[[Page 965]]
FIRST AMENDMENT
__________
RELIGION AND EXPRESSION
__________
CONTENTS
Page
Religion.................................................. 969
An Overview............................................... 969
Scholarly Commentary.............................. 970
Court Tests Applied to Legislation Affecting
Religion...................................... 972
Government Neutrality in Religious Disputes....... 974
Establishment of Religion................................. 977
Financial Assistance to Church-Related
Institutions.................................. 977
Governmental Encouragement of Religion in Public
Schools: Released Time........................ 991
Governmental Encouragement of Religion in Public
Schools: Prayers and Bible Reading............ 993
Governmental Encouragement of Religion in Public
Schools: Curriculum Restriction............... 996
Access of Religious Groups to School Property..... 997
Tax Exemptions of Religious Property.............. 997
Exemption of Religious Organizations from
Generally Applicable Laws..................... 999
Sunday Closing Laws............................... 999
Conscientious Objection........................... 1000
Regulation of Religious Solicitation.............. 1001
Religion in Governmental Observances.............. 1002
Miscellaneous..................................... 1004
Free Exercise of Religion................................. 1005
The Belief-Conduct Distinction.................... 1007
The Mormon Cases.................................. 1009
The Jehovah's Witnesses Cases..................... 1010
Free Exercise Exemption from General Governmental
Requirements.................................. 1011
Religious Test Oaths.............................. 1019
Religious Disqualification........................ 1019
Freedom of Expression--Speech and Press................... 1020
Adoption and Common Law Background........................ 1020
Freedom of Expression: The Philosophical Basis............ 1025
Freedom of Expression: Is There a Difference Between
Speech and Press...................................... 1026
The Doctrine of Prior Restraint........................... 1029
Injunctions and the Press in Fair Trial Cases..... 1031
Obscenity and Prior Restraint..................... 1033
Subsequent Punishment: Clear and Present Danger and Other
Tests................................................. 1034
Clear and Present Danger.......................... 1036
The Adoption of Clear and Present Danger.......... 1038
Contempt of Court and Clear and Present Danger.... 1040
Clear and Present Danger Revised: Dennis.......... 1042
Balancing......................................... 1044
The ``Absolutist'' View of the First Amendment,
with a Note on ``Preferred Position''......... 1048
Of Other Tests and Standards: Vagueness,
Overbreadth, Least Restrictive Means, and
Others........................................ 1050
[[Page 966]]
Is There a Present Test?.......................... 1051
Freedom of Belief......................................... 1053
Flag Salute Cases................................. 1053
Imposition of Consequences for Holding Certain
Beliefs....................................... 1054
Right of Association...................................... 1056
Political Association............................. 1061
Conflict Between Organization and Members......... 1064
Maintenance of National Security and the First Amendment.. 1066
Punishment of Advocacy............................ 1067
Compelled Registration of Communist Party......... 1069
Punishment for Membership in an Organization Which
Engages in Proscribed Advocacy................ 1070
Disabilities Attaching to Membership in Proscribed
Organizations................................. 1071
Employment Restrictions and Loyalty Oaths......... 1073
Legislative Investigations and the First Amendment 1078
Interference With War Effort...................... 1079
Suppression of Communist Propaganda in the Mails.. 1080
Exclusion of Certain Aliens as a First Amendment
Problem....................................... 1080
Particular Government Regulations Which Restrict
Expression............................................ 1081
Government as Employer: Political Activities...... 1081
Government as Employer: Free Expression Generally. 1084
Government as Educator............................ 1090
Government as Regulator of the Electoral Process:
Elections..................................... 1094
Government as Regulator of the Electoral Process:
Lobbying...................................... 1101
Government as Regulator of Labor Relations........ 1102
Government as Investigator: Journalist's Privilege 1102
Government and the Conduct of Trials.............. 1105
Government as Administrator of Prisons............ 1108
Government and Power of the Purse................. 1112
Governmental Regulation of Communications Industries...... 1113
Commercial Speech................................. 1113
Taxation.......................................... 1119
Labor Relations................................... 1121
Antitrust Laws.................................... 1122
Radio and Television.............................. 1123
Governmentally Compelled Right of Reply to
Newspapers.................................... 1127
Government Restraint of Content of Expression............. 1127
Seditious Speech and Seditious Libel.............. 1131
Fighting Words and Other Threats to the Peace..... 1133
Group Libel, Hate Speech.......................... 1135
Defamation........................................ 1136
Invasion of Privacy............................... 1145
Emotional Distress Tort Actions................... 1147
``Right of Publicity'' Tort Actions............... 1147
Publication of Legally Confidential Information... 1148
Obscenity......................................... 1149
Child Pornography................................. 1159
Nonobscene But Sexually Explicit and Indecent
Expression.................................... 1160
Speech Plus--The Constitutional Law of Leafleting,
Picketing, and Demonstrating.......................... 1164
The Public Forum.................................. 1164
Quasi-Public Places............................... 1171
[[Page 967]]
Picketing and Boycotts by Labor Unions............ 1173
Public Issue Picketing and Parading............... 1174
Leafleting, Handbilling, and the Like............. 1180
Sound Trucks, Noise............................... 1181
Door-to-Door Solicitation......................... 1182
The Problem of ``Symbolic Speech''................ 1183
Rights of Assembly and Petition........................... 1187
Background and Development................................ 1187
The Cruikshank Case............................... 1189
The Hague Case.................................... 1190
[[Page 969]]
FIRST AMENDMENT
RELIGION AND EXPRESSION
__________
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
RELIGION
An Overview
Madison's original proposal for a bill of rights provision
concerning religion read: ``The civil rights of none shall be abridged
on account of religious belief or worship, nor shall any national
religion be established, nor shall the full and equal rights of
conscience be in any manner, or on any pretence, infringed.''\1\ The
language was altered in the House to read: ``Congress shall make no law
establishing religion, or to prevent the free exercise thereof, or to
infringe the rights of conscience.''\2\ In the Senate, the section
adopted read: ``Congress shall make no law establishing articles of
faith, or a mode of worship, or prohibiting the free exercise of
religion, . . .''\3\ It was in the conference committee of the two
bodies, chaired by Madison, that the present language was written with
its some
[[Page 970]]
what more indefinite ``respecting'' phraseology.\4\ Debate in Congress
lends little assistance in interpreting the religion clauses; Madison's
position, as well as that of Jefferson who influenced him, is fairly
clear,\5\ but the intent, insofar as there was one, of the others in
Congress who voted for the language and those in the States who voted to
ratify is subject to speculation.
\1\1 Annals of Congress 434 (June 8, 1789).
\2\The committee appointed to consider Madison's proposals, and
on which Madison served, with Vining as chairman, had rewritten the
religion section to read: ``No religion shall be established by law, nor
shall the equal rights of conscience be infringed.'' After some debate
during which Madison suggested that the word ``national'' might be
inserted before the word ``religion'' as ``point[ing] the amendment
directly to the object it was intended to prevent,'' the House adopted a
substitute reading: ``Congress shall make no laws touching religion, or
infringing the rights of conscience.'' 1 Annals of Congress 729-31
(August 15, 1789). On August 20, on motion of Fisher Ames, the language
of the clause as quoted in the text was adopted. Id. at 766. According
to Madison's biographer, ``[t]here can be little doubt that this was
written by Madison.'' I. Brant, James Madison--Father of the
Constitution 1787-1800 at 271 (1950).
\3\This text, taken from the Senate Journal of September 9,
1789, appears in 2 B. Schwartz (ed.), The Bill of Rights: A Documentary
History 1153 (1971). It was at this point that the religion clauses were
joined with the freedom of expression clauses.
\4\1 Annals of Congress 913 (September 24, 1789). The Senate
concurred the same day. See I. Brant, James Madison--Father of the
Constitution 1787-1800, 271-72 (1950).
\5\During House debate, Madison told his fellow Members that
``he apprehended the meaning of the words to be, that Congress should
not establish a religion, and enforce the legal observation of it by
law, nor compel men to worship God in any Manner contrary to their
conscience.'' 1 Annals of Congress 730 (August 15, 1789). That his
conception of ``establishment'' was quite broad is revealed in his veto
as President in 1811 of a bill which in granting land reserved a parcel
for a Baptist Church in Salem, Mississippi; the action, explained
President Madison, ``comprises a principle and precedent for the
appropriation of funds of the United States for the use and support of
religious societies, contrary to the article of the Constitution which
declares that `Congress shall make no law respecting a religious
establishment.''' 8 The Writings of James Madison (G. Hunt. ed.) 132-33
(1904). Madison's views were no doubt influenced by the fight in the
Virginia legislature in 1784-1785 in which he successfully led the
opposition to a tax to support teachers of religion in Virginia and in
the course of which he drafted his ``Memorial and Remonstrance against
Religious Assessments'' setting forth his thoughts. Id. at 183-91; I.
Brant, James Madison--The Nationalist 1780-1787, 343-55 (1948). Acting
on the momentum of this effort, Madison secured passage of Jefferson's
``Bill for Religious Liberty''. Id. at 354; D. Malone, Jefferson the
Virginian 274-280 (1948). The theme of the writings of both was that it
was wrong to offer public support of any religion in particular or of
religion in general.
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Scholarly Commentary.--The explication of the religion clauses
by the scholars has followed a restrained sense of their meaning. Story,
who thought that ``the right of a society or government to interfere in
matters of religion will hardly be contested by any persons, who believe
that piety, religion, and morality are intimately connected with the
well being of the state, and indispensable to the administration of
civil justice,''\6\ looked upon the prohibition simply as an exclusion
from the Federal Government of all power to act upon the subject. ``The
situation . . . of the different states equally proclaimed the policy,
as well as the necessity of such an exclusion. In some of the states,
episcopalians constituted the predominant sect; in others presbyterians;
in others, congregationalists; in others, quakers; and in others again,
there was a close numerical rivalry among contending sects. It was
impossible, that there should not arise perpetual strife and perpetual
jealousy on the subject of ecclesiastical ascendancy, if the national
government were left free to create a religious establishment. The only
security was in extirpating the power. But this alone would have been an
imperfect security, if it had not been followed up by a declaration
[[Page 971]]
of the right of the free exercise of religion, and a prohibition (as we
have seen) of all religious tests. Thus, the whole power over the
subject of religion is left exclusively to the state governments, to be
acted upon according to their own sense of justice, and the state
constitutions; and the Catholic and the Protestant, the Calvinist and
the Arminian, the Jew and the Infidel, may sit down at the common table
of the national councils, without any inquisition into their faith, or
mode of worship.''\7\
\6\3 J. Story, Commentaries on the Constitution of the United
States 1865 (1833).
\7\Id. at 1873.
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``Probably,'' Story also wrote, ``at the time of the adoption of
the constitution and of the amendment to it, now under consideration,
the general, if not the universal, sentiment in America was, that
Christianity ought to receive encouragement from the state, so far as
was not incompatible with the private rights of conscience, and the
freedom of religious worship. An attempt to level all religions, and to
make it a matter of state policy to hold all in utter indifference,
would have created universal disapprobation, if not universal
indignation.''\8\ The object, then, of the religion clauses in this view
was not to prevent general governmental encouragement of religion, of
Christianity, but to prevent religious persecution and to prevent a
national establishment.\9\
\8\Id. at 1868.
\9\For a late expounding of this view, see T. Cooley, General
Principles of Constitutional Law in the United States 224-25 (3d ed.
1898).
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This interpretation has long since been abandoned by the Court,
beginning, at least, with Everson v. Board of Education,\10\ in which
the Court, without dissent on this point, declared that the
Establishment Clause forbids not only practices that ``aid one
religion'' or ``prefer one religion over another,'' but as well those
that ``aid all religions.'' Recently, in reliance on published scholarly
research and original sources, Court dissenters have recurred to the
argument that what the religion clauses, principally the Establishment
Clause, prevent is ``preferential'' governmental promotion of some
religions, allowing general governmental promotion of all religion in
general.\11\ The Court has not responded, though Justice Souter in a
major concurring opinion did undertake to rebut the argument and to
restate the Everson position.\12\
\10\330 U.S. 1, 15 (1947). Establishment Clause jurisprudence
since, whatever its twists and turns, maintains this view.
\11\Wallace v. Jaffree, 472 U.S. 38, 91 (1985) (then-Justice
Rehnquist dissenting). More recently, dissenters, including now-Chief
Justice Rehnquist, have appeared reconciled to a ``constitutional
tradition'' in which governmental endorsement of religion is out of
bounds, even if it is not correct as a matter of history. See Lee v.
Weisman, 112 S. Ct. 2649, 2678, 2683-84 (1992) (Justice Scalia, joined
by the Chief Justice and Justices White and Thomas, dissenting).
\12\Lee v. Weisman, 112 S. Ct. 2649, 2667 (1992) (Justice
Souter, joined by Justices Stevens and O'Connor, concurring).
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[[Page 972]]
Court Tests Applied to Legislation Affecting Religion.--Before
considering the development of the two religion clauses by the Supreme
Court, one should notice briefly the tests developed by which religion
cases are adjudicated by the Court. While later cases rely on a series
of rather well-defined, if difficult-to-apply, tests, the language of
earlier cases ``may have [contained] too sweeping utterances on aspects
of these clauses that seemed clear in relation to the particular cases
but have limited meaning as general principles.''\13\ It is well to
recall that ``the purpose [of the religion clauses] was to state an
objective, not to write a statute.''\14\
\13\Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970).
\14\Id.
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In 1802, President Jefferson wrote a letter to a group of
Baptists in Danbury, Connecticut, in which he declared that it was the
purpose of the First Amendment to build ``a wall of separation between
Church and State.''\15\ In Reynolds v. United States,\16\ Chief Justice
Waite for the Court characterized the phrase as ``almost an
authoritative declaration of the scope and effect of the amendment.'' In
its first encounters with religion-based challenges to state programs,
the Court looked to Jefferson's metaphor for substantial guidance.\17\
But a metaphor may obscure as well as illuminate, and the Court soon
began to emphasize neutrality and voluntarism as the standard of
restraint on governmental action.\18\
[[Page 973]]
The concept of neutrality itself is ``a coat of many colors,''\19\ and
three standards that could be stated in objective fashion emerged as
tests of Establishment Clause validity. The first two standards were
part of the same formulation. ``The test may be stated as follows: what
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.''\20\ The third test is whether
the governmental program results in ``an excessive government
entanglement with religion. The test is inescapably one of degree . . .
[T]he questions are whether the involvement is excessive, and whether it
is a continuing one calling for official and continuing surveillance
leading to an impermissible degree of entanglement.''\21\ In 1971 these
three tests were combined and restated in Chief Justice Burger's opinion
for the Court in Lemon v. Kurtzman,\22\ and are frequently referred to
by reference to that case name.
\15\16 The Writings of Thomas Jefferson 281 (A. Libscomb ed.,
1904).
\16\98 U.S. 145, 164 (1879).
\17\Everson v. Board of Education, 330 U.S. 1, 16 (1947);
Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 211, 212
(1948); cf. Zorach v. Clauson, 343 U.S. 306, 317 (1952) (Justice Black
dissenting). In Lemon v. Kurtzman, 403 U.S. 602, 614 (1971), Chief
Justice Burger remarked that ``the line of separation, far from being a
`wall,' is a blurred, indistinct and variable barrier depending on all
the circumstances of a particular relationship.'' Similar observations
were repeated by the Chief Justice in his opinion for the Court in Lynch
v. Donnelly, 465 U.S. 668, 673 (1984) (the metaphor is not ``wholly
accurate''; the Constitution does not ``require complete separation of
church and state [but] affirmatively mandates accommodation, not merely
tolerance, of all religions, and forbids hostility toward any'').
\18\Zorach v. Clauson, 343 U.S. 306, 314 (1952); Engel v.
Vitale, 370 U.S. 421 (1962); Sherbert v. Verner, 374 U.S. 398 (1963);
Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Justice
Goldberg concurring); Walz v. Tax Comm'n, 397 U.S. 664, 694-97 (1970)
(Justice Harlan concurring). In the opinion of the Court in the latter
case, Chief Justice Burger wrote: ``The course of constitutional
neutrality in this area cannot be an absolutely straight line; rigidity
could well defeat the basic purpose of these provisions, which is to
insure that no religion be sponsored or favored, none commanded, and
none inhibited. The general principle deducible from the First Amendment
and all that has been said by the Court is this: that we will not
tolerate either governmentally established religion or governmental
interference with religion. Short of those expressly proscribed
governmental acts there is room for play in the joints productive of a
benevolent neutrality which will permit religious exercise to exist
without sponsorship and without interference.'' Id. at 669.
\19\Board of Education v. Allen, 392 U.S. 236, 249 (1968)
(Justice Harlan concurring).
\20\Abington School District v. Schempp, 374 U.S. 203, 222
(1963).
\21\Walz v. Tax Comm'n, 397 U.S. 664, 674-75 (1970).
\22\403 U.S. 602, 612-13 (1971).
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Although at one time accepted in principle by all of the
Justices,\23\ the tests have sometimes been difficult to apply,\24\ have
recently come under direct attack by some Justices,\25\ and in two in
[[Page 974]]
stances have not been applied at all by the Court.\26\ While continued
application is uncertain, the Lemon tests nonetheless have served for
twenty years as the standard measure of Establishment Clause validity
and explain most of the Court's decisions in the area.\27\ As of the end
of the Court's 1991-92 Term, there was not yet a consensus among Lemon
critics as to what substitute test should be favored.\28\ Reliance on
``coercion'' for that purpose would eliminate a principal distinction
between establishment cases and free exercise cases and render the
Establishment Clause largely duplicative of the Free Exercise
Clause.\29\
\23\E.g., Committee for Public Educ. & Religious Liberty v.
Regan, 444 U.S. 646, 653 (1980), and id. at 665 (dissenting opinion);
Stone v. Graham, 449 U.S. 39, 40 (1980), and id. at 43 (dissenting
opinion).
\24\The tests provide ``helpful signposts,'' Hunt v. McNair, 413
U.S. 734, 741 (1973), and are at best ``guidelines'' rather than a
``constitutional caliper;'' they must be used to consider ``the
cumulative criteria developed over many years and applying to a wide
range of governmental action.'' Inevitably, ``no `bright line' guidance
is afforded.'' Tilton v. Richardson, 403 U.S. 672, 677-78 (1971). See
also Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S.
756, 761 & n.5, 773 n.31 (1973); Committee for Public Educ. & Religious
Liberty v. Regan, 444 U.S. 646, 662 (1980), and id. at 663 (Justice
Blackmun dissenting).
\25\See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636-40 (1987)
(Justice Scalia, joined by Chief Justice Rehnquist, dissenting)
(advocating abandonment of the ``purpose'' test); Wallace v. Jaffree,
472 U.S. 38, 108-12 (1985) (Justice Rehnquist dissenting); Aguilar v.
Felton, 473 U.S. 402, 426-30 (1985) (Justice O'Connor, dissenting)
(addressing difficulties in applying the entanglement prong); Roemer v.
Maryland Bd. of Public Works, 426 U.S. 736, 768-69 (Justice White
concurring in judgment) (objecting to entanglement test). Justice
Kennedy has also acknowledged criticisms of the Lemon tests, while at
the samed time finding no need to reexamine them. See, e.g., Allegheny
County v. Greater Pittsburgh ACLU, 492 U.S. 573, 655-56 (1989). At least
with respect to public aid to religious schools, Justice Stevens would
abandon the tests and simply adopt a ``no-aid'' position. Committee for
Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671 (1980).
\26\See Marsh v. Chambers, 463 U.S. 783 (1983) (upholding
legislative prayers on the basis of historical practice); Lee v.
Weisman, 112 S. Ct. 2649, 2655 (1992) (rejecting a request to reconsider
Lemon because the practice of invocations at public high school
graduations was invalid under established school prayer precedents). The
Court has also held that the tripartite test is not applicable when law
grants a denominational preference, distinguishing between religions;
rather, the distinction is to be subjected to the strict scrutiny of a
suspect classification. Larson v. Valente, 456 U.S. 228, 244-46 (1982).
\27\Justice Blackmun, concurring in Lee, contended that Marsh
was the only one of 31 Establishment cases between 1971 and 1992 not to
be decided on the basis on the Lemon tests. 112 S. Ct. at 2663, n.4.
\28\In 1990 Justice Kennedy, joined by Justice Scalia, proposed
that ``neutral'' accommodations of religion should be permissible so
long as they do not establish a state religion, and so long as there is
no ``coercion'' to participate in religious exercises. Westside
Community Bd. of Educ. v. Mergens, 496 U.S. 226, 260-61. The two
Justices parted company, however, over the permissiblity of invocations
at public high school graduation ceremonies, Justice Scalia in dissent
strongly criticizing Justice Kennedy's approach in the opinion of the
Court for its reliance on psychological coercion. Justice Scalia would
not ``expand[ ] the concept of coercion beyond acts backed by threat of
penalty.'' Lee v. Weisman, 112 S. Ct. 2649, 2684 (1992). Chief Justice
Rehnquist has advocated limiting application to a prohibition on
establishing a national (or state) church or favoring one religious
group over another. Wallace v. Jaffree, 472 U.S. 38, 98, 106 (1985)
(dissenting).
