaning of textbooks to private schools was not excessive entanglement.

Justice Marshall, joined by Justices Brennan, Blackmun, Stevens, dissented.

The Establishment Clause of the First Amendment prohibits a State from subsidizing religious education, whether it does so directly or indirectly.

The dissenting justices asserted that this above quoted principle of prohibition forbids any tax benefit for religious education, including a deduction which subsidizes tuition payment to sectarian schools, or the cost associated with books and instructional materials used for sectarian purposes.

Nyquist established the principle that financial aid in the form of a tax credit to parents of students in parochial schools is no more permissible than a cash grant. However, the majority found that the Minnesota statute was different, providing a tax deduction, rather than a credit. In reality, there is no significant difference between the two forms of aid.

Although the tax benefit under the Minnesota statute was available to all parents of children attending schools charging tuition, the vast majority of eligible taxpayers were associated with religious schools. The statute had the primary effect of advancing religion. The primary purpose of sectarian schools is to provide “an integrated secular and religious education."

For this reason, aid to sectarian schools must be restricted to ensure that it may be not used to further the religious mission of those schools. See, e.g., Wolman v. Walter, supra, at 433 U. S. 250-251. While "services such as police and fire protection, sewage disposal, highways, and sidewalks," may be provided to parochial schools in common with other institutions, because this type of assistance is clearly "marked off from the religious function'" of those schools, Nyquist, supra, at 413 U. S. 781-782, quoting Everson v. Board of Education, 330 U. S. 1, 330 U. S. 18 (1947), unrestricted financial assistance, such as grants for the maintenance and construction of parochial schools, may not be provided. Nyquist, 413 U.S. At 413 U. S. 774-780.
"In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid."

As stipulated in Nyquist, any state aid from public funds not used exclusively for secular purposes is invalid, which must be guaranteed by the language of such a statute. Sectarian schools may benefit from services as fire protection, sewage control, highways and sidewalks, as this type assistance is clearly marked off from the religious institution's function. However, financial assistance for the religious mission of the school is not permitted, such as grants for maintenance and education.

With the Minnesota statute, the state sought to relieve the financial burdens of sending children to religiously oriented schools.

As was true of the law struck down in Nyquist... the effect of the aid is unmistakably to provide desired financial support for nonpublic sectarian institutions.

That parents received a reduction of their tax liability, rather than a direct reimbursement, has no greater significance in this case than it was in Nyquist. "[F]or purposes of determining whether such aid has the effect of advancing religion,"it makes no difference whether the qualifying "parent receives an actual cash payment [or] is allowed to reduce . . . the sum he would otherwise be obliged to pay over to the State." Id. At 413 U. S. 790-791. It is equally irrelevant whether a reduction in taxes takes the form of a tax "credit," a tax "modification," or a tax "deduction." Id. At 413 U. S. 789-790. What is of controlling significance is not the form, but the "substantive impact" of the financial aid. Id. At 413 U. S. 786.

The majority decision attempted to distinguish the Nyquist decision on two points.

1. The Minnesota statute allowed deductions for educational expenses other than tuition for all parents. However, in reality, these other expenses were minimal, and the largest deduction was for tuition. The statute masqueraded as a subsidy for education expense but actually was for tuition. 96%of the taxpayers qualifying for a tuition deduction sent their children to sectarian schools.

2. The majority noted the Minnesota law was a “genuine tax deduction,” while the benefit in Nyquist was only nominally a deduction but had the features of a “tax credit,” a predetermined amount not dependent on actual expenditure. However, the distinction was only in form and not based on a real difference. The economic benefit was the same as direct aid to sectarian schools.

The majority incorrectly asserted that the Minnesota statute bears less resemblance to Nyquist than to other assistance programs upheld by the Court. However, financial assistance for tuition payments is not like indirect or incidental benefits that have been permitted to flow to sectarian schools, such as bus transportation or secular textbooks. The tuition is not restircted to purely secular side of the institution. The majority was "simply mistatken in concluding that a tax deduction, unlike a tax credit or a direct grant to parents, promotes religious education in a manner that is only attenuated.” The deduction subsidized inculcating religious values and beliefs and aids the sectarian enterprise as a whole.

Final Note

Does the majority opinion in Mueller really set out a better argument than the dissent? Or have the decisions of the Court on the Religion Clauses become completely arbitrary?

In essence, the majority position actually could be set out in a nutshell as follows.
1) Whether the tax deduction for tuition at sectarian schools supported advancing religion had no real significance, because it was part of an overall tax scheme that provided deductions for other expenses as well, such as medical and charitable. Statistical analysis on the primary benefit of a tax deduction is unimportant, when the statute setting out the overall tax scheme appears to be constitutional on the surface. (However, in other cases the Court has found such statistical analysis relevant, in particular, Sloan v. Lemon, 1973).
2) The deduction for educational expense was available for all parents of both public and private schools, which is an important index that the Minnesota statute had a secular effect.
3) The historical purpose of the Establishment Clause is no longer very significant.
4) The Minnesota statute created no excessive entanglement between church and state, because government officials only had to become involved to assess whether books promoted religious doctrine, before their expense could be deducted, a determination made without difficulty.

Does the line of reasoning of the majority opinion make sense?

The dissenting position in essence asserts that the Establishment Clause prohibits any subsidy for religious education, including a tax benefit. In Tilton v. Richardson, 1971, the Court noted that strict precaution must be taken in excluding state aid to primary and secondary sectarian schools, in order to protect children from being inculcated with religious doctrine. However, donations to churches can be deducted from federal taxable income, most of which have children's Sunday school classes.

Does the line of reasoning of the dissenting opinion make sense?

Is there any real basis for deciding cases on the Religious Clauses of the First Amendment? If not –- why not?

M. Paul Webb
Copyright