The explication of the religion clauses by scholars in the nineteenth century gave 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 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

“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

Not until the Supreme Court held the religion clauses applicable to the states in the 1940s10 did it have much opportunity to interpret them. But it quickly gave them a broad construction. In Everson v. Board of Education,11 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 also those that “aid all religions.” With respect to the Free Exercise Clause, it asserted in Wisconsin v. Yoder12 that “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.”

More recent decisions, however, evidence a narrower interpretation of the religion clauses. Indeed, in Employment Division, Oregon Department of Human Resources v. Smith13 the Court abandoned its earlier view and held that the Free Exercise Clause never “relieve[s] an individual of the obligation to comply with a ‘valid and neutral law of general applicability.’ ” On the Establishment Clause the Court has not wholly repudiated its previous holdings, but recent decisions have evidenced a greater sympathy for the view that the clause bars “preferential” governmental promotion of some religions but allows governmental promotion of all religion in general.14 Nonetheless, the Court remains sharply split on how to interpret both clauses.

Before considering in detail the development of the two religion clauses by the Supreme Court, one should notice briefly the tests the Court has articulated to adjudicate the religion cases. At the same time it should be emphasized that the Court has noted that 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.”15 While later cases have relied on a series of well-defined, if difficult-to-apply, tests, the Court has cautioned that “the purpose [of the religion clauses] was to state an objective, not to write a statute.”16

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.”17 In Reynolds v. United States,18 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.19 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.20 The concept of neutrality itself is “a coat of many colors,”21 and three standards that seemingly could be stated in objective fashion emerged as tests of Establishment Clause validity. The first two standards emerged together. “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.”22 The third test emerged several years later and asks 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.”23 In 1971, these three tests were combined and restated in Chief Justice Burger’s opinion for the Court in Lemon v. Kurtzman,24 and are frequently referred to by reference to that case name.

Although at one time accepted in principle by all the Justices,25 the tests have sometimes been difficult to apply,26 have recently come under direct attack by some Justices,27 and in several instances the Court has not applied them at all.28 Nonetheless, the Court employed the Lemon tests in several recent Establishment Clause decisions,29 and those tests remain the primary standard of Establishment Clause validity. Other tests, however, have also been formulated and used. Justice Kennedy has proffered “coercion” as an alternative test for violations of the Establishment Clause,30 and the Court has used that test as the basis for decision from time to time.31 But that test has been criticized on the grounds that it would eliminate a principal distinction between the Establishment Clause and the Free Exercise Clause and make the former a “virtual nullity.”32 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.33 But others have criticized that test as too amorphous to provide adequate guidance.34 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.35 In two Establishment Clause decisions, the Court employed all three tests in one decision36 and relied primarily on a modified version of the Lemon tests in the other.37

In interpreting and applying the Free Exercise Clause, the Court has consistently held religious beliefs to be absolutely immune from governmental interference.38 But it has used a number of standards to review government action restrictive of religiously motivated conduct, ranging from formal neutrality39 to clear and present danger40 to strict scrutiny.41 For cases of intentional governmental discrimination against religion, the Court still employs strict scrutiny42 But for most other free exercise cases it has now reverted to a standard of formal neutrality. “[T]he right of free exercise,” it has 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).’ ”43

One value that both religion clauses serve is to enforce governmental neutrality in deciding controversies arising out of religious disputes. Schisms sometimes develop 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 control 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.

The first such case was Watson v. Jones,44 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,45 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 that 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.”46 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 held, is to look at the church rules: if the church is a hierarchical one that reposes determination of ecclesiastical issues in a certain body, the resolution by that body is determinative, whereas if the church is a congregational one that prescribes action by a majority vote, that determination will prevail.47 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.48 In a 1976 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 independent determination of the power but must defer to the interpretation of the church body authorized to decide.49

In Jones v. Wolf,50 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 that 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. But rather than requiring deference to the decision of the church body, 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 congregational majority.51 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.52 The dissent argued that to permit a court narrowly to view only the church documents relating to property ownership permitted it to ignore 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.53

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 to have approved at least an indirect limitation of the authority of hierarchical churches.54