\29\Abington School District v. Schempp, 374 U.S. 203, 222-23
(1963). See also Board of Education v. Allen, 392 U.S. 236, 248-49
(1968); and Tilton v. Richardson, 403 U.S. 672, 689 (1971); Lee v.
Weisman, 112 S. Ct. 2649, 2673 (Justice Souter concurring) (``a literal
application of the coercion test would render the Establishment Clause a
virtual nullity'').
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Government Neutrality in Religious Disputes.--One value that
both clauses of the religion section serve is to enforce governmental
neutrality in deciding controversies arising out of religious disputes.
Schism sometimes develops within churches or between a local church and
the general church, resulting in secession or expulsion of one faction
or of the local church. A dispute over which body is to have control of
the property of the church will then often be taken into the courts. It
is now established that both religion clauses prevent governmental
inquiry into religious doctrine in settling such disputes, and instead
require courts simply to look to the decision-making body or process in
the church and to give effect to whatever decision is officially and
properly made.
[[Page 975]]
The first such case was Watson v. Jones,\30\ which was decided
on common-law grounds in a diversity action without explicit reliance on
the First Amendment. A constitutionalization of the rule was made in
Kedroff v. St. Nicholas Cathedral,\31\ in which the Court held
unconstitutional a state statute that recognized the autonomy and
authority of those North American branches of the Russian Orthodox
Church which had declared their independence from the general church.
Recognizing that Watson v. Jones had been decided on nonconstitutional
grounds, the Court thought nonetheless that the opinion ``radiates . . .
a spirit of freedom for religious organizations, and independence from
secular control or manipulation--in short, power to decide for
themselves, free from state interference, matters of church government
as well as those of faith and doctrine.''\32\ The power of civil courts
to resolve church property disputes was severely circumscribed, the
Court held, because to permit resolution of doctrinal disputes in court
was to jeopardize First Amendment values. What a court must do, it was
held, is to look at the church rules: if the church is a hierarchical
one which reposes determination of ecclesiastical issues in a certain
body, the resolution by that body is determinative, while if the church
is a congregational one prescribing action by a majority vote, that
determination will prevail.\33\ On the other hand, a court confronted
with a church property dispute could apply ``neutral principles of law,
developed for use in all property disputes,'' when to do so would not
require resolution of doctrinal issues.\34\ In a later case the Court
elaborated on the limits of proper inquiry, holding that an argument
over a matter of internal church government, the power to reorganize the
dioceses of a hierarchical church in this country, was ``at the core of
ecclesiastical affairs'' and a court could not interpret the church
constitution to make an inde
[[Page 976]]
pendent determination of the power but must defer to the interpretation
of the body authorized to decide.\35\
\30\80 U.S. (13 Wall.) 679 (1872).
\31\344 U.S. 94 (1952). Kedroff was grounded on the Free
Exercise Clause. Id. at 116. But the subsequent cases used a collective
``First Amendment'' designation.
\32\Id. at 116. On remand, the state court adopted the same
ruling on the merits but relied on a common-law rule rather than the
statute. This too was struck down. Kreshik v. St. Nicholas Cathedral,
363 U.S. 190 (1960).
\33\Presbyterian Church v. Hull Memorial Presbyterian Church,
393 U.S. 440, 447, 450-51 (1969); Maryland and Virginia Eldership of the
Churches of God v. Church of God at Sharpsburg, 396 U.S. 367 (1970). For
a similar rule of neutrality in another context, see United States v.
Ballard, 322 U.S. 78 (1944) (denying defendant charged with mail fraud
through dissemination of purported religious literature the right to
present to the jury evidence of the truthfulness of the religious views
he urged).
\34\Presbyterian Church v. Hull Memorial Presbyterian Church,
393 U.S. 440, 449 (1969); Maryland and Virginia Eldership of the
Churches of God v. Church of God of Sharpsburg, 396 U.S. 367, 368
(1970). See also id. at 368-70 (Justice Brennan concurring).
\35\The Serbian Eastern Orthodox Diocese v. Dionisije
Milivojevich, 426 U.S. 697, 720-25 (1976). In Gonzalez v. Archbishop,
280 U.S. 1 (1929), the Court had permitted limited inquiry into the
legality of the actions taken under church rules. The Serbian Eastern
Court disapproved of this inquiry with respect to concepts of
``arbitrariness,'' although it reserved decision on the ``fraud'' and
``collusion'' exceptions. 426 U.S. at 708-20.
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In Jones v. Wolf,\36\ however, a divided Court, while formally
adhering to these principles, appeared to depart in substance from their
application. A schism had developed in a local church which was a member
of a hierarchical church, and the majority voted to withdraw from the
general church. The proper authority of the general church determined
that the minority constituted the ``true congregation'' of the local
church and awarded them authority over it. The Court approved the
approach of the state court in applying neutral principles by examining
the deeds to the church property, state statutes, and provisions of the
general church's constitution concerning ownership and control of church
property in order to determine that no language of trust in favor of the
general church was contained in any of them and that the property thus
belonged to the local congregation.\37\ Further, the Court held, the
First Amendment did not prevent the state court from applying a
presumption of majority rule to award control to the majority of the
local congregation, provided that it permitted defeasance of the
presumption upon a showing that the identity of the local church is to
be determined by some other means as expressed perhaps in the general
church charter.\38\ The dissent argued that to permit a court narrowly
to view only the church documents relating to property ownership
permitted the ignoring of the fact that the dispute was over
ecclesiastical matters and that the general church had decided which
faction of the congregation was the local church.\39\
\36\443 U.S. 595 (1979). In the majority were Justices Blackmun,
Brennan, Marshall, Rehnquist, and Stevens. Dissenting were Justices
Powell, Stewart, White, and Chief Justice Burger.
\37\Id. at 602-06.
\38\Id. at 606-10. Because it was unclear whether the state
court had applied such a rule and applied it properly, the Court
remanded.
\39\Id. at 610.
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Thus, it is unclear where the Court is on this issue. Jones v.
Wolf restated the rule that it is improper to review an ecclesiastical
dispute and that deference is required in those cases, but by approving
a neutral principles inquiry which in effect can filter out the
doctrinal issues underlying a church dispute, the Court seems
[[Page 977]]
to have approved at least an indirect limitation of the authority of
hierarchical churches.\40\
\40\The Court indicated that the general church could always
expressly provide in its charter or in deeds to property the proper
disposition of disputed property. But here the general church had
decided which faction was the ``true congregation,'' and this would
appear to constitute as definitive a ruling as the Court's suggested
alternatives. Id. at 606.
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Establishment of Religion
``[F]or the men who wrote the Religion Clauses of the First
Amendment the `establishment' of a religion connoted sponsorship,
financial support, and active involvement of the sovereign in religious
activity.''\41\ However, the Court's reading of the clause has never
resulted in the barring of all assistance which aids, however
incidentally, a religious institution. Outside this area, the decisions
generally have more rigorously prohibited what may be deemed
governmental promotion of religious doctrine.
\41\Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970). ``Two great
drives are constantly in motion to abridge, in the name of education,
the complete division of religion and civil authority which our
forefathers made. One is to introduce religious education and
observances into the public schools. The other, to obtain public funds
for the aid and support of various private religious schools. . . . In
my opinion both avenues were closed by the Constitution.'' Everson v.
Board of Education, 330 U.S. 1, 63 (1947) (Justice Rutledge dissenting).
---------------------------------------------------------------------------
Financial Assistance to Church-Related Institutions.--The
Court's first opportunity to rule on the validity of governmental
financial assistance to a religiously affiliated institution occurred in
1899, the assistance being a federal grant for the construction of a
hospital owned and operated by a Roman Catholic order. The Court viewed
the hospital as a secular institution so chartered by Congress and not
as a religious or sectarian body, thus avoiding the constitutional
issue.\42\ But when the right of local authorities to provide free
transportation for children attending parochial schools reached the
Court, it adopted very restrictive language. ``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
[[Page 978]]
or professing religious beliefs or disbeliefs, for church attendance or
non-attendance. No tax in any amount, large or small, can be levied to
support any religious activities or institutions, whatever they may be
called, or whatever form they may adopt to teach or practice religion.
Neither a state nor the Federal Government can, openly or secretly,
participate in the affairs of any religious organizations 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.'''\43\ But the majority sustained the provision of
transportation. While recognizing that ``it approaches the verge'' of
the State's constitutional power, still, Justice Black thought, the
transportation was a form of ``public welfare legislation'' which was
being extended ``to all its citizens without regard to their religious
belief.''\44\ ``It is undoubtedly true that children are helped to get
to church schools. There is even a possibility that some of the children
might not be sent to the church schools if the parents were compelled to
pay their children's bus fares out of their own pockets when
transportation to a public school would have been paid for by the
State.''\45\ Transportation benefited the child, just as did police
protection at crossings, fire protection, connections for sewage
disposal, public highways and sidewalks. Thus was born the ``child
benefit'' theory.\46\
\42\Bradfield v. Roberts, 175 U.S. 291 (1899). Cf. Abington
School District v. Schempp, 374 U.S. 203, 246 (1963) (Justice Brennan
concurring). In Cochran v. Board of Education, 281 U.S. 370 (1930), a
state program furnishing textbooks to parochial schools was sustained
under a due process attack without reference to the First Amendment. See
also Quick Bear v. Leupp, 210 U.S. 50 (1908) (statutory limitation on
expenditures of public funds for sectarian education does not apply to
treaty and trust funds administered by the Government for Indians).
\43\Everson v. Board of Education, 330 U.S. 1, 15-16 (1947).
\44\Id. at 16.
\45\Id. at 17. It was in Everson that the Court, without much
discussion of the matter, held that the Establishment Clause applied to
the States through the Fourteenth Amendment and limited both national
and state governments equally. Id. at 8, 13, 14-16. The issue is
discussed at some length by Justice Brennan in Abington School Dist. v.
Schempp, 374 U.S. 203, 253-58 (1963).
\46\And see Zorach v. Clauson, 343 U.S. 306, 312-13 (1952)
(upholding program allowing public schools to excuse students to attend
religious instruction or exercises).
---------------------------------------------------------------------------
The Court in 1968 relied on the ``child benefit'' theory to
sustain state loans of textbooks to parochial school students.\47\
Utilizing the secular purpose and effect tests,\48\ the Court determined
that the purpose of the loans was the ``furtherance of the educational
opportunities available to the young,'' while the effect was hardly less
secular. ``The law merely makes available to all children the benefits
of a general program to lend school books free of charge. Books are
furnished at the request of the pupil and ownership remains, at least
technically, in the State. Thus no funds or books are furnished to
parochial schools, and the financial benefit is to parents and children,
not to schools. Perhaps free books make it more likely that some
children choose to attend a sectarian
[[Page 979]]
school, but that was true of the state-paid bus fares in Everson and
does not alone demonstrate an unconstitutional degree of support for a
religious institution.''\49\
\47\Board of Education v. Allen, 392 U.S. 236 (1968).
\48\Supra, p.973.
\49\392 U.S. at 243-44 (1968).
---------------------------------------------------------------------------
From these beginnings, the case law on the discretion of state
and federal governmental assistance to sectarian elementary and
secondary schools has multiplied. Through the 1970s, at least, the law
became as restrictive in fact as the dicta in the early cases suggested,
save for the provision of some assistance to children under the ``child
benefit'' theory. Recent decisions evince a somewhat more accommodating
approach permitting public assistance if the religious missions of the
recipient schools may be only marginally served, or if the directness of
aid to the schools is attenuated by independent decisions of parents who
receive the aid initially. Throughout, the Court has allowed greater
discretion when colleges affiliated with religious institutions are
aided. Moreover, the opinions reveal a deep division among the Justices
over the application of the Lemon tripartite test to these
controversies.
A secular purpose is the first requirement to sustain the
validity of legislation touching upon religion, and upon this standard
the Justices display little disagreement. There are adequate legitimate,
non-sectarian bases for legislation to assist nonpublic, religious
schools: preservation of a healthy and safe educational environment for
all school children, promotion of pluralism and diversity among public
and nonpublic schools, and prevention of overburdening of the public
school system that would accompany the financial failure of private
schools.\50\
\50\Committee for Public Educ. & Religious Liberty v. Nyquist,
413 U.S. 756, 773 (1973). See also id. at 805 (Chief Justice Burger
dissenting), 812-13 (Justice Rehnquist dissenting), 813 (Justice White
dissenting). And see Wolman v. Walter, 433 U.S. 229, 240 (1977)
(plurality opinion); Committee for Public Educ. & Religious Liberty v.
Regan, 444 U.S. 646, 653-654 (1980), and id. at 665 (Justice Blackmun
dissenting).
---------------------------------------------------------------------------
Varied views have been expressed by the Justices, however, upon
the tests of secular primary effect and church-state entanglement. As to
the former test, the Court has formulated no hard-and-fast standard
permitting easy judgment in all cases.\51\ In providing
[[Page 980]]
assistance, government must avoid aiding the religious mission of such
schools directly or indirectly. Thus, for example, funds may not be
given to a sectarian institution without restrictions that would prevent
their use for such purposes as defraying the costs of building or
maintaining chapels or classrooms in which religion is taught.\52\ Loan
of substantial amounts of purely secular educational materials to
sectarian schools can also result in impermissible advancement of
sectarian activity where secular and sectarian education are
inextricably intertwined.\53\ Even the provision of secular services in
religious schools raises the possibility that religious instruction
might be introduced into the class and is sufficient to condemn a
program.\54\ The extent to which the religious mission of the entity is
inextricably intertwined with the secular mission and the size of the
assistance furnished are factors for the reviewing court to
consider.\55\ But the fact that public aid to further secular purposes
of the school will necessarily ``free up'' some of the institution's
funds which it may apply to its religious mission is not alone
sufficient to condemn the program.\56\ Rather, it must always be
determined whether the religious effects are substantial or whether they
are remote and incidental.\57\ Upon that determination and
[[Page 981]]
upon the guarantees built into any program to assure that public aid is
used exclusively for secular, neutral, and nonideological purposes rests
the validity of public assistance.
\51\Justice White has argued that the primary effect test
requires the Court to make an ``ultimate judgment'' whether the primary
effect of a program advances religion. If the primary effect is secular,
i.e., keeping the parochial school system alive and providing adequate
secular education to substantial numbers of students, then the
incidental benefit to religion was only secondary and permissible.
Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756,
822-24 (1973) (dissenting). The Court rejected this view: ``[o]ur cases
simply do not support the notion that a law found to have a `primary'
effect to promote some legitimate end under the State's police power is
immune from further examination to ascertain whether it also has the
direct and immediate effect of advancing religion.'' Id. at 873 n.39.
\52\Committee for Public Educ. & Religious Liberty v. Nyquist,
413 U.S. 756, 774-80 (1973).
\53\Meek v. Pittenger, 421 U.S. 349, 362-66 (1975). See also
Wolman v. Walter, 433 U.S. 229, 248-51 (1977) (loan of same
instructional material and equipment to pupils or their parents).
\54\Compare Meek v. Pittenger, 421 U.S. 349, 367-72 (1975), with
Wolman v. Walter, 433 U.S. 229, 238-48 (1977) and Committee for Public
Educ. & Religious Liberty v. Regan, 444 U.S. 646, 654-57 (1980).
\55\Lemon v. Kurtzman, 403 U.S. 602, 616-19 (1971). The
existence of what the Court perceived to be massive aid and of religion-
pervasive recipients constituted a major backdrop in Committee for
Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973), and
Meek v. Pittenger, 421 U.S. 349 (1973). When the aid is more selective
and its permissible use is cabined sufficiently, the character of the
institution assumes less importance. Committee for Public Educ. &
Religious Liberty v. Regan, 444 U.S. 646, 661-62 (1980). When the entity
is an institution of higher education, the Court appears less concerned
with its religious character but it still evaluates the degree to which
it is pervasively sectarian. Hunt v. McNair, 413 U.S. 734 (1973); Roemer
v. Maryland Public Works Bd., 426 U.S. 736 (1976).
\56\Committee for Public Educ. & Religious Liberty v. Regan, 444
U.S. 646, 658-59 (1980).
\57\The form which the assistance takes may have little to do
with the determination. One group of Justices has argued that when the
assistance is given to parents, the dangers of impermissible primary
effect and entanglement are avoided and it should be approved. Committee
for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 801-05
(1973) (dissenting). The Court denied a controlling significance to
delivery of funds to parents rather than schools; government must always
ensure a secular use. Id. at 780. Another group of Justices has argued
that the primary effect test does not permit direct financial support to
sectarian schools, Committee for Public Educ. & Religious Liberty v.
Regan, 444 U.S. 646, 665-69 (1980) (dissenting), but the Court held that
provision of direct aid with adequate assurances of nonreligious use
does not constitute a forbidden primary effect. Id. at 661-62. More
recently, in Mueller v. Allen, 463 U.S. 388 (1983), the views of the
first group noted above controlled.
---------------------------------------------------------------------------
The greater the necessity of policing the entity's use of public
funds to ensure secular effect, the greater the danger of impermissible
entanglement of government with religious matters. Any scheme that
requires detailed and continuing oversight of the schools and that
requires the entity to report to and justify itself to public authority
has the potential for impermissible entanglement.\58\ However, where the
nature of the assistance is such that furthering of the religious
mission is unlikely and the public oversight is concomitantly less
intrusive, a review may be sustained.\59\
\58\Lemon v. Kurtzman, 403 U.S. 602, 619-20, 621-22 (1971); Meek
v. Pittenger, 421 U.S. 349, 367-72 (1975); Wolman v. Walter, 433 U.S.
229, 254-55 (1977). Another aspect of entanglement identified by the
Court is the danger that an aid program would encourage continuing
political strife through disputes over annual appropriations and
enlargements of programs. Lemon, 403 U.S. at 622-24; Committee for
Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794-98
(1973); Meek, 421 U.S. at 372. This concern appeared to have lessened
somewhat in subsequent cases. Roemer v. Maryland Public Works Board, 426
U.S. 736, 763-66 (1976); Committee for Public Educ. & Religious Liberty
v. Regan, 444 U.S. 646, 661 n.8 (1980).
\59\ Committee for Public Educ. & Religious Liberty v. Regan,
444 U.S. 646, 659-61 (1980); Wolman v. Walter, 433 U.S. 229, 240-41,
242-44, 248 (1977).
---------------------------------------------------------------------------
Thus, government aid which is directed toward furthering secular
interests in the welfare of the child or the nonreligious functions of
the entity will generally be permitted where the entity is not so
pervasively religious that secular and sectarian activities may not be
separated. But no mere statement of rules can adequately survey the
cases.
Substantial unanimity, at least in result, has prevailed among
the Justices in dealing with direct financial assistance to sectarian
schools, as might have been expected from the argument over the primary
effect test.\60\ State aid to church-connected schools was first found
to have gone over the ``verge''\61\ in Lemon v. Kurtzman.\62\ Involved
were two state statutes, one of which authorized the ``purchase'' of
secular educational services from nonpublic elementary and secondary
schools, a form of reimbursement for the cost to religious schools of
the teaching of such things as mathematics, modern foreign languages,
and physical sciences, and the other of which provided salary
supplements to nonpublic school teachers who taught courses similar to
those found in public
[[Page 982]]
schools, used textbooks approved for use in public schools, and agreed
not to teach any classes in religion. Accepting the secular purpose
attached to both statutes by the legislature, the Court did not pass on
the secular effect test, inasmuch as excessive entanglement was found.
This entanglement arose because the legislature ``has not, and could
not, provide state aid on the basis of a mere assumption that secular
teachers under religious discipline can avoid conflicts. The State must
be certain, given the Religion Clauses, that subsidized teachers do not
inculcate religion.''\63\ Because the schools concerned were religious
schools, because they were under the control of the church hierarchy,
because the primary purpose of the schools was the propagation of the
faith, a ``comprehensive, discriminating, and continuing state
surveillance will inevitably be required to ensure that these
restrictions [on religious utilization of aid] are obeyed and the First
Amendment otherwise respected.''\64\ Moreover, the provision of public
aid inevitably will draw religious conflict into the public arena as the
contest for adequate funding goes on. Thus, the Court held, both
programs were unconstitutional because the state supervision necessary
to ensure a secular purpose and a secular effect inevitably involved the
state authorities too deeply in the religious affairs of the aided
institutions.\65\
\60\But see discussion infra p., on the Court's recent approval
of the Adolescent Family Life Act, involving direct grants to religious
institutions.
\61\Everson v. Board of Education, 330 U.S. 1, 16 (1947).
\62\403 U.S. 602 (1971).
\63\Id. at 619.
\64\Id.
\65\Only Justice White dissented. Id. at 661. In Lemon v.
