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.
When the government provides financial aid to religious entities, as opposed to providing other types of aid such as facilities or supplies, such support presents heightened Establishment Clause concerns.1 The Court has recognized that “financial support” of religion was squarely in the minds of those who adopted the Establishment Clause.2
Historically, the Supreme Court generally evaluated such aid under the three-part framework of Lemon v. Kurtzman—although its financial aid cases have also reflected the varying approaches to Lemon, including the endorsement approach.3 While the Court has since “abandoned” the Lemon test in favor of an approach that looks to historical tradition,4 it has not specifically overruled that opinion or some other cases applying that analysis, meaning the outcomes of those rulings may still be considered binding precedent. Accordingly, particularly in light of the fact that the Court has not frequently applied a test looking to historical traditions in the context of financial aid,5 there is some uncertainty regarding how at least certain types of financial aid may be reviewed in the future.
In addition, one central issue in modern Establishment Clause jurisprudence concerns who decides that aid will be provided to a religious entity. The Supreme Court has said financial aid will be especially problematic if the government is giving funds directly to religious entities, as opposed to giving funds to religious entities indirectly—that is, giving funds to third parties who privately choose to use public funds to support religious entities.6 The Court has said that indirect aid will generally be permissible under Lemon if the “government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice.” 7
In a few cases, the Supreme Court has considered the denial of financial assistance, and has held in those cases that the government did not violate the Establishment Clause either by imposing a generally applicable tax on a religious entity8 or denying a tax exemption for religiously motivated activity.9
- See, e.g., Mitchell v. Helms, 530 U.S. 793, 818–19 (2000) (plurality opinion); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 842, 844 (1995); Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947).
- Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970).
- See Amdt220.127.116.11.3 Adoption of the Lemon Test; Amdt18.104.22.168.4 Application of the Lemon Test.
- Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 22 (U.S. June 27, 2022).
- Everson v. Board of Education, 330 U.S. 1, 8–14 (1947), discussed infra Amdt22.214.171.124.2 Early Cases and Everson v. Board of Education, looked to history to inform its understanding of the general principles animating the Religion Clauses. Additionally, Walz v. Tax Comm’n, 397 U.S. 664, 675–80 (1970), discussed infra Amdt126.96.36.199.3 Adoption of the Lemon Test, looked to historical practice in addition to the Lemon factors to evaluate the constitutionality of a tax exemption.
- See, e.g., Locke v. Davey, 540 U.S. 712, 719 (2004). See also Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002); Lemon v. Kurtzman, 403 U.S. 602, 621 (1971). Cf. Helms, 530 U.S. at 818 (plurality opinion) ( “Whether one chooses to label this [non-financial aid] program ‘direct’ or ‘indirect’ is a rather arbitrary choice, one that does not further the constitutional analysis.” ).
- Zelman, 536 U.S. at 652. Zelman analyzed indirect aid programs under the “purpose” and “effect” prongs of the Lemon test. Id. at 649–50.
- Jimmy Swaggart Ministries v. Cal. Bd. of Equalization, 493 U.S. 378, 394 (1990).
- Hernandez v. Commissioner, 490 U.S. 680, 695 (1989); Bob Jones Univ. v. United States, 461 U.S. 574, 604 n.30 (1983); see also infra Amdt188.8.131.52.5 Zelman and Indirect Aid.