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 wing of a hospital owned and operated by a Roman Catholic order that was to be devoted to the care of the poor. The Court viewed the hospital primarily as a secular institution so chartered by Congress and not as a religious or sectarian body, and thus avoided the constitutional issue.58 But, when the right of local authorities to provide free transportation for children attending parochial schools reached the Court, it adopted a very broad view of the restrictions imposed by the Establishment Clause. “The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or 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.’ ”59

But, despite this interpretation, the majority sustained the provision of transportation. Although recognizing that “it approaches the verge” of the state’s constitutional power, Justice Black found that the transportation was a form of “public welfare legislation” that was being extended “to all its citizens without regard to their religious belief.”60 “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.”61 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.62

The Court in 1968 relied on the “child benefit” theory to sustain state loans of textbooks to parochial school students.63 Using the secular purpose and effect tests,64 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 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.”65

From these beginnings, the case law on the discretion of state and federal governmental assistance to sectarian elementary and secondary schools as well as other religious entities has multiplied. Through the 1970s, at least, the law became as restrictive in fact as the dicta in the early cases suggested, except for the provision of some assistance to children under the “child benefit” theory. Since that time, the Court has gradually adopted a more accommodating approach. It has upheld direct aid programs that have been of only marginal benefit to the religious mission of the recipient elementary and secondary schools, tax benefit and scholarship aid programs where the schools have received the assistance as the result of the independent decisions of the parents or students who initially receive the aid, and in its most recent decisions direct aid programs which substantially benefit the educational function of such schools. Indeed, in its most recent decisions the Court has overturned several of the most restrictive school aid precedents from its earlier jurisprudence. Throughout, the Court has allowed greater discretion with respect to aid programs benefiting religiously affiliated colleges and social services agencies.

A secular purpose is the first requirement of the Lemon tripartite test 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.66

The primary secular effect and no excessive entanglement aspects of the Lemon test, however, have proven much more divisive. As a consequence, the Court’s applications of these tests have not always been consistent, and the rules guiding their application have not always been easy to decipher. Moreover, in its most recent decisions the Court has substantially modified the strictures these tests have previously imposed on public aid to pervasively sectarian entities.

In applying the primary effect and excessive entanglement tests, the Court has drawn a distinction between public aid programs that directly aid sectarian entities and those that do so only indirectly. Aid provided directly, the Court has said, must be limited to secular use lest it have a primary effect of advancing religion. The Establishment Clause “absolutely prohibit[s] government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith.”67 The government may provide direct support to the secular services and programs sponsored by religious entities, but it cannot directly subsidize such organizations’ religious activities or proselytizing.68 Thus, the Court struck down as unconstitutional a program providing grants for the maintenance and repair of sectarian elementary and secondary school facilities, because the grants had no restrictions to prevent their use for such purposes as defraying the costs of building or maintaining chapels or classrooms in which religion is taught.69 It also struck down a program subsidizing field trip transportation for children attending sectarian elementary and secondary schools, because field trips are inevitably interwoven with the schools’ educational functions.70

But the Court has not imposed a secular use limitation on aid programs that benefit sectarian entities only indirectly, i.e., as the result of decisions by someone other than the government itself. The initial beneficiaries of the public aid must be determined on the basis of religiously neutral criteria, and they must have a genuine choice about whether to use the aid at sectarian or nonsectarian entities. But, where those standards have been met, the Court has upheld indirect aid programs even though the sectarian institutions that ultimately benefit may use the aid for religious purposes. Moreover, the Court has gradually broadened its understanding of what constitutes a genuine choice so that now most voucher or tax benefit programs benefiting the parents of children attending sectarian schools seem able to pass constitutional muster.

Thus, the Court initially struck down tax benefit and educational voucher programs where the initial beneficiaries were limited to the universe of parents of children attending sectarian schools and where the aid, as a consequence, was virtually certain to go to sectarian schools.71 Subsequently, however, it upheld a state program that allowed taxpayers to take a deduction from their gross income for educational expenses, including tuition, incurred in sending their children to public or private schools, because the deduction was “available for educational expenses incurred by all parents” and the aid became available to sectarian schools “only as a result of numerous, private choices of individual parents of school-age children.”72 It upheld for the same reasons a vocational rehabilitation program that made a grant to a blind person for training at a Bible college for a religious vocation73 and another program that provided a sign-language interpreter for a deaf student attending a sectarian secondary school.74 Most recently, it upheld as constitutional a tuition voucher program made available to the parents of children attending failing public schools, notwithstanding that most of the private schools at which the vouchers could be used were sectarian in nature.75 Whether the parents had a genuine choice among religious and secular options in using the vouchers, the Court said, had to be evaluated on the basis not only of the private schools where the vouchers could be redeemed but also by examining the full range of educational options open to them, including various public school options.