Kurtzman, 411 U.S. 192 (1973), the Court held that the State could
reimburse schools for expenses incurred in reliance on the voided
program up to the date the Supreme Court held the statute
unconstitutional. But see New York v. Cathedral Academy, 434 U.S. 125
(1977).
---------------------------------------------------------------------------
Two programs of assistance through provision of equipment and
services to private, including sectarian, schools were invalidated in
Meek v. Pittenger.\66\ First, the loan of instructional material and
equipment directly to qualifying nonpublic elementary and secondary
schools was voided as an impermissible extension of assistance of
religion. This conclusion was reached on the basis that 75 percent of
the qualifying schools were church-related or religiously affiliated
educational institutions and the assistance was available without regard
to the degree of religious activity of the schools. The materials and
equipment loaned were religiously neutral, but the substantial
assistance necessarily constituted aid to the sectarian school
enterprise as a whole and thus had a primary effect of advancing
religion.\67\ Second, the provision of auxiliary
[[Page 983]]
services--remedial and accelerated instruction, guidance counseling and
testing, speech and hearing services--by public employees on nonpublic
school premises was invalidated because the Court thought the program
had to be policed closely to ensure religious neutrality and it saw no
way that could be done without impermissible entanglement. The fact that
the teachers would, under this program and unlike one of the programs
condemned in Lemon v. Kurtzman, be public employees rather than
employees of the religious schools and possibly under religious
discipline was insufficient to permit the State to fail to make certain
that religion was not inculcated by subsidized teachers.\68\
\66\421 U.S. 349 (1975). Chief Justice Burger and Justices
Rehnquist and White dissented. Id. at 385, 387.
\67\Id. at 362-66. See also Wolman v. Walter, 433 U.S. 229, 248-
51 (1977). The Court in Committee for Public Educ. & Religious Liberty
v. Regan, 444 U.S. 646, 661-62 (1980), held that Meek did not forbid all
aid that benefited religiously pervasive schools to some extent, so long
as it was conferred in such a way as to prevent any appreciable risk of
being used to transmit or teach religious views. See also Wolman v.
Walter, supra at 262 (Justice Powell concurring in part and dissenting
in part).
\68\Meek v. Pittenger, 421 U.S. 349, 367-72 (1975). But see
Wolman v. Walter, 433 U.S. 229, 238-48 (1977).
---------------------------------------------------------------------------
The Court in two 1985 cases again struck down programs of public
subsidy of instructional services provided on the premises of sectarian
schools, and relied on the effects test as well as the entanglement
test. In Grand Rapids School District v. Ball,\69\ the Court invalidated
two programs conducted in leased private school classrooms, one taught
during the regular school day by public school teachers,\70\ and the
other taught after regular school hours by part-time ``public'' teachers
otherwise employed as full-time teachers by the sectarian school.\71\
Both programs, the Court held, had the effect of promoting religion in
three distinct ways. The teachers might be influenced by the
``pervasively sectarian nature'' of the environment and might ``subtly
or overtly indoctrinate the students in particular religious tenets at
public expense''; use of the parochial school classrooms ``threatens to
convey a message of state support for religion'' through ``the symbolic
union of government and religion in one sectarian enterprise''; and
``the programs in effect subsidize the religious functions of the
parochial schools by taking over a substantial portion of their
responsibility for teaching secular subjects.''\72\ In Aguilar v.
Felton,\73\ the Court invalidated a
[[Page 984]]
program under which public school employees provided instructional
services on parochial school premises to educationally deprived
children. The program differed from those at issue in Grand Rapids
because the classes were closely monitored for religious content. This
``pervasive monitoring'' did not save the program, however, because, by
requiring close cooperation and day-to-day contact between public and
secular authorities, the monitoring ``infringes precisely those
Establishment Clause values at the root of the prohibition of excessive
entanglement.''\74\
\69\473 U.S. 373 (1985).
\70\The vote on this ``Shared Time'' program was 5-4, the
opinion of the Court by Justice Brennan being joined by Justices
Marshall, Blackmun, Powell, and Stevens. The Chief Justice, and Justices
White, Rehnquist, and O'Connor dissented.
\71\The vote on this ``Community Education'' program was 7-2,
Chief Justice Burger and Justice O'Connor concurring with the ``Shared
Time'' majority.
\72\473 U.S. at 397.
\73\473 U.S. 402 (1985). This was another 5-4 decision, with
Justice Brennan's opinion of the Court being joined by Justices
Marshall, Blackmun, Powell, and Stevens, and with Chief Justice Burger
and Justices White, Rehnquist, and O'Connor dissenting.
\74\473 U.S. at 413.
---------------------------------------------------------------------------
A state program to reimburse nonpublic schools for a variety of
services mandated by state law was voided because the statute did not
distinguish between secular and potentially religious services the costs
of which would be reimbursed.\75\ Similarly, a program of direct
monetary grants to nonpublic schools to be used for the maintenance of
school facilities and equipment failed to survive the primary effect
test because it did not restrict payment to those expenditures related
to the upkeep of facilities used exclusively for secular purposes and
because ``within the context of these religion-oriented institutions''
the Court could not see how such restrictions could effectively be
imposed.\76\ But a plan of direct monetary grants to nonpublic schools
to reimburse them for the costs of state-mandated record-keeping and of
administering and grading state-prepared tests and which contained
safeguards against religious utilization of the tests was sustained even
though the Court recognized the incidental benefit to the schools.\77\
\75\Levitt v. Committee for Public Educ. & Religious Liberty,
413 U.S. 472 (1973). Justice White dissented, Id. at 482. Among the
services reimbursed was the cost of preparing and grading examinations
in the nonpublic schools by the teachers there. In New York v. Cathedral
Academy, 434 U.S. 125 (1977), the Court struck down a new statutory
program entitling private schools to obtain reimbursement for expenses
incurred during the school year in which the prior program was voided in
Levitt.
\76\Committee for Public Educ. & Religious Liberty v. Nyquist,
413 U.S. 756, 774-80 (1973). Chief Justice Burger and Justice Rehnquist
concurred, Id. at 798, and Justice White dissented. Id. at 820.
\77\Committee for Public Educ. & Religious Liberty v. Regan, 444
U.S. 646 (1980). Justices Blackmun, Brennan, Marshall, and Stevens
dissented. Id. at 662, 671. The dissenters thought that the
authorization of direct reimbursement grants was distinguishable from
previously approved plans that had merely relieved the private schools
of the costs of preparing and grading state-prepared tests. See Wolman
v. Walter, 433 U.S. 229, 238-41 (1977).
---------------------------------------------------------------------------
The ``child benefit'' theory, under which it is permissible for
government to render ideologically neutral assistance and services to
pupils in sectarian schools without being deemed to be aiding the
religious mission of the schools, has not proved easy to apply. A number
of different forms of assistance to students were at issue
[[Page 985]]
in Wolman v. Walter.\78\ The Court approved the following: standardized
tests and scoring services used in the public schools, with private
school personnel not involved in the test drafting and scoring; speech,
hearing, and psychological diagnostic services provided in the private
schools by public employees; and therapeutic, guidance, and remedial
services for students provided off the premises of the private schools.
In all these, the Court thought the program contained adequate built-in
protections against religious utilization. But while the Court adhered
to its ruling permitting the States to loan secular textbooks used in
the public schools to pupils attending religious schools,\79\ it
declined to extend the precedent to permit the loan to pupils or their
parents of instructional materials and equipment, such as projectors,
tape recorders, maps, globes and science kits, although they were
identical to those used in the public schools.\80\ Nor was a State
permitted to expend funds to pay the costs to religious schools of field
trip transportation such as was provided to public school students.\81\
\78\433 U.S. 229 (1977). The Court deemed the situation in which
these services were performed and the nature of the services to occasion
little danger of aiding religious functions and thus requiring little
supervision that would give rise to entanglement. All the services fell
``within that class of general welfare services for children that may be
provided by the States regardless of the incidental benefit that accrues
to church-related schools.'' Id. at 243, quoting Meek v. Pittenger, 421
U.S. 349, 371 n. 21 (1975). Justice Brennan would have voided all the
programs because, considered as a whole, the amount of assistance was so
large as to constitute assistance to the religious mission of the
schools. Id. at 433 U.S. at 255. Justice Marshall would have approved
only the diagnostic services, id. at 256, while Justice Stevens would
generally approve closely administered public health services. Id. at
264.
\79\Meek v. Pittenger, 421 U.S. 349, 359-72 (1975); Wolman v.
Walter, 433 U.S. 229, 236-38 (1977). Allen was explained as resting on
``the unique presumption'' that ``the educational content of textbooks
is something that can be ascertained in advance and cannot be diverted
to sectarian uses.'' There was ``a tension'' between Nyquist, Meek, and
Wolman, on the one hand, and Allen on the other; while Allen was to be
followed ``as a matter of stare decisis,'' the ``presumption of
neutrality'' embodied in Allen would not be extended to other similar
assistance. Id. at 251 n.18. A more recent Court majority revived the
Allen presumption, however, applying it to uphold tax deductions for
tuition and other school expenses in Mueller v. Allen, 463 U.S. 388
(1983). Justice Rehnquist wrote the Court's opinion, joined by Justices
White, Powell, and O'Connor, and by Chief Justice Burger.
\80\433 U.S. at 248-51. See also id. at 263-64 (Justice Powell
concurring in part and dissenting in part).
\81\Id. at 252-55. Justice Powell joined the other three
dissenters who would have approved this expenditure. Id. at 264.
---------------------------------------------------------------------------
Substantially similar programs from New York and Pennsylvania
providing for tuition reimbursement aid to parents of religious school
children were struck down in 1973. New York's program provided
reimbursements out of general tax revenues for tuition paid by low-
income parents to send their children to nonpublic elementary and
secondary schools; the reimbursements were of fixed amounts but could
not exceed 50 percent of actual tuition paid.
[[Page 986]]
Pennsylvania provided fixed-sum reimbursement for parents who send their
children to nonpublic elementary and secondary schools, so long as the
amount paid did not exceed actual tuition, the funds to be derived from
cigarette tax revenues. Both programs, it was held, constituted public
financial assistance to sectarian institutions with no attempt to
segregate the benefits so that religion was not advanced.\82\
\82\Committee for Public Educ. & Religious Liberty v. Nyquist,
413 U.S. 756, 789-798 (1973) (New York); Sloan v. Lemon, 413 U.S. 825
(1973) (Pennsylvania). The Court distinguished Everson and Allen on the
grounds that in those cases the aid was given to all children and their
parents and that the aid was in any event religiously neutral, so that
any assistance to religion was purely incidental. 413 U.S. at 781-82.
Chief Justice Burger thought that Everson and Allen were controlling.
Id. at 798.
---------------------------------------------------------------------------
New York had also enacted a separate program providing tax
relief for low-income parents not qualifying for the tuition
reimbursements; here relief was in the form of a deduction or credit
bearing no relationship to the amounts of tuition paid, but keyed
instead to adjusted gross income. This too was invalidated in Nyquist.
``In practical terms there would appear to be little difference, for
purposes of determining whether such aid has the effect of advancing
religion, between the tax benefit allowed here and the tuition
[reimbursement] grant. . . . The qualifying parent under either program
receives the same form of encouragement and reward for sending his
children to nonpublic schools. The only difference is that one parent
receives an actual cash payment while the other is allowed to reduce by
an arbitrary amount the sum he would otherwise be obliged to pay over to
the State. We see no answer to Judge Hays' dissenting statement below
that `[i]n both instances the money involved represents a charge made
upon the state for the purpose of religious education.'''\83\ Some
difficulty, however, was experienced in distinguishing this program from
the tax exemption approved in Walz.\84\
\83\Committee for Public Educ. & Religious Liberty v. Nyquist,
413 U.S. 756, 789-94 (1973). The quoted paragraph is id. 790-91.
\84\Id. at 791-94. Principally, Walz was said to be different
because of the age of exemption there dealt with, because the Walz
exemption was granted in the spirit of neutrality while the tax credit
under consideration was not, and the fact that the Walz exemption
promoted less entanglement while the credit would promote more.
---------------------------------------------------------------------------
Two subsidiary arguments were rejected by the Court in these
cases. First, it had been argued that the tuition reimbursement program
promoted the free exercise of religion in that it permitted low-income
parents desiring to send their children to school in accordance with
their religious views to do so. The Court agreed that ``tension
inevitably exists between the Free Exercise and the Establishment
Clauses,'' but explained that the tension is ordinarily re
[[Page 987]]
solved through application of the ``neutrality'' principle: government
may neither advance nor inhibit religion. The tuition program
inescapably advanced religion and thereby violated this principle.\85\
In the Pennsylvania case, it was argued that because the program
reimbursed parents who sent their children to nonsectarian schools as
well as to sectarian ones, the portion respecting the former parents was
valid and ``parents of children who attended sectarian schools are
entitled to the same aid as a matter of equal protection. The argument
is thoroughly spurious. . . . The Equal Protection Clause has never been
regarded as a bludgeon with which to compel a State to violate other
provisions of the Constitution.''\86\
\85\Id. at 788-89. But cf. Lynch v. Donnelly, 465 U.S. 668, 673
(1984) (due to Free Exercise Clause, Constitution ``affirmatively
mandates accommodation, not merely tolerance, of all religions'').
\86\Sloan v. Lemon, 413 U.S. 825, 833-35 (1973). In any event,
the Court sustained the district court's refusal to sever the program
and save that portion as to children attending non-sectarian schools on
the basis that since so large a portion of the children benefitted
attended religious schools it could not be assumed the legislature would
have itself enacted such a limited program.
In Wheeler v. Barrera, 417 U.S. 402 (1974), the Court held that
States receiving federal educational funds were required by federal law
to provide ``comparable'' but not equal services to both public and
private school students within the restraints imposed by state
constitutional restrictions on aid to religious schools. In the absence
of specific plans, the Court declined to review First Amendment
limitations on such services.
---------------------------------------------------------------------------
The Nyquist holding was substantially undermined in 1983, the
Court taking a more accommodationist approach toward indirect subsidy of
parochial schools. In Mueller v. Allen,\87\ the Court upheld a Minnesota
deduction from state income tax available to parents of elementary and
secondary school children for expenses incurred in providing tuition,
transportation, textbooks, and various other school supplies. Because
the Minnesota deduction was available to parents of public and private
schoolchildren alike, the Court termed it ``vitally different from the
scheme struck down in Nyquist,'' and more similar to the benefits upheld
in Everson and Allen as available to all schoolchildren.\88\ The Court
declined to look behind the ``facial neutrality'' of the law and
consider empirical evidence of its actual impact, citing a need for
``certainty'' and the lack of ``principled standards'' by which to
evaluate such evidence.\89\ Also important to the Court's refusal to
consider the al
[[Page 988]]
leged disproportionate benefits to parents of parochial schools was the
assertion that, ``whatever unequal effect may be attributed to the
statutory classification can fairly be regarded as a rough return for
the benefits . . . provided to the State and all taxpayers by parents
sending their children to parochial schools.''\90\
\87\463 U.S. 388 (1983).
\88\463 U.S. at 398. Nyquist had reserved the question of
``whether the significantly religious character of the statute's
beneficiaries might differentiate the present cases from a case
involving some form of public assistance (e.g., scholarships) made
available generally without regard to the sectarian-nonsectarian, or
public-nonpublic nature of the institution benefitted.'' 413 U.S. at
782-83 n.38.
\89\463 U.S. at 401. Justice Marshall's dissenting opinion,
joined by Justices Brennan, Blackmun, and Stevens, argued that the
tuition component of the deduction, unavailable to parents of most
public schoolchildren, was by far the most significant, and that the
deduction as a whole ``was little more that a subsidy of tuition
masquerading as a subsidy of general educational expenses.'' 463 U.S. at
408-09. Cf. Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985),
where the Court emphasized that 40 of 41 nonpublic schools at which
publicly funded programs operated were sectarian in nature; and Widmar
v. Vincent, 454 U.S. 263, 275 (1981), holding that a college's open
forum policy had no primary effect of advancing religion ``[a]t least in
the absence of evidence that religious groups will dominate [the]
forum.'' But cf. Bowen v. Kendrick, 487 U.S. 589 (1988), permitting
religious institutions to be recipients under a ``facially neutral''
direct grant program.
\90\463 U.S. at 402.
---------------------------------------------------------------------------
A second factor important in Mueller, present but not
controlling in Nyquist, was that the financial aid was provided to the
parents of schoolchildren rather than to the school, and thus in the
Court's view was ``attenuated'' rather than direct; since aid was
``available only as a result of decisions of individual parents,'' there
was no ```impramatur of state approval.''' The Court noted that, with
the exception of Nyquist, ``all . . . of our recent cases invalidating
state aid to parochial schools have involved the direct transmission of
assistance from the State to the schools themselves.''\91\ Thus Mueller
seemingly stands for the proposition that state subsidies of tuition
expenses at sectarian schools are permissible if contained in a facially
neutral scheme providing benefits, at least nominally, to parents of
public and private schoolchildren alike.\92\
\91\463 U.S. at 399.
\92\See also Witters v. Washington Dept. of Services for the
Blind, 474 U.S. 481 (1986), in which the Court held that provision of
vocational assistance for the blind to a student who used the aid for
tuition at a sectarian college did not have a primary effect of
advancing religion. Without citing Mueller, the Court relied on the fact
that the aid is paid directly to the student for use at the institution
of his or her choice, so that religious institutions received aid ``only
as a result of the genuinely independent and private choices of aid
recipients,'' and on the additional fact that there was nothing in the
record to indicate that ``any significant portion of the aid'' from the
program as a whole would go to religious education. 474 U.S. at 487,
488.
---------------------------------------------------------------------------
The Court, although closely divided at times, has approved quite
extensive public assistance to institutions of higher learning. On the
same day that it first struck down an assistance program for elementary
and secondary private schools, the Court sustained construction grants
to church-related colleges and universities.\93\ The specific grants in
question were for construction of two library buildings, a science
building, a music, drama, and arts building, and a language laboratory.
The law prohibited the financing of any facility for, or the use of any
federally-financed building for, reli
[[Page 989]]
gious purposes, although the restriction on use ran for only twenty
years.\94\ The Court found that the purpose and effect of the grants
were secular and that, unlike elementary and secondary schools,
religious colleges were not so permeated with religious
inculcations.\95\ The supervision required to ensure conformance with
the non-religious-use requirement was found not to constitute
``excessive entanglement,'' inasmuch as a building is nonideological in
character, unlike teachers, and inasmuch as the construction grants were
onetime things and did not continue as did the state programs.
\93\Tilton v. Richardson, 403 U.S. 672 (1971). This was a 5-4
decision.
\94\Because such buildings would still have substantial value
after twenty years, a religious use then would be an unconstitutional
aid to religion, and the period of limitation was struck down, Id. at
682-84.
\95\It was no doubt true, Chief Justice Burger conceded, that
construction grants to religious-related colleges did in some measure
benefit religion, since the grants freed money that the colleges would
be required to spend on the facilities for which the grants were made.
Bus transportation, textbooks, and tax exemptions similarly benefited
religion and had been upheld. ``The crucial question is not whether some
benefit accrues to a religious institution as a consequence of the
legislative program, but whether its principal or primary effect
advances religion.'' Id. at 679.
---------------------------------------------------------------------------
Also sustained was a South Carolina program under which a state
authority would issue revenue bonds for construction projects on
campuses of private colleges and universities. The Court did not decide
whether this special form of assistance could be otherwise sustained,
because it concluded that religion was neither advanced nor inhibited,
nor was there any impermissible public entanglement. ``Aid normally may
be thought to have a primary effect of advancing religion when it flows
to an institution in which religion is so pervasive that a substantial
portion of its functions are subsumed in the religious mission or when
it funds a specifically religious activity in an otherwise substantially
secular setting.''\96\ The colleges involved, though they were
affiliated with religious institutions, were not shown to be so
pervasively religious--no religious test existed for faculty or student
body, a substantial part of the student body was not of the religion of
the affiliation--and state law precluded the use of any state-financed
project for religious activities.\97\
\96\Hunt v. McNair, 413 U.S. 734, 743 (1973).
\97\Id. at 739-40, 741-45. Justices Brennan, Douglas, and
Marshall, dissenting, rejected the distinction between elementary and
secondary education and higher education and foresaw a greater danger of
entanglement than did the Court. Id. at 749.
---------------------------------------------------------------------------
The kind of assistance permitted by Tilton and by Hunt v. McNair
seems to have been broadened when the Court sustained a Maryland program
of annual subsidies to qualifying private institutions of higher
education; the grants were noncategorical but could not be used for
sectarian purposes, a limitation to be policed
[[Page 990]]
by the administering agency.\98\ The plurality opinion found a secular
purpose; found that the limitation of funding to secular activities was
meaningful,\99\ since the religiously affiliated institutions were not
so pervasively sectarian that secular activities could not be separated
from sectarian ones; and determined that excessive entanglement was
improbable, given the fact that aided institutions were not pervasively
sectarian. The annual nature of the subsidy was recognized as posing the
danger of political entanglement, but the plurality thought that the
character of the aided institutions--``capable of separating secular and
religious functions''--was more important.\100\
\98\Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976).
