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[p.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

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 [p.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.

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

Supplement: [Pp. 973–74, change text following n.25 to read:]

and in several instances have not been applied at all by the Court.

and in two in[p.974]stances have not been applied at all by the Court. 26

Supplement: [P. 974, change text following n.26 to read:]

Nonetheless, the Court employed the Lemon tests in its most recent Establishment Clause decisions,1 and it remains the case that those tests have served as the primary standard of Establishment Clause validity for the past three decades. However, other tests have also been formulated and used. Justice Kennedy has proffered “coercion” as an alternative test for violations of the Establishment Clause,2 and the Court has used that test as the basis for decision from time to time.3 But that test has been criticized on the grounds it would eliminate a principal distinction between the Establishment Clause and the Free Exercise Clause and make the former a “virtual nullity.” 4 Justice O’Connor has suggested “endorsement” as a clarification of the Lemon test, i.e., that the Establishment Clause is violated if the government intends its action to endorse or disapprove of religion or if a “reasonable observer” would perceive the government’s action as such an endorsement or disapproval 5; and the Court also has used this test for some of its decisions.6 But others have criticized the endorsement test as too amorphous to provide certain guidance.7 Justice O’Connor has also suggested that it may be inappropriate to try to shoehorn all Establishment Clause cases into one test and has called instead for recognition that different contexts may call for different approaches.8 In its two most recent Establishment Clause decisions, it might be noted, the Court employed all three tests in one decision 9 and relied primarily on the Lemon tests in the other.10

In interpreting and applying the Free Exercise Clause, the Court has consistently held religious beliefs to be absolutely immune from governmental interference.11 But it has used a number of standards to review government action restrictive of religiously motivated conduct, ranging from formal neutrality 12 to clear and present danger 13 to strict scrutiny.14 For cases of intentional governmental discrimination against religion, the Court still employs strict scrutiny.15 But for most other free exercise cases it has now reverted to a standard of formal neutrality. “[T]he right of free exercise,” it recently stated, “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ ” 16

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

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.[p.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[p.976]pendent determination of the power but must defer to the interpretation of the body authorized to decide.35

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

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[p.977]to have approved at least an indirect limitation of the authority of hierarchical churches.40

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.


Footnotes

13 Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970) .
14 Id.
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) .
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 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) .

Supplement: [P. 974, add to n.26 following Lee v. Weisman citation:]

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (upholding provision of sign–language interpreter to deaf student attending parochial school); Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687 (1994) (invalidating law creating special school district for village composed exclusively of members of one religious sect); Rosenberger v. University of Virginia, 515 U.S. 819 (1995) (upholding the extension of a university subsidy of student publications to a student religious publication).

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 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”).
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. 426U.S. at 708–20 426U.S. at 708–20.
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.
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.
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).

Supplement Footnotes

1 Agostini v. Felton, 521 U.S. 203 (1997) (upholding under the Lemon tests the provision of remedial educational services by public school teachers to sectarian elementary and secondary schoolchildren on the premises of the sectarian schools); Santa Fe Indep. Sch. Dist. v. Doe, 120S. Ct. 2266 (2000) (holding unconstitutional under the Lemon tests as well as under the coercion and endorsement tests a school district policy permitting high school students to decide by majority vote whether to have a student offer a prayer over the public address system prior to home football games); and Mitchell v. Helms, 120S. Ct. 2530 (2000) (upholding under the Lemon tests a federally funded program providing instructional materials and equipment to public and private elementary and secondary schools, including sectarian schools).
2 County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 655 (1989) (Justice Kennedy concurring in part and dissenting in part).
3 Lee v. Weisman, 505 U.S. 577 (1992) , and Santa Fe Indep. Sch. Dist. v. Doe, 120S. Ct. 2216 (2000).
4 Lee v. Weisman, 505 U.S. 577, 621 (Justice Souter concurring). See also County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 623 (1989) (Justice O’Connor concurring in part and concurring in the judgment).
5 Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (Justice O’Connor concurring); Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 625 (1989) (Justice O’Connor concurring); Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 712 (1994) (Justice O’Connor concurring).
6 Wallace v. Jaffrey, 472 U.S. 38 (1985) ; Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985) ; County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573; Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995) ; and Santa Fe Indep. Sch. Dist. v. Doe, 120S. Ct. 2216 (2000).
7 County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573, 655 (1989) (Justice Kennedy concurring in the judgment in part and dissenting in part); and Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 768 n.3 (1995) (Justice Scalia concurring).
8 Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 718–723 (1994) (Justice O’Connor concurring in part and concurring in the judgment).
9 Santa Fe Indep. Sch. Dist. v. Doe, 120S. Ct. 2266 (2000).
10 Mitchell v. Helms, 120S. Ct. 2530 (2000).
11 Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878); Cantwell v. Connecticut, 310 U.S. 296 (1940) ; Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) .
12 Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878); Braunfeld v. Brown, 366 U.S. 599 (1961) .
13 Cantwell v. Connecticut, 310 U.S. 296 (1940) .
14 Sherbert v. Verner, 374 U.S. 398 (1963) ; Wisconsin v. Yoder, 406 U.S. 205 (1972) .
15 Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) .
16 Employment Div. v. Smith, 494 U.S. 872, 879 (1990) , quoting United States v. Lee, 455 U.S. 252, 263, n.3 (1982) (Justice Stevens concurring in the judgment).
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