In applying the primary effect and excessive entanglement tests, the Court has also, until recently, drawn a distinction between religious institutions that are pervasively sectarian and those that are not. Organizations that are permeated by a religious purpose and character in all that they do have often been held by the Court to be constitutionally ineligible for direct public aid. Direct aid to religion-dominated institutions inevitably violates the primary effect test, the Court has said, because such aid generally cannot be limited to secular use in such entities and, as a consequence, it has a primary effect of advancing religion.76 Moreover, any effort to limit the use of public aid by such entities to secular use inevitably falls afoul of the excessive entanglement test, according to the Court, because the risk of diversion of the aid to religious use is so great that it necessitates an intrusive government monitoring.77 But, direct aid to religious entities that are not pervasively sectarian, the Court held, is constitutionally permissible, because the secular functions of such entities can be distinguished from their religious ones for purposes of public aid and because the risk of diversion of the aid to religious use is attenuated and does not require an intrusive government monitoring. As a practical matter, this distinction has had its most serious consequences for programs providing aid directly to sectarian elementary and secondary schools, because the Court has, until recently, presumed such schools to be pervasively sectarian and direct aid, as a consequence, to be severely limited.78 The Court has presumed to the contrary with respect to religiously affiliated colleges, hospitals, and social services providers; and as a consequence it has found direct aid programs to such entities to be permissible.79

In its most recent decisions the Court has modified both the primary effect and excessive entanglement prongs of the Lemon test as they apply to aid programs directly benefiting sectarian elementary and secondary schools; and in so doing it has overturned several prior decisions imposing tight constraints on aid to pervasively sectarian institutions. In Agostini v. Felton80 the Court, in a 5–4 decision, abandoned the presumptions that public school teachers giving instruction on the premises of sectarian elementary and secondary schools will be so affected by the religiosity of the environment that they will inculcate religion and that, consequently, an excessively entangling monitoring of their services is constitutionally necessary. In Mitchell v. Helms,81 in turn, the Court abandoned the presumptions that such schools are so pervasively sectarian that their secular educational functions cannot be differentiated from their religious educational functions and that direct aid to their educational functions, consequently, violates the Establishment Clause. In reaching these conclusions and upholding the aid programs in question, the Court overturned its prior decision in Aguilar v. Felton82 and parts of its decisions in Meek v. Pittenger,83 Wolman v. Walter,84 and Grand Rapids School District v. Ball.85

Thus, the Court’s jurisprudence concerning public aid to sectarian organizations has evolved, particularly as it concerns public aid to sectarian elementary and secondary schools. That evolution has given some uncertainty to the rules that apply to any given form of aid; and in both Agostini v. Felton86 and Mitchell v. Helms87 the Court left open the possibility of a further evolution in its thinking. Nonetheless, the cases give substantial guidance.

State aid to church-connected schools was first found to have gone over the “verge”88 in Lemon v. Kurtzman.89 The Court struck down 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 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, but found excessive entanglement. 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 . . . .”90 Because the schools concerned were religious schools, because they were under the control of the church hierarchy, and 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 use of aid] are obeyed and the First Amendment otherwise respected.”91 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.92

Two programs of assistance through the provision of equipment and services to private, including sectarian, schools were invalidated in Meek v. Pittenger.93 First, the loan of instructional material and equipment directly to nonpublic elementary and secondary schools was voided as constituting impermissible assistance to religion. This holding was based on the fact that 75 percent of the qualifying schools were church-related or religiously affiliated educational institutions, and that 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.94 Second, the provision of auxiliary 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 found that, even though the teachers under this program—unlike those under one of the programs struck down in Lemon v. Kurtzman—were public employees rather than employees of the religious schools, the continuing surveillance necessary to ensure that the teachers remained religiously neutral gave rise to a constitutionally intolerable degree of entanglement between church and state.95