Justice Blackmun's plurality opinion was joined only by Chief Justice
Burger and Justice Powell. Justices White and Rehnquist concurred on the
basis of secular purpose and no primary religious benefit, rejecting
entanglement. Id. at 767. Justice Brennan, joined by Justice Marshall,
dissented, and Justices Stewart and Stevens each dissented separately.
Id. at 770, 773, 775.
\99\Id. 755. In some of the schools mandatory religion courses
were taught, the significant factor in Justice Stewart's view, id. at
773, but overweighed by other factors in the plurality's view.
\100\Id. at 765-66. The plurality also relied on the facts that
the student body was not local but diverse, and that large numbers of
non-religiously affiliated institutions received aid. A still further
broadening of governmental power to extend aid affecting religious
institutions of higher education may be discerned in the Court's summary
affirmance of two lower-court decisions upholding programs of
assistance--scholarships and tuitions grants--to students at college and
university as well as vocational programs in both public and private--
including religious--institutions; one of the programs contained no
secular use restriction at all and in the other one the restriction
seemed somewhat pro forma. Smith v. Board of Governors of Univ. of North
Carolina, 434 U.S. 803 (1977), aff'g 429 F. Supp. 871 (W.D.N.C. 1977);
Americans United v. Blanton, 434 U.S. 803 (1977), aff'g 433 F. Supp. 97
(M.D. Tenn. 1977). In Witters v. Washington Dep't of Services for the
Blind, 474 U.S. 481 (1986), the Court upheld use of a vocational
rehabilitation scholarship at a religious college, emphasizing that the
religious institution received the public money as a result of the
``genuinely independent and private choices of the aid recipients,'' and
not as the result of any decision by the State to sponsor or subsidize
religion.
---------------------------------------------------------------------------
In Bowen v. Kendrick\101\ the Court by a 5-4 vote upheld the
Adolescent Family Life Act (AFLA)\102\ against facial challenge. The Act
permits direct grants to religious organizations for provision of health
care and for counseling of adolescents on matters of pregnancy
prevention and abortion alternatives, and requires grantees to involve
other community groups, including religious organizations, in delivery
of services. All of the Justices agreed that AFLA had valid secular
purposes; their disagreement related to application of the effects and
entanglement tests. The Court relied on
[[Page 991]]
analogy to the higher education cases rather than the cases involving
aid to elementary and secondary schools.\103\ The case presented
conflicting factual considerations. On the one hand, the class of
beneficiaries was broad, with religious groups not predominant among the
wide range of eligible community organizations. On the other hand, there
were analogies to the parochial school aid cases: secular and religious
teachings might easily be mixed, and the age of the targeted group
(adolescents) suggested susceptibility. The Court resolved these
conflicts by holding that AFLA is facially valid, there being
insufficient indication that a significant proportion of the AFLA funds
would be disbursed to ``pervasively sectarian'' institutions, but by
remanding to the district court to determine whether particular grants
to pervasively sectarian institutions were invalid. The Court emphasized
in both parts of its opinion that the fact that ``views espoused [during
counseling] on matters of premarital sex, abortion, and the like happen
to coincide with the religious views of the AFLA grantee would not be
sufficient to show [an Establishment Clause violation].''\104\
\101\487 U.S. 589 (1988). Chief Justice Rehnquist wrote the
Court's opinion, and was joined by Justices White, O'Connor, Scalia, and
Kennedy; in addition, Justice O'Connor and Justice Kennedy, joined by
Justice Scalia, filed separate concurring opinions. Justice Blackmun's
dissenting opinion was joined by Justices Brennan, Marshall, and
Stevens.
\102\Pub. L. 97-35, 95 Stat. 578 (1981), codified at 42 U.S.C.
Sec. 300z et seq.
\103\The Court also noted that the 1899 case of Bradfield v.
Roberts had established that religious organizations may receive direct
aid for support of secular social-welfare cases.
\104\487 U.S. at 621.
---------------------------------------------------------------------------
Although the Court applied the Lemon three-part test in
Kendrick, the case may signal a changing approach to direct aid cases.
The distinction between facial and as-applied invalidity is new in this
context, and may have implications for other Establishment Clause
challenges. Also noteworthy is the fact that the Court expressed
tolerance for a level of monitoring that would be impermissible for
``pervasively sectarian'' organizations, rejecting the ```Catch-22'
argument'' that excessive entanglement would result. Perhaps most
significant is the fact that Justice Kennedy indicated in his separate
concurring opinion that he would look behind the ``pervasively
sectarian'' nature of aid recipients and focus on how aid money is
actually being spent; only if aid is being spent for religious purposes
would he hold that there has been a violation.\105\ This apparent
contrast with the approach previously advocated by Justice Powell
suggests that the balance on the Court may have shifted toward a less
restrictive approach in the parochial school aid context.
\105\Id. at 624-25.
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Governmental Encouragement of Religion in Public Schools:
Released Time.--Introduction of religious education into the public
schools, one of Justice Rutledge's ``great drives,''\106\ has
[[Page 992]]
also occasioned a substantial amount of litigation in the Court. In its
first two encounters, the Court voided one program and upheld another,
in which the similarities were at least as significant as the
differences. Both cases involved ``released time'' programs, the
establishing of a period during which pupils in public schools were to
be allowed, upon parental request, to receive religious instruction. In
the first, the religious classes were conducted during regular school
hours in the school building by outside teachers furnished by a
religious council representing the various faiths, subject to the
approval or supervision of the superintendent of schools. Attendance
reports were kept and reported to the school authorities in the same way
as for other classes, and pupils not attending the religious instruction
classes were required to continue their regular studies. ``The operation
of the State's compulsory education system thus assists and is
integrated with the program of religious instruction carried on by
separate religious sects. Pupils compelled by law to go to school for
secular education are released in part from their legal duty upon the
condition that they attend the religious classes. This is beyond all
question a utilization of the tax-established and tax-supported public
school system to aid religious groups to spread their faith. And it
falls squarely under the ban of the First Amendment . . . .''\107\ The
case was also noteworthy because of the Court's express rejection of the
contention ``that historically the First Amendment was intended to
forbid only government preference of one religion over another, not an
impartial governmental assistance of all religions.''\108\
\106\Everson v. Board of Education, 330 U.S. 1, 63 (Justice
Rutledge dissenting) (quoted supra p.977, n.41).
\107\Illinois ex rel. McCollum v. Board of Education, 333 U.S.
203, 209-10 (1948).
\108\Id. at 211.
---------------------------------------------------------------------------
Four years later, the Court upheld a different released-time
program.\109\ In this one, schools released pupils during school hours,
on written request of their parents, so that they might leave the school
building and go to religious centers for religious instruction or
devotional exercises. The churches reported to the schools the names of
children released from the public schools who did not report for
religious instruction; children not released remained in the classrooms
for regular studies. The Court found the differences between this
program and the program struck down in McCollum to be constitutionally
significant. Unlike McCollum, where ``the classrooms were used for
religious instruction and force of the public school was used to promote
that instruction,'' religious instruction was conducted off school
premises and ``the public schools do
[[Page 993]]
no more than accommodate their schedules.''\110\ We are a religious
people whose institutions presuppose a Supreme Being,'' Justice Douglas
wrote for the Court. ``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.
For it then respects the religious nature of our people and accommodates
the public service to their spiritual needs. To hold that it may not
would be to find in the Constitution a requirement that the government
show a callous indifference to religious groups. That would be
preferring those who believe in no religion over those who do
believe.''\111\
\109\Zorach v. Clauson, 343 U.S. 306 (1952). Justices Black,
Frankfurter, and Jackson dissented. Id. at 315, 320, 323.
\110\Id. at 315. See also Abington School Dist. v. Schempp, 374
U.S. 203, 261-63 (1963) (Justice Brennan concurring) (suggesting that
the important distinction was that ``the McCollum program placed the
religious instruction in the public school classroom in precisely the
position of authority held by the regular teachers of secular subjects,
while the Zorach program did not'').
\111\Id. at 313-14. These cases predated formulation of the
Lemon three-part test for religious establishment, and the status of
that test--as well as the constitutional status of released-time
programs--is unclear. The degree of official and church cooperation may
well not rise to a problem of excessive entanglement, but quaere, what
is the secular purpose and secular effect of such programs? Some
guidance may be provided by Grand Rapids School District v. Ball, 473
U.S. 373 (1985), and Aguilar v. Felton, 473 U.S. 402 (1985), striking
down programs using public school teachers for instruction of parochial
school students in parochial school facilities, but these were 5-4
decisions and the Court's membership has since changed.
---------------------------------------------------------------------------
Governmental Encouragement of Religion in Public Schools:
Prayers and Bible Reading.--Upon recommendation of the state governing
board, a local New York school required each class to begin each school
day by reading aloud the following prayer in the presence of the
teacher: ``Almighty God, we acknowledge our dependence upon Thee, and we
beg Thy blessing upon us, our parents, our teachers and our country.''
Students who wished to do so could remain silent or leave the room. Said
the Court: ``We think that by using its public school system to
encourage recitation of the Regents' prayer, the State of New York had
adopted a practice wholly inconsistent with the Establishment Clause.
There can, of course, be no doubt that New York's program of daily
classroom invocation of God's blessings as prescribed in the Regents'
prayer is a religious activity. . . . [W]e think that the constitutional
prohibition against laws respecting an establishment of religion must at
least mean that in this country it is no part of the business of
government to compose official prayers for any group of the American
people to recite as a part of a religious program carried on by
government.''\112\ ``Neither the fact that the prayer may be
nondenominationally neutral nor the fact that its observance on
\112\Engel v. Vitale, 370 U.S. 421, 424, 425 (1962).
---------------------------------------------------------------------------
[[Page 994]]
the part of the students is voluntary can serve to free it from the
limitations of the Establishment Clause, as it might from the Free
Exercise Clause. . . . The Establishment Clause . . . does not
depend upon any showing of direct governmental compulsion and is
violated by the enactment of laws which establish an official
religion whether those laws operate directly to coerce nonobserving
individuals or not.''\113\
\113\Id. at 430. Justice Black for the Court rejected the idea
that the prohibition of religious services in public schools evidenced
``a hostility toward religion or toward prayer.'' Id. at 434. Rather,
such an application of the First Amendment protected religion from the
coercive hand of government and government from control by a religious
sect. Dissenting alone, Justice Stewart could not ``see how an `official
religion' is established by letting those who want to say a prayer say
it. On the contrary, I think that to deny the wish of these school
children to join in reciting this prayer is to deny them the opportunity
of sharing in the spiritual heritage of our Nation.'' Id. at 444, 445.
---------------------------------------------------------------------------
Following the prayer decision came two cases in which parents
and their school age children challenged the validity under the
Establishment Clause of requirements that each school day begin with
readings of selections from the Bible. Scripture reading, like prayers,
the Court found, was a religious exercise. ``Given that finding the
exercises and the law requiring them are in violation of the
Establishment Clause.''\114\ Rejected were contentions by the State that
the object of the programs was the promotion of secular purposes, such
as the expounding of moral values, the contradiction of the
materialistic trends of the times, the perpetuation of traditional
institutions, and the teaching of literature\115\ and that to forbid the
particular exercises was to choose a ``religion of secularism'' in their
place.\116\ Though the ``place of religion in our society is an exalted
one,'' the Establishment Clause, the Court continued, prescribed that in
``the relationship between man and religion,'' the State must be
``firmly committed to a position of neutrality.''\117\
\114\Abington School Dist. v. Schempp, 374 U.S. 203, 223 (1963).
``[T]he States are requiring the selection and reading at the opening of
the school day of verses from the Holy Bible and the recitation of the
Lord's Prayer by the students in unison. These exercises are prescribed
as part of the curricular activities of students who are required by law
to attend school. They are held in the school buildings under the
supervision and with the participation of teachers employed in those
schools. None of these factors, other than compulsory school attendance,
was present in the program upheld in Zorach v. Clauson.'' Id.
\115\Id. at 223-24. The Court thought the exercises were clearly
religious.
\116\Id. at 225. ``We agree of course that the State may not
establish a `religion of secularism' in the sense of affirmatively
opposing or showing hostility to religion, thus `preferring those who
believe in no religion over those who do believe.' Zorach v. Clauson,
supra, at 314. We do not agree, however, that this decision in any sense
has that effect.''
\117\Id. 226. Justice Brennan contributed a lengthy concurrence
in which he attempted to rationalize the decisions of the Court on the
religion clauses and to delineate the principles applicable. He
concluded that what the establishment clause foreclosed ``are those
involvements of religious with secular institutions which (a) serve the
essentially religious activities of religious institutions; (b) employ
the organs of government for essentially religious purposes; or (c) use
essentially religious means to serve governmental ends, where secular
means would suffice.'' Id. at 230, 295. Justice Stewart again dissented
alone, feeling that the claims presented were essentially free exercise
contentions which were not supported by proof of coercion or of punitive
official action for nonparticipation.
While numerous efforts were made over the years to overturn
these cases, through constitutional amendment and through limitations on
the Court's jurisdiction, the Supreme Court itself has had no occasion
to review the area again. But see Stone v. Graham, 449 U.S. 39 (1980)
(summarily reversing state court and invalidating statute requiring the
posting of the Ten Commandments, purchased with private contributions,
on the wall of each public classroom).
---------------------------------------------------------------------------
[[Page 995]]
In Wallace v. Jaffree,\118\ the Court held invalid an Alabama
statute authorizing a 1-minute period of silence in all public schools
``for meditation or prayer.'' Because the only evidence in the record
indicated that the words ``or prayer'' had been added to the existing
statute by amendment for the sole purpose of returning voluntary prayer
to the public schools, the Court found that the first prong of the Lemon
test had been violated, i.e. that the statute was invalid as being
entirely motivated by a purpose of advancing religion. The Court
characterized the legislative intent to return prayer to the public
schools as ``quite different from merely protecting every student's
right to engage in voluntary prayer during an appropriate moment of
silence during the schoolday,''\119\ and both Justices Powell and
O'Connor in concurring opinions suggested that other state statutes
authorizing moments of silence might pass constitutional muster.\120\
\118\472 U.S. 38 (1985).
\119\Id. at 59.
\120\Justice O'Connor's concurring opinion is notable for its
effort to synthesize and refine the Court's Establishment and Free
Exercise tests (see also the Justice's concurring opinion in Lynch v.
Donnelly), and Justice Rehnquist's dissent for its effort to redirect
Establishment Clause analysis by abandoning the tripartite test,
discarding any requirement that government be neutral between religion
and ``irreligion,'' and confining the scope to a prohibition on
establishing a national church or otherwise favoring one religious group
over another.
---------------------------------------------------------------------------
The school prayer decisions served as precedent for the Court's
holding in Lee v. Weisman\121\ that a school-sponsored invocation at a
high school commencement violated the Establishment Clause. The Court
rebuffed a request to reexamine the Lemon test, finding ``[t]he
government involvement with religious activity in this case [to be]
pervasive, to the point of creating a state-sponsored and state-directed
religious exercise in a public school.'' State officials not only
determined that an invocation and benediction should be given, but also
selected the religious participant and provided him with guidelines for
the content of nonsectarian prayers. The Court, in an opinion by Justice
Kennedy, viewed this state participation
[[Page 996]]
as coercive in the elementary and secondary school setting.\122\ The
state ``in effect required participation in a religious exercise,''
since the option of not attending ``one of life's most significant
occasions'' was no real choice. ``At a minimum,'' the Court concluded,
the Establishment Clause ``guarantees that government may not coerce
anyone to support or participate in religion or its exercise.''
\121\112 S. Ct. 2649 (1992).
\122\The Court distinguished Marsh v. Chambers, 463 U.S. 783,
792 (1983), holding that the opening of a state legislative session with
a prayer by a state-paid chaplain does not offend the Establishment
Clause. The Marsh Court had distinguished Abington on the basis that
state legislators, as adults, are ``presumably not readily susceptible
to `religious indoctrination' or `peer pressure,''' and the Lee Court
reiterated this distinction. 112 S. Ct. at 2660.
---------------------------------------------------------------------------
Governmental Encouragement of Religion in Public Schools:
Curriculum Restriction.--In Epperson v. Arkansas,\123\ the Court struck
down a state statute which made it unlawful for any teacher in any
state-supported educational institution ``to teach the theory or
doctrine that mankind ascended or descended from a lower order of
animals,'' or ``to adopt or use in any such institution a textbook that
teaches'' this theory. Agreeing that control of the curriculum of the
public schools was largely in the control of local officials, the Court
nonetheless held that the motivation of the statute was a fundamentalist
belief in the literal reading of the Book of Genesis and that this
motivation and result required the voiding of the law. ``The law's
effort was confined to an attempt to blot out a particular theory
because of its supposed conflict with the Biblical account, literally
read. Plainly, the law is contrary to the mandate of the First . . .
Amendment to the Constitution.''\124\
\123\393 U.S. 97 (1968).
\124\Id. at 109.
---------------------------------------------------------------------------
Similarly invalidated as having the improper purpose of
advancing religion was a Louisiana statute mandating balanced treatment
of ``creation-science'' and ``evolution-science'' in the public schools.
``The preeminent purpose of the Louisiana legislature,'' the Court found
in Edwards v. Aguillard, ``was clearly to advance the religious
viewpoint that a supernatural being created humankind.''\125\ The Court
viewed as a ``sham'' the stated purpose of protecting academic freedom,
and concluded instead that the legislature's purpose was to narrow the
science curriculum in order to discredit evolution ``by counterbalancing
its teaching at every turn with the teaching of creation science.''\126\
\125\483 U.S. 578, 591 (1987).
\126\483 U.S. at 589. The Court's conclusion was premised on its
finding that ``the term `creation science,' as used by the legislature
. . . embodies the religious belief that a supernatural creator was
responsible for the creation of humankind.'' Id. at at 592.
[[Page 997]]
Access of Religious Groups to School Property.--Although
government may not promote religion through its educational facilities,
it may not bar student religious groups from meeting on public school
property if it makes those facilities available to nonreligious student
groups. To allow religious groups equal access to a public college's
facilities would further a secular purpose, would not constitute an
impermissible benefit to religion, and would pose little hazard of
entanglement.\127\ These principles apply to public secondary schools as
well as to institutions of higher learning.\128\ In 1990 the Court
upheld application of the Equal Access Act\129\ to prevent a secondary
school from denying access to school premises to a student religious
club while granting access to such other ``noncurriculum'' related
student groups as a scuba diving club, a chess club, and a service
club.\130\
\127\Widmar v. Vincent, 454 U.S. 263, 270-75 (1981).
\128\Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226
(1990). The Court had noted in Widmar that university students ``are
less impressionable than younger students and should be able to
appreciate that the University's policy is one of neutrality toward
religion,'' 454 U.S. at 274 n.14. The Mergens plurality ignored this
distinction, suggesting that the secondary school's neutrality was also
evident to its students. 496 U.S. at 252.
\129\Pub. L. 98-377, title VIII, 98 Stat. 1302 (1984); 20 U.S.C.
Sec. Sec. 4071-74.
\130\There was no opinion of the Court on Establishment Clause
issues, a plurality of four led by Justice O'Connor applying the three-
part Lemon test, and concurring Justices Kennedy and Scalia proposing a
less stringent test under which ``neutral'' accommodations of religion
would be permissible as long as they do not in effect establish a state
religion, and as long as there is no coercion of students to participate
in a religious activity. Id. at 2377.
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While the greater number of establishment cases have involved
educational facilities, in other areas as well there have been
contentions that legislative policies have been laws ``respecting'' the
establishment of religion.
Tax Exemptions of Religious Property.--Every State and the
District of Columbia provide for tax exemptions for religious
institutions, and the history of such exemptions goes back to the time
of our establishment as a polity. The only expression by a Supreme Court
Justice prior to 1970 was by Justice Brennan, who deemed tax exemptions
constitutional because the benefit conferred was incidental to the
religious character of the institutions concerned.\131\ Then, in 1970, a
nearly unanimous Court sustained a state exemption from real or personal
property taxation of ``property used exclusively for religious,
educational or charitable purposes'' owned by a corporation or
association which was conducted exclusively for
[[Page 998]]
one or more of these purposes and did not operate for profit.\132\ The
first prong of a two-prong argument saw the Court adopting Justice
Brennan's rationale. Using the secular purpose and effect test, Chief
Justice Burger noted that the purpose of the exemption was not to single
out churches for special favor; instead, the exemption applied to a
broad category of associations having many common features and all
dedicated to social betterment. Thus, churches as well as museums,
hospitals, libraries, charitable organizations, professional
associations, and the like, all non-profit, and all having a beneficial
and stabilizing influence in community life, were to be encouraged by
being treated specially in the tax laws. The primary effect of the
exemptions was not to aid religion; the primary effect was secular and
any assistance to religion was merely incidental.\133\
\131\``If religious institutions benefit, it is in spite of
rather than because of their religious character. For religious
institutions simply share benefits which government makes generally
available to educational, charitable, and eleemosynary groups.''