In two 1985 cases, the Court 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,96 the Court invalidated two programs conducted in leased private school classrooms, one taught during the regular school day by public school teachers,97 and the other taught after regular school hours by part-time “public” teachers otherwise employed as full-time teachers by the sectarian school.98 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.”99 In Aguilar v. Felton,100 the Court invalidated a 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.”101

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 the state would reimburse.102 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.103 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 that contained safeguards against religious use of the tests was sustained even though the Court recognized the incidental benefit to the schools.104

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. Several different forms of assistance to students were at issue in Wolman v. Walter.105 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 use. But, though the Court adhered to its ruling permitting the states to lend secular textbooks used in the public schools to pupils attending religious schools,106 it declined to extend the precedent to permit the states to lend to pupils or their parents instructional materials and equipment, such as projectors, tape recorders, maps, globes and science kits, even though the materials and equipment were identical to those used in the public schools.107 Nor was a state permitted to pay the costs to religious schools of field trip transportation, such as it did to public school students.108

The Court’s later decisions, however, rejected the reasoning and overturned the results of several of these decisions. In two rulings, the Court reversed course with respect to the constitutionality of public school personnel’s providing educational services on the premises of pervasively sectarian schools. First, in Zobrest v. Catalina Foothills School District109 the Court held that the public subsidy of a sign-language interpreter for a deaf student attending a parochial school created no primary effect or entanglement problems. The payment did not relieve the school of an expense that it would otherwise have borne, the Court stated, and the interpreter had no role in selecting or editing the content of any of the lessons. Reviving the child benefit theory of its earlier cases, the Court wrote: “The service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as ‘disabled’ under the IDEA, without regard to the ‘sectarian-nonsectarian, or public-nonpublic nature’ of the school the child attends.”110

Second, and more pointedly, the Court in Agostini v. Felton111 overturned its decision in Aguilar v. Felton,112 which had struck down the Title I program as administered in New York City, as well as the analogous parts of its decisions in Meek v. Pittenger113 and Grand Rapids School District v. Ball.114 The assumptions on which those decisions had rested, the Court stated, had been “undermined” by its more recent decisions. Decisions such as Zobrest and Witters v. Washington Department of Social Services,115 it said, had repudiated the notions that the placement of a public employee in a sectarian school creates an “impermissible symbolic link” between government and religion, that “all government aid that directly aids the educational function of religious schools” is constitutionally forbidden, that public teachers in a sectarian school necessarily pose a serious risk of inculcating religion, and that “pervasive monitoring of [such] teachers is required.” The proper criterion under the primary effect prong of the Lemon test, the Court asserted, is religious neutrality, i.e., whether “aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a non-discriminatory basis.”116 Finding the Title I program to meet that test, the Court concluded that “accordingly, we must acknowledge that Aguilar, as well as the portion of Ball addressing Grand Rapids’ Shared Time program, are no longer good law.”117

Later, in Mitchell v. Helms118 the Court abandoned the presumptions that religious elementary and secondary schools are so pervasively sectarian that they are constitutionally ineligible to participate in public aid programs directly benefiting their educational functions and that direct aid to such institutions must be subject to an intrusive and constitutionally fatal monitoring. At issue in the case was a federal program that distributed funds to local educational agencies to provide instructional materials and equipment, such as computer hardware and software, library books, movie projectors, television sets, VCRs, laboratory equipment, maps, and cassette recordings, to public and private elementary and secondary schools. Virtually identical programs had previously been held unconstitutional by the Court in Meek v. Pittenger119 and Wolman v. Walter.120 But in this case the Court overturned those decisions and held the program to be constitutional.