Abington School Dist. v. Schempp, 374 U.S. 203, 301 (1963) (concurring
opinion).
\132\Walz v. Tax Comm'n, 397 U.S. 664 (1970). Justice Douglas
dissented.
\133\Id. at 672-74.
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For the second prong, the Court created a new test, the
entanglement test,\134\ by which to judge the program. There was some
entanglement whether there were exemptions or not, Chief Justice Burger
continued, but with exemptions there was minimal involvement. But
termination of exemptions would deeply involve government in the
internal affairs of religious bodies, because evaluation of religious
properties for tax purposes would be required and there would be tax
liens and foreclosures and litigation concerning such matters.\135\
\134\Supra, p.973.
\135\397 U.S. at 674-76.
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While the general issue is now settled, it is to be expected
that variations of the exemption upheld in Walz will present the Court
with an opportunity to elaborate the field still further.\136\ For
example, the Court determined that a sales tax exemption applicable only
to religious publications constituted a violation of the Establishment
Clause,\137\ and, on the other hand, that application of a general sales
and use tax provision to religious publications violates neither the
Establishment Clause nor the Free Exercise Clause.\138\
\136\For example, the Court subsequently accepted for review a
case concerning property tax exemption for church property used as a
commercial parking lot, but state law was changed, denying exemption for
purely commercial property and requiring a pro rata exemption for mixed
use, and the Court remanded so that the change in the law could be
considered. Differderfer v. Central Baptist Church, 404 U.S. 412 (1972).
\137\Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989).
\138\Jimmy Swaggart Ministries v. California Bd. of
Equalization, 493 U.S. 378 (1990). Similarly, there is no constitutional
impediment to straightforward application of 26 U.S.C. Sec. 170 to
disallow a charitable contribution for payments to a church found to
represent a reciprocal exchange rather than a contribution or gift.
Hernandez v. Commissioner, 490 U.S. 680 (1989).
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[[Page 999]]
Exemption of Religious Organizations from Generally Applicable
Laws.--The Civil Rights Act's exemption of religious organizations from
the prohibition against religious discrimination in employment\139\ does
not violate the Establishment Clause when applied to a religious
organization's secular, nonprofit activities. The Court held in
Corporation of the Presiding Bishop v. Amos\140\ that a church-run
gymnasium operated as a nonprofit facility open to the public could
require that its employees be church members. Declaring that ``there is
ample room for accommodation of religion under the Establishment
Clause,''\141\ the Court identified a legitimate purpose in freeing a
religious organization from the burden of predicting which of its
activities a court will consider to be secular and which religious. The
rule applying across-the-board to nonprofit activities and thereby
``avoid[ing] . . . intrusive inquiry into religious belief'' also serves
to lessen entanglement of church and state.\142\ The exemption itself
does not have a principal effect of advancing religion, the Court
concluded, but merely allows churches to advance religion.\143\
\139\Section 703 of the Civil Rights Act of 1964, 42 U.S.C.
Sec. 2000e-2, makes it unlawful for any employer to discriminate in
employment practices on the basis of an employee's religion. Section
702, 42 U.S.C. Sec. 2000e-1, exempts from the prohibition ``a religious
corporation . . . with respect to the employment of individuals of a
particular religion to perform work connected with the carrying on by
such corporation . . . of its activities.''
\140\483 U.S. 327 (1987).
\141\483 U.S. at 338.
\142\Id. at 339.
\143\``For a law to have forbidden `effects' . . . it must be
fair to say that the government itself has advanced religion through its
own activities and influence.'' 483 U.S. at 337. Justice O'Connor's
concurring opinion suggests that practically any benefit to religion can
be ``recharacterized as simply `allowing' a religion to better advance
itself,'' and that a ``necessary second step is to separate those
benefits to religion that constitutionally accommodate the free exercise
of religion from those that provide unjustifiable awards of assistance
to religious organizations.'' Id. at 347, 348.
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Sunday Closing Laws.--The history of Sunday Closing Laws goes
back into United States colonial history and far back into English
history.\144\ Commonly, the laws require the observance of the Christian
Sabbath as a day of rest, although in recent years they have tended to
become honeycombed with exceptions. The Supreme Court rejected an
Establishment Clause challenge to Sunday Closing Laws in McGowan v.
Maryland.\145\ The Court acknowledged
[[Page 1000]]
that historically the laws had a religious motivation and were designed
to effectuate concepts of Christian theology. However, ``[i]n light of
the evolution of our Sunday Closing Laws through the centuries, and of
their more or less recent emphasis upon secular considerations, it is
not difficult to discern that as presently written and administered,
most of them, at least, are of a secular rather than of a religious
character, and that presently they bear no relationship to establishment
of religion. . . .''\146\ ``[T]he fact that this [prescribed day of
rest] is Sunday, a day of particular significance for the dominant
Christian sects, does not bar the State from achieving its secular
goals. To say that the States cannot prescribe Sunday as a day of rest
for these purposes solely because centuries ago such laws had their
genesis in religion would give a constitutional interpretation of
hostility to the public welfare rather than one of mere separation of
church and State.''\147\ The choice of Sunday as the day of rest, while
originally religious, now reflected simple legislative inertia or
recognition that Sunday was a traditional day for the choice.\148\ Valid
secular reasons existed for not simply requiring one day of rest and
leaving to each individual to choose the day, reasons of ease of
enforcement and of assuring a common day in the community for rest and
leisure.\149\ More recently, a state statute mandating that employers
honor the Sabbath day of the employee's choice was held invalid as
having the primary effect of promoting religion by weighing the
employee's Sabbath choice over all other interests.\150\
\144\The history is recited at length in the opinion of the
Court in McGowan v. Maryland, 366 U.S. 420, 431-40 (1961), and in
Justice Frankfurter's concurrence. Id. at 459, 470-551 and appendix.
\145\366 U.S. 420 (1961). Decision on the establishment question
in this case also controlled the similar decision on that question in
Two Guys from Harrison-Allentown v. McGinley, 366 U.S. 582 (1961),
Braunfeld v. Brown, 366 U.S. 599 (1961), and Gallagher v. Crown Kosher
Super Market, 366 U.S. 617 (1961). On free exercise in these cases, see
infra, pp.1011-12.
\146\McGowan v. Maryland, 366 U.S. 420, 444 (1961).
\147\Id. at 445.
\148\Id. at 449-52.
\149\Id. Justice Frankfurter, with whom Justice Harlan
concurred, arrived at the same conclusions by a route that did not
require approval of Everson v. Board of Education, from which he had
dissented.
\150\Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985).
---------------------------------------------------------------------------
Conscientious Objection.--Historically, Congress has provided
for alternative service for men who had religious scruples against
participating in either combat activities or in all forms of military
activities; the fact that Congress chose to draw the line of exemption
on the basis of religious belief confronted the Court with a difficult
constitutional question, which, however, the Court chose to avoid by a
somewhat disingenuous interpretation of the stat
[[Page 1001]]
ute.\151\ In Gillette v. United States,\152\ a further constitutional
problem arose in which the Court did squarely confront and validate the
congressional choice. Congress had restricted conscientious objection
status to those who objected to ``war in any form'' and the Court
conceded that there were religious or conscientious objectors who were
not opposed to all wars but only to particular wars based upon
evaluation of a number of factors by which the ``justness'' of any
particular war could be judged; ``properly construed,'' the Court said,
the statute did draw a line relieving from military service some
religious objectors while not relieving others.\153\ Purporting to apply
the secular purpose and effect test, the Court looked almost exclusively
to purpose and hardly at all to effect. Although it is not clear, the
Court seemed to require that a classification must be religiously based
``on its face''\154\ or lack any ``neutral, secular basis for the lines
government has drawn''\155\ in order that it be held to violate the
Establishment Clause. The classification here was not religiously based
``on its face,'' and served ``a number of valid purposes having nothing
to do with a design to foster or favor any sect, religion, or cluster of
religions.''\156\ These purposes, related to the difficulty in
separating sincere conscientious objectors to particular wars from
others with fraudulent claims, included the maintenance of a fair and
efficient selective service system and protection of the integrity of
democratic decision-making.\157\
\151\In United States v. Seeger, 380 U.S. 163 (1965), a
unanimous Court construed the language of the exemption limiting the
status to those who by ``religious training and belief'' (that is, those
who believed in a ``Supreme Being''), to mean that a person must have
some belief which occupies in his life the place or role which the
traditional concept of God occupies in the orthodox believer. After the
``Supreme Being'' clause was deleted, a plurality in Welsh v. United
States, 398 U.S. 333 (1970), construed the religion requirement as
inclusive of moral, ethical, or religious grounds. Justice Harlan
concurred on constitutional grounds, believing that the statute was
clear that Congress had intended to restrict conscientious objection
status to those persons who could demonstrate a traditional religious
foundation for their beliefs and that this was impermissible under the
Establishment Clause. Id. at 344. The dissent by Justices White and
Stewart and Chief Justice Burger rejected both the constitutional and
the statutory basis. Id. at 367.
\152\401 U.S. 437 (1971).
\153\Id. at 449.
\154\Id. at 450.
\155\Id. at 452.
\156\Id.
\157\Id. at 452-60.
---------------------------------------------------------------------------
Regulation of Religious Solicitation.--Although the solicitation
cases have generally been decided under the free exercise or free speech
clauses,\158\ in one instance the Court, intertwining establishment and
free exercise principles, voided a provision in a state charitable
solicitations law that required only those religious organizations that
received less than half their total contributions
[[Page 1002]]
from members or affiliated organizations to comply with the registration
and reporting sections of the law.\159\ Applying strict scrutiny equal
protection principles, the Court held that by distinguishing between
older, well-established churches that had strong membership financial
support and newer bodies lacking a contributing constituency or that may
favor public solicitation over general reliance on financial support
from the members, the statute granted denominational preference
forbidden by the Establishment Clause.\160\
\158\Infra, p.1182.
\159\Larson v. Valente, 456 U.S. 228 (1982). Two Justices
dissented on the merits, id. at 258 (Justices White and Rehnquist),
while two other Justices dissented on a standing issue. Id. at 264
(Chief Justice Burger and Justice O'Connor).
\160\Id. at 246-51. Compare Heffron v. ISKCON, 452 U.S. 640,
652-53 (1981), and id. at 659 n.3 (Justice Brennan, concurring in part
and dissenting in part) (dealing with a facially neutral solicitation
rule distinguishing between religious groups that have a religious tenet
requiring peripatetic solicitation and those who do not).
---------------------------------------------------------------------------
Religion in Governmental Observances.--The practice of opening
legislative sessions with prayers by paid chaplains was upheld in Marsh
v. Chambers,\161\ a case involving prayers in the Nebraska Legislature.
The Court relied almost entirely on historical practice. Congress had
paid a chaplain and opened sessions with prayers for almost 200 years;
the fact that Congress had continued the practice after considering
constitutional objections in the Court's view strengthened rather than
weakened the historical argument. Similarly, the practice was well
rooted in Nebraska and in most other states. Most importantly, the First
Amendment had been drafted in the First Congress with an awareness of
the chaplaincy practice, and this practice was not prohibited or
discontinued. The Court did not address the lower court's findings,\162\
amplified in Justice Brennan's dissent, that each aspect of the Lemon v.
Kurtzman tripartite test had been violated. Instead of constituting an
application of the tests, therefore, Marsh can be read as representing
an exception to their application.\163\
\161\463 U.S. 783 (1983). Marsh was a 6-3 decision, with Chief
Justice Burger's opinion for the Court being joined by Justices White,
Blackmun, Powell, Rehnquist, and O'Connor, and with Justices Brennan,
Marshall, and Stevens dissenting.
\162\Chambers v. Marsh, 675 F.2d 228 (8th Cir. 1982).
\163\School prayer cases were distinguished on the basis that
legislators, as adults, are presumably less susceptible than are
schoolchildren to religious indoctrination and peer pressure, 463 U.S.
at 792, but there was no discussion of the tests themselves.
---------------------------------------------------------------------------
A different form of governmentally sanctioned religious
observance--inclusion of religious symbols in governmentally sponsored
holiday displays--was twice before the Court, with varying results. In
1984, in Lynch v. Donnelly,\164\ the Court found no violation of
[[Page 1003]]
the Establishment Clause occasioned by inclusion of a Nativity scene
(creche) in a city's Christmas display; in 1989, in Allegheny County v.
Greater Pittsburgh ACLU,\165\ inclusion of a creche in a holiday display
was found to constitute a violation. Also at issue in Allegheny County
was inclusion of a menorah in a holiday display; here the Court found no
violation. The setting of each display was crucial to the varying
results in these cases, the determinant being whether the Court majority
believed that the overall effect of the display was to emphasize the
religious nature of the symbols, or whether instead the emphasis was
primarily secular. Perhaps equally important for future cases, however,
was the fact that the four dissenters in Allegheny County would have
upheld both the creche and menorah displays under a more relaxed,
deferential standard.
\164\465 U.S. 668 (1984). Lynch was a 5-4 decision, with Justice
Blackmun, who voted with the majority in Marsh, joining the Marsh
dissenters in this case. Again, Chief Justice Burger wrote the opinion
of the Court, joined by the other majority Justices, and again Justice
Brennan wrote a dissent, joined by the other dissenters. A concurring
opinion was added by Justice O'Connor, and a dissenting opinion was
added by Justice Blackmun.
\165\492 U.S. 573 (1989).
---------------------------------------------------------------------------
Chief Justice Burger's opinion for the Court in Lynch began by
expanding on the religious heritage theme exemplified by Marsh; other
evidence that ```[w]e are a religious people whose institutions
presuppose a Supreme Being'''\166\ was supplied by reference to the
national motto ``In God We Trust,'' the affirmation ``one nation under
God'' in the pledge of allegiance, and the recognition of both
Thanksgiving and Christmas as national holidays. Against that
background, the Court then determined that the city's inclusion of the
creche in its Christmas display had a legitimate secular purpose in
recognizing ``the historical origins of this traditional event long
[celebrated] as a National Holiday,''\167\ and that its primary effect
was not to advance religion. The benefit to religion was called
``indirect, remote, and incidental,'' and in any event no greater than
the benefit resulting from other actions that had been found to be
permissible, e.g. the provision of transportation and textbooks to
parochial school students, various assistance to church-supported
colleges, Sunday closing laws, and legislative prayers.\168\ The Court
also reversed the lower court's finding of entanglement based only on
``political divisiveness.''\169\
\166\465 U.S. at 675, quoting Zorach v. Clausen, 343 U.S. 306,
313 (1952).
\167\465 U.S. at 680.
\168\465 U.S. at 681-82. Note that, while the extent of benefit
to religion was an important factor in earlier cases, it was usually
balanced against the secular effect of the same practice rather than the
religious effects of other practices.
\169\465 U.S. at 683-84.
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Allegheny County was also decided by a 5-4 vote, Justice
Blackmun writing the opinion of the Court on the creche issue, and
[[Page 1004]]
there being no opinion of the Court on the menorah issue.\170\ To the
majority, the setting of the creche was distinguishable from that in
Lynch. The creche stood alone on the center staircase of the county
courthouse, bore a sign identifying it as the donation of a Roman
Catholic group, and also had an angel holding a banner proclaiming
``Gloria in Exclesis Deo.'' Nothing in the display ``detract[ed] from
the creche's religious message,'' and the overall effect was to endorse
that religious message.\171\ The menorah, on the other hand, was placed
outside a government building alongside a Christmas tree and a sign
saluting liberty, and bore no religious messages. To Justice Blackmun,
this grouping merely recognized ``that both Christmas and Chanukah are
part of the same winter-holiday season, which has attained a secular
status'';\172\ to concurring Justice O'Connor, the display's ``message
of pluralism'' did not endorse religion over nonreligion even though
Chanukah is primarily a religious holiday and even though the menorah is
a religious symbol.\173\ The dissenters, critical of the endorsement
test proposed by Justice O'Connor and of the three-part Lemon test,
would instead distill two principles from the Establishment Clause:
``government may not coerce anyone to support or participate in any
religion or its exercise; and it may not, in the guise of avoiding
hostility or callous indifference, give direct benefits to religion in
such a degree that it in fact `establishes a state religion or religious
faith, or tends to do so.'''\174\
\170\Justice O'Connor, who had concurred in Lynch, was the
pivotal vote, joining the Lynch dissenters to form the majority in
Allegheny County. Justices Scalia and Kennedy, not on the Court in 1984,
replaced Chief Justice Burger and Justice Powell in voting to uphold the
creche display; Justice Kennedy authored the dissenting opinion, joined
by the other three.
\171\492 U.S. at 598, 600.
\172\Id. at 616.
\173\Id. at 635.
\174\Id. at 659.
---------------------------------------------------------------------------
Miscellaneous.--In Larkin v. Grendel's Den,\175\ the Court held
that the Establishment Clause is violated by a delegation of
governmental decisionmaking to churches. At issue was a state statute
permitting any church or school to block issuance of a liquor license to
any establishment located within 500 feet of the church or school. While
the statute had a permissible secular purpose of protecting churches and
schools from the disruptions often associated with liquor
establishments, the Court indicated that these purposes could be
accomplished by other means, e.g. an outright ban on liquor outlets
within a prescribed distance, or the vesting of discretionary authority
in a governmental decisionmaker required to consider the views of
affected parties. However, the
[[Page 1005]]
conferral of a veto authority on churches had a primary effect of
advancing religion both because the delegation was standardless (thereby
permitting a church to exercise the power to promote parochial
interests), and because ``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.''\176\ Moreover, the
Court determined, because the veto ``enmeshes churches in the processes
of government,'' it represented an entanglement offensive to the ``core
rationale underlying the Establishment Clause''--``[to prevent] `a
fusion of governmental and religious functions.'''\177\
\175\459 U.S. 116 (1982).
\176\459 U.S. at 125-26. But cf. Marsh v. Chambers, 463 U.S. 783
(1983), involving no explicit consideration of the possible symbolic
implication of opening legislative sessions with prayers by paid
chaplains.
\177\459 U.S. at 126-27, quoting Abington, 374 U.S. 203, 222.
---------------------------------------------------------------------------
FREE EXERCISE OF RELIGION
``The Free Exercise Clause . . . withdraws from legislative
power, state and federal, the exertion of any restraint on the free
exercise of religion. Its purpose is to secure religious liberty in the
individual by prohibiting any invasions there by civil authority.''\178\
It bars ``governmental regulation of religious beliefs as such,''\179\
prohibiting misuse of secular governmental programs ``to impede the
observance of one or all religions or . . . to discriminate invidiously
between religions . . . even though the burden may be characterized as
being only indirect.''\180\ Freedom of conscience is the basis of the
free exercise clause, and government may not penalize or discriminate
against an individual or a group of individuals because of their
religious views nor may it compel persons to affirm any particular
beliefs.\181\ Interpretation is complicated, however, by the fact that
exercise of religion usually entails ritual or other practices that
constitute ``conduct'' rather than pure ``belief.'' When it comes to
protecting conduct as free exercise, the Court has been
inconsistent.\182\ It has long been held that the Free Exercise
[[Page 1006]]
Clause does not necessarily prevent government from requiring the doing
of some act or forbidding the doing of some act merely because religious
beliefs underlie the conduct in question.\183\ What has changed over the
years is the Court's willingness to hold that some religiously motivated
conduct is protected from generally applicable prohibitions.
\178\Abington School District v. Schempp, 374 U.S. 203, 222-23
(1963).
\179\Sherbert v. Verner, 374 U.S 398, 402 (1963) (emphasis in
original).
\180\Braunfeld v. Brown, 366 U.S. 599, 607 (1961).
\181\Sherbert v. Verner, 374 U.S. 398, 402 (1963); Torcaso v.
Watkins, 367 U.S. 488 (1961).
\182\Academics as well as the Justices grapple with the extent
to which religious practices as well as beliefs are protected by the
Free Exercise Clause. For contrasting academic views of the origins and
purposes of the Free Exercise Clause, compare McConnell, The Origins and
Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev.
1410 (1990) (concluding that constitutionally compelled exemptions from
generally applicable laws are consistent with the Clause's origins in
religious pluralism) with Marshall, The Case Against the
Constitutionally Compelled Free Exercise Exemption, 40 Case W. Res. L.
Rev. 357 (1989-90) (arguing that such exemptions establish an invalid
preference for religious beliefs over non-religious beliefs).
\183\E.g., Reynolds v. United States, 98 U.S. 145 (1879);
Jacobson v. Massachusetts, 197 U.S. 11 (1905); Prince v. Massachusetts,
321 U.S. 158 (1944); Braunfeld v. Brown, 366 U.S. 599 (1961); United
States v. Lee, 455 U.S. 252 (1982); Employment Division v. Smith, 494
U.S. 872 (1990).
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The relationship between the Free Exercise and Establishment
Clauses varies with the expansiveness of interpretation of the two
clauses. In a general sense both clauses proscribe governmental
involvement with and interference in religious matters, but there is
possible tension between a requirement of governmental neutrality
derived from the Establishment Clause and a Free-Exercise-derived
requirement that government accommodate some religious practices.\184\
So far, the Court has harmonized interpretation by denying that free-
exercise-mandated accommodations create establishment violations, and
also by upholding some legislative accommodations not mandated by free
exercise requirements. ``This Court has long recognized that government
may (and sometimes must) accommodate religious practices and that it may
do so without violating the Establishment Clause.''\185\ In holding that
a state could not deny unemployment benefits to Sabbatarians who refused
Saturday work, for example, the Court denied that it was ``fostering an
`establishment' of the Seventh-Day Adventist religion, for the extension
of unemployment benefits to Sabbatarians in common with Sunday
worshippers reflects nothing more than the governmental obligation of
neutrality in the face of religious differences, and does not represent
that involvement of religious with secular institutions which it is the
object of the Establishment Clause to forestall.''\186\ Legislation
granting religious exemptions not held to
[[Page 1007]]
have been required by the Free Exercise Clause has also been upheld
against Establishment Clause challenge,\187\ although it is also
possible for legislation to go too far in promoting free exercise.\188\
\184\``The Court has struggled to find a neutral course between
the two Religion Clauses, both of which are cast in absolute terms, and
either of which, if expanded to a logical extreme, would tend to clash
with the other.'' Walz v. Tax Comm'n, 397 U.S. 668-69 (1970).
\185\Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 144-45
(1987). A similar accommodative approach was suggested in Walz: ``there
is room for play in the joints productive of a benevolent neutrality
which will permit religious exercise to exist without [governmental]
sponsorship and without interference.'' 397 U.S. at 669.
\186\Sherbert v. Verner, 374 U.S. 398, 409 (1963). Accord,
Thomas v. Review Bd., 450 U.S. 707, 719-20 (1981). Dissenting in Thomas,
Justice Rehnquist argued that Sherbert and Thomas created unacceptable
tensions between the Establishment and Free Exercise Clauses, and that
requiring the States to accommodate persons like Sherbert and Thomas
because of their religious beliefs ran the risk of ``establishing''
religion under the Court's existing tests. He argued further, however,
that less expansive interpretations of both clauses would eliminate this
artificial tension. Thus, Justice Rehnquist would have interpreted the
Free Exercise Clause as not requiring government to grant exemptions
from general requirements that may burden religious exercise but that do
not prohibit religious practices outright, and would have interpreted
the Establishment Clause as not preventing government from voluntarily
granting religious exemptions. 450 U.S. at 720-27. By 1990 these views
had apparently gained ascendancy, Justice Scalia's opinion for the Court
in the ``peyote'' case suggesting that accommodation should be left to
the political process, i.e., that states could constitutionally provide
exceptions in their drug laws for sacramental peyote use, even though
such exceptions are not constitutionally required. Employment Div. v.
Smith, 494 U.S. 872, 890 (1990).
\187\See, e.g., Walz v. Tax Comm'n, 397 U.S. 664 (upholding
property tax exemption for religious organizations); Corporation of the
Presiding Bishop v. Amos, 483 U.S. 327 (1987) (upholding Civil Rights
Act exemption allowing religious institutions to restrict hiring to
members of religion); Gillette v. United States, 401 U.S. 437, 453-54
(1971) (interpreting conscientious objection exemption from military
service).
\188\See, e.g., Committee for Pub. Educ. & Religious Liberty v.
Nyquist, 413 U.S. 756, 788-89 (1973) (tuition reimbursement grants to
parents of parochial school children violate Establishment Clause in
spite of New York State's argument that program was designed to promote
free exercise by enabling low-income parents to send children to church
schools); Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (state sales
tax exemption for religious publications violates the Establishment
Clause) (plurality opinion).
---------------------------------------------------------------------------
The Belief-Conduct Distinction.--While the Court has
consistently affirmed that the Free Exercise Clause protects religious
beliefs, protection for religiously motivated conduct has waxed and
waned over the years. The Free Exercise Clause ``embraces two concepts--
freedom to believe and freedom to act. The first is absolute, but in the
nature of things, the second cannot be.''\189\ In its first free
exercise case, involving the power of government to prohibit polygamy,
the Court invoked a hard distinction between the two, saying that
although laws ``cannot interfere with mere religious beliefs and
opinions, they may with practices.''\190\ The rule thus propounded
protected only belief, inasmuch as religiously motivated action was to
be subjected to the police power of the state to the same extent as
would similar action springing from other
[[Page 1008]]
motives. The Reynolds no-protection rule was applied in a number of
cases,\191\ but later cases established that religiously grounded
conduct is not always outside the protection of the free exercise
clause.\192\ Instead, the Court began to balance the secular interest
asserted by the government against the claim of religious liberty
asserted by the person affected; only if the governmental interest was
``compelling'' and if no alternative forms of regulation would serve
that interest was the claimant required to yield.\193\ Thus, while
freedom to engage in religious practices was not absolute, it was
entitled to considerable protection.
\189\Cantwell v. Connecticut, 310 U.S. 296, 304 (1940).
\190\Reynolds v. United States, 98 U.S. 145, 166 (1878). ``Crime
is not the less odious because sanctioned by what any particular sect
may designate as `religion.''' Davis v. Beason, 133 U.S. 333, 345
(1890). In another context, Justice Sutherland in United States v.
Macintosh, 283 U.S. 605, 625 (1931), suggested a plenary governmental
power to regulate action in denying that recognition of conscientious
objection to military service was of a constitutional magnitude, saying
that ``unqualified allegiance to the Nation and submission and obedience
to the laws of the land, as well those made for war as those made for
peace, are not inconsistent with the will of God.''
\191\Jacobson v. Massachusetts, 197 U.S. 11 (1905) (compulsory
vaccination); Prince v. Massachusetts 321 U.S. 158 (1944) (child labor);
Cleveland v. United States, 329 U.S. 14 (1946) (polygamy). In Sherbert
v. Verner, 374 U.S. 398, 403 (1963), Justice Brennan asserted that the
``conduct or activities so regulated [in the cited cases] have
invariably posed some substantial threat to public safety, peace or
order.''
\192\Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v.
Yoder, 406 U.S. 205 (1972); cf. Braunfeld v. Brown, 366 U.S. 599, 607
(1961): ``[I]f the State regulates conduct by enacting a general law
within its power, the purpose and effect of which is to advance the
State's secular goals, the statute is valid despite its indirect burden
on religious observance unless the State may accomplish its purpose by
means which do not impose such a burden.''
\193\Sherbert v. Verner, 374 U.S. 398, 403, 406-09 (1963). In
Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court recognized compelling
state interests in provision of public education, but found insufficient
evidence that those interests (preparing children for citizenship and
for self-reliance) would be furthered by requiring Amish children to
attend public schools beyond the eighth grade. Instead, the evidence
showed that the Amish system of vocational education prepared their
children for life in their self-sufficient communities.
---------------------------------------------------------------------------
Recent cases evidence a narrowing of application of the
compelling interest test, and a corresponding constriction on the
freedom to engage in religiously motivated conduct. First, the Court
purported to apply strict scrutiny, but upheld the governmental action
anyhow. Next the Court held that the test is inappropriate in the
contexts of military and prison discipline.\194\ Then, more importantly,
the Court ruled in Employment Division v. Smith that ``if prohibiting
the exercise of religion . . . is not the object . . . but merely the
incidental effect of a generally applicable and otherwise valid
provision, the First Amendment has not been offended.''\195\ Therefore,
the Court concluded, the Free Exercise Clause does not prohibit a state
from applying generally applicable criminal penalties to use of peyote
in a religious ceremony, or from denying unemployment benefits to
persons dismissed from their jobs because of religious ceremonial use of
peyote. Accommodation of such religious practices must be found in ``the
political process,'' the Court noted; statutory religious-practice
exceptions are permissible, but
[[Page 1009]]
not ``constitutionally required.''\196\ The result is tantamount to a
return to the Reynolds belief-conduct distinction.
\194\Goldman v. Weinberger, 475 U.S. 503 (1986); O'Lone v.
Estate of Shabazz, 482 U.S. 342 (1987).
\195\494 U.S. 872, 878 (1990).
\196\Id. at 890.
---------------------------------------------------------------------------
The Mormon Cases.--The Court's first encounter with free
exercise claims occurred in a series of cases in which the Federal
Government and the territories moved against the Mormons because of
their practice of polygamy. Actual prosecutions and convictions for
bigamy presented little problem for the Court, inasmuch as it could
distinguish between beliefs and acts.\197\ But the presence of large
numbers of Mormons in some of the territories made convictions for
bigamy difficult to obtain, and in 1882 Congress enacted a statute which
barred ``bigamists,'' ``polygamists,'' and ``any person cohabiting with
more than one woman'' from voting or serving on juries. The Court
sustained the law, even as applied to persons entering the state prior
to enactment of the original law prohibiting bigamy and to persons as to
whom the statute of limitations had run.\198\ Subsequently, an act of a
territorial legislature which required a prospective voter not only to
swear that he was not a bigamist or polygamist but as well that ``I am
not a member of any order, organization or association which teaches,
advises, counsels or encourages its members, devotees or any other
person to commit the crime of bigamy or polygamy . . . or which
practices bigamy, polygamy or plural or celestial marriage as a
doctrinal rite of such organization; that I do not and will not,
publicly or privately, or in any manner whatever teach, advise, counsel
or encourage any person to commit the crime of bigamy or polygamy . . .
,'' was upheld in an opinion that condemned plural marriage and its
advocacy as equal evils.\199\ And, finally, the Court sustained the
revocation of the charter of the Mormon Church and confiscation of all
church property not actually used for religious worship or for
burial.\200\
\197\Reynolds v. United States, 98 U.S. 145 (1879); cf.
Cleveland v. United States, 329 U.S. 14 (1946) (no religious-belief
defense to Mann Act prosecution for transporting a woman across state
line for the ``immoral purpose'' of polygamy).
\198\Murphy v. Ramsey, 114 U.S. 15 (1885).
\199\Davis v. Beason, 133 U.S. 333 (1890). ``Bigamy and polygamy
are crimes by the laws of all civilized and Christian countries. . . .
To call their advocacy a tenet of religion is to offend the common sense
of mankind. If they are crimes, then to teach, advise and counsel their
practice is to aid in their commission, and such teaching and counseling
are themselves criminal and proper subjects of punishment, as aiding and
abetting crime are in all other cases.'' Id. at 341-42.
\200\The Late Corporation of the Church of Jesus Christ of
Latter-Day Saints v. United States, 136 U.S. 1 (1890). ``[T]he property
of the said corporation . . . [is to be used to promote] the practice of
polygamy--a crime against the laws, and abhorrent to the sentiments and
feelings of the civilized world. . . . The organization of a community
for the spread and practice of polygamy is, in a measure, a return to
barbarism. It is contrary to the spirit of Christianity and of the
civilization which Christianity had produced in the Western world.'' Id.
at 48-49.
[[Page 1010]]
The Jehovah's Witnesses Cases.--In contrast to the Mormons, the
sect known as Jehovah's Witnesses, in many ways as unsettling to the
conventional as the Mormons were,\201\ provoked from the Court a lengthy
series of decisions\202\ expanding the rights of religious proselytizers
and other advocates to utilize the streets and parks to broadcast their
ideas, though the decisions may be based more squarely on the speech
clause than on the free exercise clause. The leading case is Cantwell v.
Connecticut.\203\ Three Jehovah's Witnesses were convicted under a
statute which forbade the unlicensed soliciting of funds for religious
or charitable purposes, and also under a general charge of breach of the
peace. The solicitation count was voided as an infringement on religion
because the issuing officer was authorized to inquire whether the
applicant did have a religious cause and to decline a license if in his
view the cause was not religious. Such power amounted to a previous
restraint upon the exercise of religion and was invalid, the Court
held.\204\ The breach of the peace count arose when the three accosted
two Catholics in a strongly Catholic neighborhood and played them a
phonograph record which grossly insulted the Christian religion in
general and the Catholic Church in particular. The Court voided this
count under the clear-and-present danger test, finding that the interest
sought to be upheld by the State did not justify the suppression of
religious views that simply annoyed listeners.\205\
\201\For recent cases dealing with other religious groups
discomfiting to the mainstream, see Heffron v. ISKCON, 452 U.S. 640
(1981) (Hare Krishnas); Larson v. Valente, 456 U.S. 228 (1982)
(Unification Church).
\202\Most of the cases are collected and categorized by Justice
Frankfurter in Niemotko v. Maryland, 340 U.S. 268, 273 (1951)
(concurring opinion).
\203\310 U.S. 296 (1940).
\204\Id. at 303-07. ``The freedom to act must have appropriate
definition to preserve the enforcement of that protection [of society].
In every case the power to regulate must be so exercised as not, in
attaining a permissible end, unduly to infringe the protected freedom.
. . . [A] State may by general and non-discriminatory legislation
regulate the times, the places, and the manner of soliciting upon its
streets, and of holding meetings thereon; and may in other respects
safeguard the peace, good order and comfort of the community, without
unconstitutionally invading the liberties protected by the Fourteenth
Amendment.'' Id. at 304.
\205\Id. at 307-11. ``In the realm of religious faith, and in
that of political belief, sharp differences arise. In both fields the
tenets of one man may seem the rankest error to his neighbor. To
persuade others to his own point of view, the pleader, as we know, at
times, resorts to exaggeration, to vilification of men who have been, or
are, prominent in church or state, and even to false statement. But the
people of this nation have ordained in the light of history, that, in
spite of the probabilities of excesses and abuses, these liberties are
in the long view, essential to enlightened opinion and right conduct on
the part of the citizens of a democracy.'' Id. at 310.
---------------------------------------------------------------------------
There followed a series of sometimes conflicting decisions. At
first, the Court sustained the application of a non-discriminatory li
[[Page 1011]]
cense fee to vendors of religious books and pamphlets,\206\ but eleven
months later it vacated its former decision and struck down such
fees.\207\ A city ordinance making it unlawful for anyone distributing
literature to ring a doorbell or otherwise summon the dwellers of a
residence to the door to receive such literature was held in violation
of the First Amendment when applied to distributors of leaflets
advertising a religious meeting.\208\ But a state child labor law was
held to be validly applied to punish the guardian of a nine-year old
child who permitted her to engage in ``preaching work'' and the sale of
religious publications after hours.\209\ The Court decided a number of
cases involving meetings and rallies in public parks and other public
places by upholding licensing and permit requirements which were
premised on nondiscriminatory ``times, places, and manners'' terms and
which did not seek to regulate the content of the religious message to
be communicated.\210\
\206\Jones v. Opelika, 316 U.S. 584 (1942).
\207\Jones v. Opelika, 319 U.S. 103 (1943); Murdock v.
Pennsylvania, 319 U.S. 105 (1943). See also Follett v. McCormick, 321
U.S. 573 (1944) (invalidating a flat licensing fee for booksellers).
Murdock and Follett were distinguished in Jimmy Swaggart Ministries v.
California Bd. of Equalization, 493 U.S. 378, 389 (1990) as applying
``only where a flat license fee operates as a prior restraint''; upheld
in Swaggart was application of a general sales and use tax to sales of
religious publications.
\208\Martin v. City of Struthers, 319 U.S. 141 (1943). But cf.
Breard v. City of Alexandria, 341 U.S. 622 (1951) (similar ordinance
sustained in commercial solicitation context).
\209\Prince v. Massachusetts, 321 U.S. 158 (1944).
\210\E.g., Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v.
New York, 340 U.S. 290 (1951); Fowler v. Rhode Island, 345 U.S. 67
(1953); Poulos v. New Hampshire, 345 U.S. 395 (1953). See also Larson v.
Valente, 456 U.S. 228 (1982) (solicitation on state fair ground by
Unification Church members).
---------------------------------------------------------------------------
Free Exercise Exemption From General Governmental
Requirements.--As described above, the Court gradually abandoned its
strict belief-conduct distinction, and developed a balancing test to
determine when a uniform, nondiscriminatory requirement by government
mandating action or nonaction by citizens must allow exceptions for
citizens whose religious scruples forbid compliance. Then, in 1990, the
Court reversed direction in Employment Division v. Smith,\211\ confining
application of the ``compelling interest'' test to a narrow category of
cases.
\211\494 U.S. 872 (1990).
---------------------------------------------------------------------------
In early cases the Court sustained the power of a State to
exclude from its schools children who because of their religious beliefs
would not participate in the salute to the flag,\212\ only within a
short time to reverse itself and condemn such exclusions, but on
[[Page 1012]]
speech grounds rather than religious grounds.\213\ Also, the Court
seemed to be clearly of the view that government could compel those
persons religiously opposed to bearing arms to take an oath to do so or
to receive training to do so,\214\ only in later cases by its statutory
resolution to cast doubt on this resolution,\215\ and still more
recently to leave the whole matter in some doubt.\216\
\212\Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940).
\213\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624
(1943). On the same day, the Court held that a State may not forbid the
distribution of literature urging and advising on religious grounds that
citizens refrain from saluting the flag. Taylor v. Mississippi, 319 U.S.
583 (1943).
\214\See United States v. Schwimmer, 279 U.S. 644 (1929); United
States v. Macintosh, 283 U.S. 605 (1931); and United States v. Bland,
283 U.S. 636 (1931) (all interpreting the naturalization law as denying
citizenship to a conscientious objector who would not swear to bear arms
in defense of the country), all three of which were overruled by
Girouard v. United States, 328 U.S. 61 (1946), on strictly statutory
grounds. See also Hamilton v. Board of Regents, 293 U.S. 245 (1934)
(upholding expulsion from state university for a religiously based
refusal to take a required course in military training); In re Summers,
325 U.S. 561 (1945) (upholding refusal to admit applicant to bar because
as conscientious objector he could not take required oath).
\215\United States v. Seeger, 380 U.S. 163 (1965); see id. at
188 (Justice Douglas concurring); Welsh v. United States, 398 U.S. 333
(1970); and see id. at 344 (Justice Harlan concurring).
\216\Gillette v. United States, 401 U.S. 437 (1971) (holding
that secular considerations overbalanced free exercise infringement of
religious beliefs of objectors to particular wars).
---------------------------------------------------------------------------
Braunfeld v. Brown\217\ held that the free exercise clause did
not mandate an exemption from Sunday Closing Laws for an Orthodox Jewish
merchant who observed Saturday as the Sabbath and was thereby required
to be closed two days of the week rather than one. This requirement did
not prohibit any religious practices, the Court's plurality pointed out,
but merely regulated secular activity in a manner making religious
exercise more expensive.\218\ ``If the State regulates conduct by
enacting a general law within its power, the purpose and effect of which
is to advance the State's secular goals, the statute is valid despite
its indirect burden on religious observance unless the State may
accomplish its purpose by means which do not impose such a
burden.''\219\
\217\366 U.S. 599 (1961). On Sunday Closing Laws and the
establishment clause, see supra, pp. 987-988.
\218\366 U.S. at 605-06.
\219\Id. at 607 (plurality opinion). The concurrence balanced
the economic disadvantage suffered by the Sabbatarians against the
important interest of the State in securing its day of rest regulation.
McGowan v. Maryland, 366 U.S. at 512-22 (1961). Three Justices
dissented. Id. at 561 (Justice Douglas); Braunfeld v. Brown, 366 U.S. at
610 (Justice Brennan), 616 (Justice Stewart).
---------------------------------------------------------------------------
Within two years the Court in Sherbert v. Verner\220\ extended
the line of analysis to require a religious exemption from a secular,
regulatory piece of economic legislation. Sherbert was disqualified from
receiving unemployment compensation because, as a Seventh
[[Page 1013]]
Day Adventist, she would not accept Saturday work; according to state
officials, this meant she was not complying with the statutory
requirement to stand ready to accept suitable employment. This denial of
benefits could be upheld, the Court said, only if ``her disqualification
as a beneficiary represents no infringement by the State of her
constitutional rights of free exercise, or [if] any incidental burden on
the free exercise of appellant's religions may be justified by a
`compelling state interest in the regulation of a subject within the
State's constitutional power to regulate . . .'''\221\ First, the
disqualification was held to impose a burden on the free exercise of
Sherbert's religion; it was an indirect burden and it did not impose a
criminal sanction on a religious practice, but the disqualification
derived solely from her practice of her religion and constituted a
compulsion upon her to forgo that practice.\222\ Second, there was no
compelling interest demonstrated by the State. The only interest
asserted was the prevention of the possibility of fraudulent claims, but
that was merely a bare assertion. Even if there was a showing of
demonstrable danger, ``it would plainly be incumbent upon the appellees
to demonstrate that no alternative forms of regulation would combat such
abuses without infringing First Amendment rights.''\223\
\220\374 U.S. 398 (1963).
\221\Id. at 403, quoting NAACP v. Button, 371 U.S. 415, 438
(1963).
\222\Id. at 403-06.
\223\Id. at 407. Braunfeld was distinguished because of ``a
countervailing factor which finds no equivalent in the instant case--a
strong state interest in providing one uniform day of rest for all
workers.'' That secular objective could be achieved, the Court found,
only by declaring Sunday to be that day of rest. Requiring exemptions
for Sabbatarians, while theoretically possible, appeared to present an
administrative problem of such magnitude, or to afford the exempted
class so great a competitive advantage, that such a requirement would
have rendered the entire statutory scheme unworkable. Id. at 408-09.
Other Justices thought that Sherbert overruled Braunfeld. Id. at 413,
417 (Justice Stewart concurring), 418 (Justice Harlan and White
dissenting).
---------------------------------------------------------------------------
Sherbert was reaffirmed and applied in subsequent cases
involving denial of unemployment benefits. Thomas v. Review Board\224\
involved a Jehovah's Witness who quit his job when his employer
transferred him from a department making items for industrial use to a
department making parts for military equipment. While his belief that
his religion proscribed work on war materials was not shared by all
other Jehovah's Witnesses, the Court held that it was inappropriate to
inquire into the validity of beliefs asserted to be religious so long as
the claims were made in good faith (and the beliefs were at least
arguably religious). The same result was reached in a 1987 case, the
fact that the employee's religious conversion rather than a job
reassignment had created the conflict between work and Sabbath
observance not being considered mate
[[Page 1014]]
rial to the determination that free exercise rights had been burdened by
the denial of unemployment compensation.\225\ Also, a state may not deny
unemployment benefits solely because refusal to work on the Sabbath was
based on sincere religious beliefs held independently of membership in
any established religious church or sect.\226\
\224\450 U.S. 707 (1981).
\225\Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987).
\226\Frazee v. Illinois Dep't of Employment Security, 489 U.S.
829 (1989). Cf. United States v. Seeger, 380 U.S. 163 (1965)
(interpreting the religious objection exemption from military service as
encompassing a broad range of formal and personal religious beliefs).
---------------------------------------------------------------------------
The Court applied the Sherbert balancing test in several areas
outside of unemployment compensation. The first two such cases involved
the Amish, whose religion requires them to lead a simple life of labor
and worship in a tight-knit and self-reliant community largely insulated
from the materialism and other distractions of modern life. Wisconsin v.
Yoder\227\ held that a state compulsory attendance law, as applied to
require Amish children to attend ninth and tenth grades of public
schools in contravention of Amish religious beliefs, violated the Free
Exercise Clause. The Court first determined that the beliefs of the
Amish were indeed religiously based and of great antiquity.\228\ Next,
the Court rejected the State's arguments that the Free Exercise Clause
extends no protection because the case involved ``action'' or
``conduct'' rather than belief, and because the regulation, neutral on
its face, did not single out religion.\229\ Instead, the Court went on
to analyze whether a ``compelling'' governmental interest required such
``grave interference'' with Amish belief and practices.\230\ The
governmental interest was not the general provision of education,
inasmuch as the State and the Amish were in agreement on education
through the first eight grades and since the Amish provided their
children with additional education of a primarily vocational nature. The
State's interest was really that of providing two additional years of
public schooling. Nothing in the record, felt the Court, showed that
this interest outweighed the great harm which it would do to traditional
Amish religious beliefs to impose the compulsory ninth and tenth grade
attendance.\231\
\227\406 U.S. 205 (1972).
\228\Id. at 215-19. Why the Court felt impelled to make these
points is unclear, since it is settled that it is improper for courts to
inquire into the interpretation of religious belief. E.g., United States
v. Lee, 455 U.S. 252, 257 (1982).
\229\Id. at 219-21.
\230\Id. at 221.
\231\Id. at 221-29.
---------------------------------------------------------------------------
But in recent years the Court's decisions evidenced increasing
discontent with the compelling interest test. In several cases the
[[Page 1015]]
Court purported to apply strict scrutiny but nonetheless upheld the
governmental action in question. In United States v. Lee,\232\ for
example, the Court denied the Amish exemption from compulsory
participation in the Social Security system. The objection was that
payment of taxes by Amish employers and employees and the receipt of
public financial assistance were forbidden by their religious beliefs.
Accepting that this was true, the Court nonetheless held that the
governmental interest was compelling and therefore sufficient to justify
the burdening of religious beliefs.\233\ Compulsory payment of taxes was
necessary for the vitality of the system; either voluntary participation
or a pattern of exceptions would undermine its soundness and make the
program difficult to administer.
\232\455 U.S. 252 (1982).
\233\The Court's formulation was whether the limitation on
religious exercise was ``essential to accomplish an overriding
governmental interest.'' 455 U.S. at 257-58. Accord, Hernandez v.
Commissioner, 490 U.S. 680, 699-700 (1989) (any burden on free exercise
imposed by disallowance of a tax deduction was ``justified by the `broad
public interest in maintaining a sound tax system' free of `myriad
exceptions flowing from a wide variety of religious beliefs''').
---------------------------------------------------------------------------
``A compelling governmental interest'' was also found to
outweigh free exercise interests in Bob Jones University v. United
States,\234\ in which the Court upheld the I.R.S.'s denial of tax
exemptions to church-run colleges whose racially discriminatory
admissions policies derived from religious beliefs. The Federal
Government's ``fundamental, overriding interest in eradicating racial
discrimination in education''--found to be encompassed in common law
standards of ``charity'' underlying conferral of the tax exemption on
``charitable'' institutions--``substantially outweighs'' the burden on
free exercise. Nor could the schools' free exercise interests be
accommodated by less restrictive means.\235\
\234\461 U.S. 574 (1983).
\235\461 U.S. at 604.
---------------------------------------------------------------------------
In other cases the Court found reasons not to apply compelling
interest analysis. Religiously motivated speech, like other speech, can
be subjected to reasonable time, place, or manner regulation serving a
``substantial'' rather than ``compelling'' governmental interest.\236\
Sherbert's threshold test, inquiring ``whether government has placed a
substantial burden on the observation of a central religious belief or
practice,''\237\ eliminates other issues. As long as a particular
religion does not proscribe the payment of taxes (as was the case with
the Amish in Lee), the Court has denied that there
\236\Heffron v. ISKCON, 452 U.S. 640 (1981). Requiring Krishnas
to solicit at fixed booth sites on county fair grounds is a valid time,
place, and manner regulation, although, as the Court acknowledged, id.
at 652, peripatetic solicitation was an element of Krishna religious
rites.
\237\As restated in Hernandez v. Commissioner, 490 U.S. 680, 699
(1989).
---------------------------------------------------------------------------
[[Page 1016]]
is any constitutionally significant burden resulting from
``imposition of a generally applicable tax [that] merely decreases
the amount of money [adherents] have to spend on [their] religious
activities.''\238\ The one caveat the Court left--that a generally
applicable tax might be so onerous as to ``effectively choke off an
adherent's religious practices''\239\--may be a moot point in light
of the Court's general ruling in Employment Division v. Smith,
discussed below.
\238\Jimmy Swaggart Ministries v. California Bd. of
Equalization, 493 U.S. 378, 391 (1990). See also Tony and Susan Alamo
Found. v. Secretary of Labor, 471 U.S. 290 (1985) (the Court failing to
perceive how application of minimum wage and overtime requirements would
burden free exercise rights of employees of a religious foundation,
there being no assertion that the amount of compensation was a matter of
religious import); and Hernandez v. Commissioner, 490 U.S. 680 (1989)
(questioning but not deciding whether any burden was imposed by
administrative disallowal of deduction for payments deemed to be for
commercial rather than religious or charitable purposes).
\239\Jimmy Swaggart Ministries, 493 U.S. at 392.
---------------------------------------------------------------------------
The Court also drew a distinction between governmental
regulation of individual conduct, on the one hand, and restraint of
governmental conduct as a result of individuals' religious beliefs, on
the other. Sherbert's compelling interest test has been held
inapplicable in cases viewed as involving attempts by individuals to
alter governmental actions rather than attempts by government to
restrict religious practices. Emphasizing the absence of coercion on
religious adherents, the Court in Lyng v. Northwest Indian Cemetery
Protective Ass'n\240\ held that the Forest Service, even absent a
compelling justification, could construct a road through a portion of a
national forest held sacred and used by Indians in religious
observances. The Court distinguished between governmental actions having
the indirect effect of frustrating religious practices and those
actually prohibiting religious belief or conduct: ```the Free Exercise
Clause is written in terms of what the government cannot do to the
individual, not in terms of what the individual can exact from the
government.'''\241\ Similarly, even a sincerely held religious belief
that assignment of a social security number would rob a child of her
soul was held insufficient to bar the government from using the number
for purposes of its own recordkeeping.\242\ It mattered not how easily
the government could accommodate the religious beliefs or practices (an
exemption from the social security number requirement might have been
granted with only slight impact on the government's recordkeeping
capabilities), since the na
[[Page 1017]]
ture of the governmental actions did not implicate free exercise
protections.\243\
\240\485 U.S. 439 (1988).
\241\Id. at 451, quoting Sherbert v. Verner, 374 U.S. 398, 412
(1963) (Douglas, J., concurring).
\242\Bowen v. Roy, 476 U.S. 693 (1986).
\243\``In neither case . . . would the affected individuals be
coerced by the Government's action into violating their religious
beliefs; nor would either governmental action penalize religious
activity.'' Lyng, 485 U.S. at 449.
---------------------------------------------------------------------------
Compelling interest analysis is also wholly inapplicable in the
context of military rules and regulations, where First Amendment review
``is far more deferential than . . . review of similar laws or
regulations designed for civilian society.''\244\ Thus the Court did not
question the decision of military authorities to apply uniform dress
code standards to prohibit the wearing of a yarmulke by an officer
compelled by his Orthodox Jewish religious beliefs to wear the
yarmulke.\245\
\244\Goldman v. Weinberger, 475 U.S. 503, 507 (1986).
\245\Congress reacted swiftly by enacting a provision allowing
military personnel to wear religious apparel while in uniform, subject
to exceptions to be made by the Secretary of the relevant military
department for circumstances in which the apparel would interfere with
performance of military duties or would not be ``neat and
conservative.'' Pub. L. 100-180, Sec. 508(a)(2), 101 Stat. 1086 (1987);
10 U.S.C. Sec. 774.
---------------------------------------------------------------------------
A high degree of deference is also due decisions of prison
administrators having the effect of restricting religious exercise by
inmates. The general rule is that prison regulations impinging on
exercise of constitutional rights by inmates are ```valid if . . .
reasonably related to legitimate penological interests.'''\246\ Thus
because general prison rules requiring a particular category of inmates
to work outside of buildings where religious services were held, and
prohibiting return to the buildings during the work day, could be viewed
as reasonably related to legitimate penological concerns of security and
order, no exemption was required to permit Muslim inmates to participate
in Jumu'ah, the core ceremony of their religion.\247\ The fact that the
inmates were left with no alternative means of attending Jumu'ah was not
dispositive, the Court being ``unwilling to hold that prison officials
are required by the Constitution to sacrifice legitimate penological
objectives to that end.''\248\
\246\O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)
(quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
\247\O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).
\248\Id. at 351-52 (also suggesting that the ability of the
inmates to engage in other activities required by their faith, e.g.
individual prayer and observance of Ramadan, rendered the restriction
reasonable).
---------------------------------------------------------------------------
Finally, in Employment Division v. Smith\249\ the Court
indicated that the compelling interest test may apply only in the field
of unemployment compensation, and in any event does not apply to require
exemptions from generally applicable criminal laws. Criminal laws are
``generally applicable'' when they apply across
[[Page 1018]]
the board regardless of the religious motivation of the prohibited
conduct, and are ``not specifically directed at . . . religious
practices.''\250\ The unemployment compensation statute at issue in
Sherbert was peculiarly suited to application of a balancing test
because denial of benefits required a finding that an applicant had
refused work ``without good cause.'' Sherbert and other unemployment
compensation cases thus ``stand for the proposition that where the State
has in place a system of individual exemptions, it may not refuse to
extend that system to cases of `religious hardship' without compelling
reason.''\251\ Wisconsin v. Yoder and other decisions holding ``that the
First Amendment bars application of a neutral, generally applicable law
to religiously motivated action'' were distinguished as involving ``not
the Free Exercise Clause alone, but the Free Exercise Clause in
conjunction with other constitutional protections'' such as free speech
or ``parental rights.''\252\ Except in the relatively uncommon
circumstance when a statute calls for individualized consideration,
then, the Free Exercise Clause affords no basis for exemption from a
``neutral, generally applicable law.'' As the Court concluded in Smith,
accommodation for religious practices incompatible with general
requirements must ordinarily be found in ``the political process.''\253\
\249\494 U.S. 872 (1990) (holding that state may apply criminal
penalties to use of peyote in a religious ceremony, and may deny
unemployment benefits to persons dismissed from their jobs because of
religiously inspired use of peyote).
\250\Id. at 878.
\251\Id. at 884.
\252\Id. at 881.
\253\Id. at 890.
---------------------------------------------------------------------------
The ramifications of Smith are potentially widespread. The Court
has apparently returned to a belief-conduct dichotomy under which
religiously motivated conduct is not entitled to special protection.
Laws may not single out religiously motivated conduct for adverse
treatment, but formally neutral laws of general applicability may
regulate religious conduct (along with other conduct) regardless of the
adverse or prohibitory effects on religious exercise. Similar rules
govern taxation. Under the Court's rulings in Smith and Swaggart,
religious exemptions from most taxes are a matter of legislative grace
rather than constitutional command, since most important taxes (e.g.,
income, property, sales and use) satisfy the criteria of formal
neutrality and general applicability, and are not license fees that can
be viewed as prior restraints on expression.\254\ The result is equal
protection, but not substantive protection, for
[[Page 1019]]
religious exercise.\255\ The Court's approach also accords less
protection to religiously-based conduct than is accorded expressive
conduct that implicates speech but not religious values.\256\ On the
practical side, relegation of free exercise claims to the political
process may, as concurring Justice O'Connor warned, result in less
protection for small, unpopular religious sects.\257\
\254\This latter condition derives from the fact that the Court
in Swaggart distinguished earlier decisions by characterizing them as
applying only to flat license fees. See n., supra. See also Laycock, The
Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1, 39-41.
\255\Justice O'Connor, concurring in Smith, argued that ``the
Free Exercise Clause protects values distinct from those protected by
the Equal Protection Clause.'' 494 U.S. at 901.
\256\Although neutral laws affecting expressive conduct are not
measured by a ``compelling interest'' test, they are ``subject to a
balancing, rather than categorical, approach.'' Smith, 494 U.S. at 902
(O'Connor, J., concurring).
\257\Id. at 1613.
---------------------------------------------------------------------------
Religious Test Oaths.--However the Court has been divided in
dealing with religiously-based conduct and governmental compulsion of
action or nonaction, it was unanimous in voiding a state constitutional
provision which required a notary public, as a condition of perfecting
his appointment, to declare his belief in the existence of God. The
First Amendment, considered with the religious oath provision of Article
VI, makes it impossible ``for government, state or federal, to restore
the historically and constitutionally discredited policy of probing
religious beliefs by test oaths or limiting public offices to persons
who have, or perhaps more properly, profess to have, a belief in some
particular kind of religious concept.''\258\
\258\Torcaso v. Watkins, 367 U.S. 488, 494 (1961).
---------------------------------------------------------------------------
Religious Disqualification.--Unanimously, but with great
differences of approach, the Court declared invalid a Tennessee statute
barring ministers and priests from service in a specially called state
constitutional convention.\259\ The Court's decision necessarily implied
that the constitutional provision on which the statute was based,
barring ministers and priests from service as state legislators, was
also invalid.
\259\McDaniel v. Paty, 435 U.S. 618 (1978). The plurality
opinion by Chief Justice Burger, joined by Justices Powell, Rehnquist,
and Stevens, found the case governed by Sherbert v. Verner's strict
scrutiny test. The State had failed to show that its view of the dangers
of clergy participation in the political process had any validity;
Torcaso v. Watkins was distinguished because the State was acting on the
status of being a clergyman rather than on one's beliefs. Justice
Brennan, joined by Justice Marshall, found Torcaso controlling because
imposing a restriction upon one's status as a religious person did
penalize his religious belief, his freedom to profess or practice that
belief. Id. at 629. Justice Stewart also found Torcaso dispositive, id.
at 642, and Justice White found an equal protection violation because of
the restraint upon seeking political office. Id. at 643.
[[Page 1020]]
FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Adoption and the Common Law Background
Madison's version of the speech and press clauses, introduced in
the House of Representatives on June 8, 1789, provided: ``The people
shall not be deprived or abridged of their right to speak, to write, or
to publish their sentiments; and the freedom of the press, as one of the
great bulwarks of liberty, shall be inviolable.''\1\ The special
committee rewrote the language to some extent, adding other provisions
from Madison's draft, to make it read: ``The freedom of speech and of
the press, and the right of the people peaceably to assemble and consult
for their common good, and to apply to the Government for redress of
grievances, shall not be infringed.''\2\ In this form it went to the
Senate, which rewrote it to read: ``That Congress shall make no law
abridging the freedom of speech, or of the press, or the right of the
people peaceably to assemble and consult for their common good, and to
petition the government for a redress of grievances.''\3\ Subsequently,
the religion clauses and these clauses were combined by the Senate.\4\
The final language was agreed upon in conference.
\1\1 Annals of Congress 434 (1789). Madison had also proposed
language limiting the power of the States in a number of respects,
including a guarantee of freedom of the press, Id. at 435. Although
passed by the House, the amendment was defeated by the Senate, supra,
p.957.
\2\Id. at 731 (August 15, 1789).
\3\The Bill of Rights: A Documentary History 1148-49 (B.
Schwartz ed. 1971).
\4\Id. at 1153.
---------------------------------------------------------------------------
Debate in the House is unenlightening with regard to the meaning
the Members ascribed to the speech and press clause and there is no
record of debate in the Senate.\5\ In the course of debate, Madison
warned against the dangers which would arise ``from discussing and
proposing abstract propositions, of which the judgment may not be
convinced. I venture to say, that if we confine ourselves to an
enumeration of simple, acknowledged principles, the ratification will
meet with but little difficulty.''\6\ That the ``simple, acknowledged
principles'' embodied in the First Amendment have occasioned controversy
without end both in the courts and out should alert one to the
difficulties latent in such spare language. Insofar as there is likely
to have been a consensus, it was no doubt the common law view as
expressed by Blackstone. ``The liberty of the
[[Page 1021]]
press is indeed essential to the nature of a free state; but this
consists in laying no previous restraints upon publications, and not in
freedom from censure for criminal matter when published. Every freeman
has an undoubted right to lay what sentiments he pleases before the
public; to forbid this, is to destroy the freedom of the press: but if
he publishes what is improper, mischievous, or illegal, he must take the
consequences of his own temerity. To subject the press to the
restrictive power of a licenser, as was formerly done, both before and
since the Revolution, is to subject all freedom of sentiment to the
prejudices of one man, and make him the arbitrary and infallible judge
of all controverted points in learning, religion and government. But to
punish as the law does at present any dangerous or offensive writings,
which, when published, shall on a fair and impartial trial be adjudged
of a pernicious tendency, is necessary for the preservation of peace and
good order, of government and religion, the only solid foundations of
civil liberty. Thus, the will of individuals is still left free: the
abuse only of that free will is the object of legal punishment. Neither
is any restraint hereby laid upon freedom of thought or inquiry; liberty
of private sentiment is still left; the disseminating, or making public,
of bad sentiments, destructive to the ends of society, is the crime
which society corrects.''\7\
\5\The House debate insofar as it touched upon this amendment
was concerned almost exclusively with a motion to strike the right to
assemble and an amendment to add a right of the people to instruct their
Representatives. 1 Annals of Congress 731-49 (August 15, 1789). There
are no records of debates in the States on ratification.
\6\Id. at 738.
\7\4 W. Blackstone's Commentaries on the Laws of England 151-52
(T. Cooley 2d rev. ed. 1872). See 3 J. Story, Commentaries on the
Constitution of the United States 1874-86 (Boston: 1833). The most
comprehensive effort to assess theory and practice in the period prior
to and immediately following adoption of the Amendment is L. Levy,
Legacy of Suppression: Freedom of Speech and Press in Early American
History (1960), which generally concluded that the Blackstonian view was
the prevailing one at the time and probably the understanding of those
who drafted, voted for, and ratified the Amendment.
---------------------------------------------------------------------------
Whatever the general unanimity on this proposition at the time
of the proposal of and ratification of the First Amendment,\8\
[[Page 1022]]
it appears that there emerged in the course of the Jeffersonian
counterattack on the Sedition Act\9\ and the use by the Adams
Administration of the Act to prosecute its political opponents,\10\
something of a libertarian theory of freedom of speech and press,\11\
which, however much the Jeffersonians may have departed from it upon
assuming power,\12\ was to blossom into the theory undergirding Supreme
Court First Amendment jurisprudence in modern times. Full acceptance of
the theory that the Amendment operates not only to bar most prior
restraints of expression but subsequent punishment of all but a narrow
range of expression, in political discourse and indeed in all fields of
expression, dates from a quite recent period, although the Court's
movement toward that position began in its consideration of limitations
on speech and press in the period following World War I.\13\ Thus, in
1907, Justice Holmes
[[Page 1023]]
could observe that even if the Fourteenth Amendment embodied
prohibitions similar to the First Amendment, ``still we should be far
from the conclusion that the plaintiff in error would have us reach. In
the first place, the main purpose of such constitutional provisions is
`to prevent all such previous restraints upon publications as had been
practiced by other governments,' and they do not prevent the subsequent
punishment of such as may be deemed contrary to the public welfare .
. . . The preliminary freedom extends as well to the false as to the
true; the subsequent punishment may extend as well to the true as to the
false. This was the law of criminal libel apart from statute in most
cases, if not in all.''\14\ But as Justice Holmes also observed,
``[t]here is no constitutional right to have all general propositions of
law once adopted remain unchanged.''\15\
\8\It would appear that Madison advanced libertarian views
earlier than his Jeffersonian compatriots, as witness his leadership of
a move to refuse officially to concur in Washington's condemnation of
``[c]ertain self-created societies,'' by which the President meant
political clubs supporting the French Revolution, and his success in
deflecting the Federalist intention to censure such societies. I. Brant,
James Madison--Father of the Constitution 1787-1800, 416-20 (1950). ``If
we advert to the nature of republican government,'' Madison told the
House, ``we shall find that the censorial power is in the people over
the government, and not in the government over the people.'' 4 Annals of
Congress 934 (1794). On the other hand, the early Madison, while a
member of his county's committee on public safety, had enthusiastically
promoted prosecution of Loyalist speakers and the burning of their
pamphlets during the Revolutionary period. 1 Papers of James Madison
147, 161-62, 190-92 (W. Hutchinson & W. Rachal eds. 1962). There seems
little doubt that Jefferson held to the Blackstonian view. Writing to
Madison in 1788, he said: ``A declaration that the federal government
will never restrain the presses from printing anything they please, will
not take away the liability of the printers for false facts printed.''
13 Papers of Thomas Jefferson 442 (J. Boyd ed. 1955). Commenting a year
later to Madison on his proposed amendment, Jefferson suggested that the
free speech-free press clause might read something like: ``The people
shall not be deprived or abridged of their right to speak, to write or
otherwise to publish anything but false facts affecting injuriously the
life, liberty, property, or reputation of others or affecting the peace
of the confederacy with foreign nations.'' 15 Papers, supra, at 367.
\9\The Act, Ch. 74, 1 Stat. 596 (1798), punished anyone who
would ``write, print, utter or publish . . . any false, scandalous and
malicious writing or writings against the government of the United
States, or either house of the Congress of the United States, or the
President of the United States, with intent to defame the said
government, or either house of the said Congress, or the said President,
or to bring them, or either of them, into contempt or disrepute.'' See
J. Smith, Freedom's Fetters--The Alien and Sedition Laws and American
Civil Liberties (1956).
\10\Id. at 159 et seq.
\11\L. Levy, Legacy of Suppression: Freedom of Speech and Press
in Early American History, ch. 6 (Cambridge, 1960); New York Times Co.
v. Sullivan, 376 U.S. 254, 273-76 (1964). But compare L. Levy, Emergence
of a Free Press (1985), a revised and enlarged edition of Legacy of
Suppression, in which Professor Levy modifies his earlier views, arguing
that while the intention of the Framers to outlaw the crime of seditious
libel, in pursuit of a free speech principle, cannot be established and
may not have been the goal, there was a tradition of robust and rowdy
expression during the period of the framing that contradicts his prior
view that a modern theory of free expression did not begin to emerge
until the debate over the Alien and Sedition Acts.
\12\L. Levy, Jefferson and Civil Liberties--The Darker Side
(Cambridge, 1963). Thus President Jefferson wrote to Governor McKean of
Pennsylvania in 1803: ``The federalists having failed in destroying
freedom of the press by their gag-law, seem to have attacked it in an
opposite direction; that is, by pushing its licentiousness and its lying
to such a degree of prostitution as to deprive it of all credit. . . .
This is a dangerous state of things, and the press ought to be restored
to its credibility if possible. The restraints provided by the laws of
the States are sufficient for this if applied. And I have, therefore,
long thought that a few prosecutions of the most prominent offenders
would have a wholesome effect in restoring the integrity of the presses.
Not a general prosecution, for that would look like persecution; but a
selected one.'' 9 Works of Thomas Jefferson 449 (P. Ford, ed. 1905).
\13\New York Times Co. v. Sullivan, 376 U.S. 254 (1964),
provides the principal doctrinal justification for the development,
although the results had long since been fully applied by the Court. In
Sullivan, Justice Brennan discerned in the controversies over the
Sedition Act a crystallization of ``a national awareness of the central
meaning of the First Amendment,'' id. at 273, which is that the ``right
of free public discussion of the stewardship of public officials . . .
[is] a fundamental principle of the American form of government.'' Id.
at 275. This ``central meaning'' proscribes either civil or criminal
punishment for any but the most maliciously, knowingly false criticism
of government. ``Although the Sedition Act was never tested in this
Court, the attack upon its validity has carried the day in the court of
history. . . . [The historical record] reflect[s] a broad consensus that
the Act, because of the restraint it imposed upon criticism of
government and public officials, was inconsistent with the First
Amendment.'' Id. at 276. Madison's Virginia Resolutions of 1798 and his
Report in support of them brought together and expressed the theories
being developed by the Jeffersonians and represent a solid doctrinal
foundation for the point of view that the First Amendment superseded the
common law on speech and press, that a free, popular government cannot
be libeled, and that the First Amendment absolutely protects speech and
press. 6 Writings of James Madison, 341-406 (G. Hunt. ed. 1908).
\14\Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis
original). Justice Frankfurter had similar views in 1951: ``The historic
antecedents of the First Amendment preclude the notion that its purpose
was to give unqualified immunity to every expression that touched on
matters within the range of political interest. . . . `The law is
perfectly well settled,' this Court said over fifty years ago, `that the
first ten amendments to the Constitution, commonly known as the Bill of
Rights, were not intended to lay down any novel principles of
government, but simply to embody certain guaranties and immunities which
we had inherited from our English ancestors, and which had from time
immemorial been subject to certain well-recognized exceptions arising
from the necessities of the case. In incorporating these principles into
the fundamental law there was no intention of disregarding the
exceptions, which continued to be recognized as if they had been
formally expressed.' That this represents the authentic view of the Bill
of Rights and the spirit in which it must be construed has been
recognized again and again in cases that have come here within the last
fifty years.'' Dennis v. United States, 341 U.S. 494, 521-522, 524
(1951) (concurring opinion). The internal quotation is from Robertson v.
Baldwin, 165 U.S. 275, 281 (1897).
\15\Patterson v. Colorado, 205 U.S. 454, 461 (1907).
---------------------------------------------------------------------------
But in Schenck v. United States,\16\ the first of the post-World
War I cases to reach the Court, Justice Holmes, in the opinion of the
Court, while upholding convictions for violating the Espionage Act by
attempting to cause insubordination in the military service by
circulation of leaflets, suggested First Amendment restraints on
subsequent punishment as well as prior restraint. ``It well may be
[[Page 1024]]
that the prohibition of laws abridging the freedom of speech is not
confined to previous restraints although to prevent them may have been
the main purpose . . . . We admit that in many places and in ordinary
times the defendants in saying all that was said in the circular would
have been within their constitutional rights. But the character of every
act depends upon the circumstances in which it is done. The most
stringent protection of free speech would not protect a man in falsely
shouting fire in a theater and causing a panic. . . . The question in
every case is whether the words used are used in such a nature as to
create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent.'' Justice Holmes
along with Justice Brandeis soon went into dissent in their views that
the majority of the Court was misapplying the legal standards thus
expressed to uphold suppression of speech which offered no threat of
danger to organized institutions.\17\ But it was with the Court's
assumption that the Fourteenth Amendment restrained the power of the
States to suppress speech and press that the doctrines developed.\18\ At
first, Holmes and Brandeis remained in dissent, but in Fiske v.
Kansas,\19\ the Court sustained a First Amendment type of claim in a
state case, and in Stromberg v. California,\20\ a state law was voided
on grounds of its interference with free speech.\21\ State common law
was also voided, the Court in an opinion by Justice Black asserting that
the First Amendment enlarged protections for speech, press, and religion
beyond those enjoyed under English common law.\22\ Development over the
years since has been uneven, but by 1964 the Court could say with
unanimity: ``we consider this case against the background of a profound
national commitment to the principle that debate on public issues should
be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic and
[[Page 1025]]
sometimes unpleasantly sharp attacks on government and public
officials.''\23\ And in 1969, it was said that the cases ``have
fashioned the principle that the constitutional guarantees of free
speech and free press do not permit a State to forbid or proscribe
advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action
and is likely to incite or produce such action.''\24\ This development
and its myriad applications are elaborated in the following sections.
\16\249 U.S. 47, 51-52 (1919) (citations omitted).
\17\Debs v. United States, 249 U.S. 211 (1919); Abrams v. United
States, 250 U.S. 616 (1919); Schaefer v. United States, 251 U.S. 466
(1920); Pierce v. United States, 252 U.S. 239 (1920); United States ex
rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407
(1921). A state statute similar to the federal one was upheld in Gilbert
v. Minnesota, 254 U.S. 325 (1920).
\18\Gitlow v. New York, 268 U.S. 652 (1925); Whitney v.
California, 274 U.S. 357 (1927). The Brandeis and Holmes dissents in
both cases were important formulations of speech and press principles.
\19\274 U.S. 380 (1927).
\20\283 U.S. 359 (1931). By contrast, it was not until 1965 that
a federal statute was held unconstitutional under the First Amendment.
Lamont v. Postmaster General, 381 U.S. 301 (1965). See also United
States v. Robel, 389 U.S. 258 (1967).
\21\And see Near v. Minnesota ex rel. Olson, 283 U.S. 697
(1931); Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299
U.S. 353 (1937); Lovell v. Griffin, 303 U.S. 444 (1938).
\22\Bridges v. California, 314 U.S. 252, 263-68 (1941)
(overturning contempt convictions of newspaper editor and others for
publishing commentary on pending cases).
\23\New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
\24\Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
---------------------------------------------------------------------------
Freedom of Expression: The Philosophical Basis
Probably no other provision of the Constitution has given rise
to so many different views with respect to its underlying philosophical
foundations, and hence proper interpretive framework, as has the
guarantee of freedom of expression--the free speech and free press
clauses.\25\ The argument has been fought out among the commentators.
``The outstanding fact about the First Amendment today is that the
Supreme Court has never developed any comprehensive theory of what that
constitutional guarantee means and how it should be applied in concrete
cases.''\26\ Some of the commentators argue in behalf of a complex of
values, none of which by itself is sufficient to support a broad-based
protection of freedom of expression.\27\ Others would limit the basis of
the First Amendment to one only among a constellation of possible values
and would
[[Page 1026]]
therefore limit coverage or degree of protection of the speech and press
clauses. For example, one school of thought believes that, because of
the constitutional commitment to free self-government, only political
speech is within the core protected area,\28\ although some commentators
tend to define more broadly the concept of ``political'' than one might
suppose from the word alone. Others recur to the writings of Milton and
Mill and argue that protecting speech, even speech in error, is
necessary to the eventual ascertainment of the truth, through conflict
of ideas in the marketplace, a view skeptical of our ability to ever
know the truth.\29\ A broader-grounded view is variously expounded by
scholars who argue that freedom of expression is necessary to promote
individual self-fulfillment, such as the concept that when speech is
freely chosen by the speaker to persuade others it defines and expresses
the ``self,'' promotes his liberty,\30\ or the concept of ``self-
realization,'' the belief that free speech enables the individual to
develop his powers and abilities and to make and influence decisions
regarding his destiny.\31\ The literature is enormous and no doubt the
Justices as well as the larger society are influenced by it, and yet the
decisions, probably in large part because they are the collective
determination of nine individuals, seldom clearly reflect a principled
and consistent acceptance of any philosophy.
\25\While ``expression'' is not found in the text of the First
Amendment, it is used herein, first, as a shorthand term for the
freedoms of speech, press, assembly, petition, association, and the
like, which are comprehended by the Amendment, and, second, as a
recognition of the fact that judicial interpretation of the clauses of
the First Amendment has greatly enlarged the definition commonly
associated with ``speech,'' as the following discussion will reveal. The
term seems well settled, see, e.g., T. Emerson, The System of Freedom of
Expression (1970), although it has been criticized. F. Schauer, Free
Speech: A Philosophical Inquiry, 50-52 (1982). The term also, as used
here, conflates the speech and press clauses, explicitly assuming they
are governed by the same standards of interpretation and that, in fact,
the press clause itself adds nothing significant to the speech clause as
interpreted, an assumption briefly defended infra, pp.1026-29.
\26\T. Emerson, The System of Freedom of Expression 15 (1970).
The practice in the Court is largely to itemize all the possible values
the First Amendment has been said to protect. See, e.g., Consolidated
Edison Co. v. PSC, 447 U.S. 530, 534-35 (1980); First National Bank of
Boston v. Bellotti, 435 U.S. 765, 776-77 (1978).
\27\T. Emerson, The System of Freedom of Expression 6-7 (1970).
For Emerson, the four values are (1) assuring individuals self-
fulfillment, (2) promoting discovery of truth, (3) providing for
participation in decisionmaking by all members of society, and (4)
promoting social stability through discussion and compromise of
differences. For a persuasive argument in favor of an ``eclectic''
approach, see Shriffrin, The First Amendment and Economic Regulation:
Away From a General Theory of the First Amendment, 78 Nw. U.L. Rev. 1212
(1983). A compressive discussion of all the theories may be found in F.
Schauer, Free Speech: A Philosophical Inquiry (1982).
\28\E.g., A. Meiklejohn, Political Freedom (1960); Bork, Neutral
Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971);
BeVier, The First Amendment and Political Speech: An Inquiry Into the
Substance and Limits of Principle, 30 Stan. L. Rev. 299 (1978). This
contention does not reflect the Supreme Court's view. ``It is no doubt
true that a central purpose of the First Amendment `was to protect the
free discussion of governmental affairs.' . . . But our cases have never
suggested that expression about philosophical, social, artistic,
economic, literary, or ethical matters--to take a nonexclusive list of
labels--is not entitled to full First Amendment protection.'' Abood v.
Detroit Bd. of Educ., 431 U.S. 209, 231 (1977).
\29\The ``marketplace of ideas'' metaphor is attributable to
Justice Holmes' opinion in Abrams v. United States, 250 U.S. 616, 630
(1919). See Scanlon, Freedom of Expression and Categories of Expression,
40 U. Pitt. L. Rev. 519 (1979). The theory has been the dominant one in
scholarly and judicial writings. Baker, Scope of the First Amendment
Freedom of Speech, 25 UCLA L. Rev. 964, 967-74 (1978).
\30\E.g., Baker ``Process of Change and the Liberty Theory of
the First Amendment, 55 S. Cal. L. Rev. 293 (1982); Baker, Realizing
Self-Realization: Corporate Political Expenditures and Redish's The
Value of Free Speech, 130 U. Pa. L. Rev. 646 (1982).
\31\Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591
(1982).
---------------------------------------------------------------------------
Freedom of Expression: Is There a Difference Between Speech and
Press
Utilization of the single word ``expression'' to reach speech,
press, petition, association, and the like, raises the central question
of whether the free speech clause and the free press clause are
coextensive; does one perhaps reach where the other does not? It has
[[Page 1027]]
been much debated, for example, whether the ``institutional press'' may
assert or be entitled to greater freedom from governmental regulations
or restrictions than are non-press individuals, groups, or associations.
Justice Stewart has argued: ``That the First Amendment speaks separately
of freedom of speech and freedom of the press is no constitutional
accident, but an acknowledgment of the critical role played by the press
in American society. The Constitution requires sensitivity to that role,
and to the special needs of the press in performing it
effectively.''\32\ But as Chief Justice Burger wrote: ``The Court has
not yet squarely resolved whether the Press Clause confers upon the
`institutional press' any freedom from government restraint not enjoyed
by all others.''\33\
\32\Houchins v. KQED, 438 U.S. 1, 17 (1978) (concurring
opinion). Justice Stewart initiated the debate in a speech, subsequently
reprinted as Stewart, Or of the Press, 26 Hastings L. J. 631 (1975).
Other articles are cited in First National Bank of Boston v. Bellotti,
435 U.S. 765, 795 (1978) (Chief Justice Burger concurring).
\33\Id. at 798. The Chief Justice's conclusion was that the
institutional press had no special privilege as the press.
---------------------------------------------------------------------------
Several Court holdings do firmly point to the conclusion that
the press clause does not confer on the press the power to compel
government to furnish information or to give the press access to
information that the public generally does not have.\34\ Nor in many
respects is the press entitled to treatment different in kind than the
treatment any other member of the public may be subjected to.\35\
``Generally applicable laws do not offend the First Amendment simply
because their enforcement against the press has incidental
effects.''\36\ Yet, it does seem clear that to some extent the press,
because of the role it plays in keeping the public informed and in the
dissemination of news and information, is entitled to particular if not
special deference that others are not similarly entitled to, that its
role constitutionally entitles it to governmental ``sensitivity,'' to
use Justice Stewart's word.\37\ What difference such
[[Page 1028]]
a recognized ``sensitivity'' might make in deciding cases is difficult
to say.
\34\Houchins v. KQED, 438 U.S. 1 (1978), and id. at 16 (Justice
Stewart concurring); Saxbe v. Washington Post, 417 U.S. 843 (1974); Pell
v. Procunier, 417 U.S. 817 (1974); Nixon v. Warner Communications, 435
U.S. 589 (1978). The trial access cases, whatever they may precisely
turn out to mean, recognize a right of access of both public and press
to trials. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe
Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).
\35\Branzburg v. Hayes, 408 U.S. 665 (1972) (grand jury
testimony be newspaper reporter); Zurcher v. Stanford Daily, 436 U.S.
547 (1978) (search of newspaper offices); Herbert v. Lando, 441 U.S. 153
(1979) (defamation by press); Cohen v. Cowles Media Co., 501 U.S. 663
(1991) (newspaper's breach of promise of confidentiality).
\36\Cohen v. Cowles Media, 501 U.S. 663, 669 (1991).
\37\E.g., Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241
(1974); Landmark Communications v. Virginia, 435 U.S. 829 (1978). See
also Zurcher v. Stanford Daily, 436 U.S. 547, 563-67 (1978), and id. at
568 (Justice Powell concurring); Branzburg v. Hayes, 408 U.S. 665, 709
(1972) (Justice Powell concurring). Several concurring opinions in
Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), imply recognition
of some right of the press to gather information that apparently may not
be wholly inhibited by nondiscriminatory constraints. Id. at 582-84
(Justice Stevens), 586 n.2 (Justice Brennan), 599 n.2 (Justice Stewart).
On the other hand, the Court has also suggested that the press is
protected in order to promote and to protect the exercise of free speech
in the society, including the receipt of information by the people.
E.g., Mills v. Alabama, 384 U.S. 214, 218-19 (1966); CBS v. FCC, 453
U.S. 367, 394-95 (1981).
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The most interesting possibility lies in the area of First
Amendment protection of good faith defamation.\38\ Justice Stewart
argued that the Sullivan privilege is exclusively a free press right,
denying that the ``constitutional theory of free speech gives an
individual any immunity from liability for libel or slander.''\39\ To be
sure, in all the cases to date that the Supreme Court has resolved, the
defendant has been, in some manner, of the press,\40\ but the Court's
decision that corporations are entitled to assert First Amendment speech
guarantees against federal and, through the Fourteenth Amendment, state
regulations causes the evaporation of the supposed ``conflict'' between
speech clause protection of individuals only and of press clause
protection of press corporations as well as of press individuals.\41\
The issue, the Court wrote, was not what constitutional rights
corporations have but whether the speech which is being restricted is
expression that the First Amendment protects because of its societal
significance. Because the speech concerned the enunciation of views on
the conduct of governmental affairs, it was protected regardless of its
source; while the First Amendment protects and fosters individual self-
expression as a worthy goal, it also and as important affords the public
access to discussion, debate, and the dissemination of information and
ideas. Despite Bellotti's emphasis upon the nature of the contested
speech being political, it is clear that the same principle,
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