Mitchell had no majority opinion. The opinions of Justice Thomas, joined by Chief Justice Rehnquist and Justices Scalia and Kennedy, and of Justice O’Connor, joined by Justice Breyer, found the program constitutional. They agreed that to pass muster under the primary effect prong of the Lemon test direct public aid has to be secular in nature and distributed on the basis of religiously neutral criteria. They also agreed, in contrast to past rulings, that sectarian elementary and secondary schools should not be deemed constitutionally ineligible for direct aid on the grounds that their secular educational functions are “inextricably intertwined” with their religious educational functions, i.e., that they are pervasively sectarian. But their rationales for the program’s constitutionality then diverged. For Justice Thomas it was sufficient that the instructional materials were secular in nature and were distributed according to neutral criteria. It made no difference whether the schools used the aid for purposes of religious indoctrination or not. But that was not sufficient for Justice O’Connor. She adhered to the view that direct public aid has to be limited to secular use by the recipient institutions. She further asserted that a limitation to secular use could be honored by the teachers in the sectarian schools and that the risk that the aid would be used for religious purposes was not so great as to require an intrusive and entangling government monitoring.121

Justice Souter, joined by Justices Stevens and Ginsburg, dissented on the grounds that the Establishment Clause bars “aid supporting a sectarian school’s religious exercise or the discharge of its religious mission.” Adhering to the “substantive principle of no aid” first articulated in Everson, he contended that direct aid to pervasively sectarian institutions inevitably results in the diversion of the aid for purposes of religious indoctrination. He further argued that the aid in this case had been so diverted.

As the opinion upholding the program’s constitutionality on the narrowest grounds, Justice O’Connor’s provides the most current guidance on the standards governing the constitutionality of aid programs directly benefiting sectarian elementary and secondary schools.

The Court has similarly loosened the constitutional restrictions on public aid programs indirectly benefiting sectarian elementary and secondary schools. Initially, the Court in 1973 struck down substantially similar programs in New York and Pennsylvania providing for tuition reimbursement to parents of religious school children. 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. Pennsylvania provided fixed-sum reimbursement for parents who sent 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.122

New York had also enacted a separate program providing tax relief for low-income parents who did not qualify 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.’ ”123 Some difficulty, however, was experienced in distinguishing this program from the tax exemption approved in Walz.124

The Court rejected two subsidiary arguments in these cases. The first, in the New York case, was 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 resolved through application of the “neutrality” principle: government may neither advance nor inhibit religion. The tuition program inescapably advanced religion and thereby violated this principle.125 The second subsidiary argument that the Court rejected was that, because the Pennsylvania 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.”126 The Court found the argument “thoroughly spurious,” adding, “The Equal Protection Clause has never been regarded as a bludgeon with which to compel a State to violate other provisions of the Constitution.”127

In 1983, the Court clarified the limits of the Nyquist holding. In Mueller v. Allen,128 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.129 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.130 Also important to the Court’s refusal to consider the alleged disproportionate benefits to parents of parochial school children 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.”131

A second factor important in Mueller, which had been present but not controlling in Nyquist, was that the financial aid was provided to the parents of schoolchildren rather than to the school. In the Court’s view, therefore, the aid was “attenuated” rather than direct; because it was “available only as a result of decisions of individual parents,” there was no “imprimatur 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.”132 Thus, Mueller apparently 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.

The Court confirmed this proposition three years later in Witters v. Washington Department of Social Services for the Blind.133 At issue was the constitutionality of a grant made by a state vocational rehabilitation program to a blind person who wanted to use the grant to attend a religious school and train for a religious ministry. Again, the Court emphasized that, in the vocational rehabilitation program “any aid provided is ‘made available without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited’ ” and “ultimately flows to religious institutions . . . only as a result of the genuinely independent and private choices of aid recipients.”134 The program, the Court stated, did not have the purpose of providing support for nonpublic, sectarian institutions; created no financial incentive for students to undertake religious education; and gave recipients “full opportunity to expend vocational rehabiiltation aid on wholly secular education.” “In this case,” the Court found, “the fact that the aid goes to individuals means that the decision to support religious education is made by the individual, not by the State.” Finally, the Court concluded, there was no evidence that “any significant portion of the aid expended under the Washington program as a whole will end up flowing to religious education.”135

In Zobrest v. Catalina Foothills School District136 the Court reaffirmed this line of reasoning. The case involved the provision of a sign language interpreter pursuant to the Individuals with Disabilities Education Act (IDEA)137 to a deaf high school student who wanted to attend a Catholic high school. In upholding the assistance as constitutional, the Court emphasized that “[t]he service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as ‘disabled’ under the IDEA, without regard to the ‘sectarian-nonsectarian, or public-nonpublic nature’ of the school the child attends.” Thus, it held that the presence of the interpreter in the sectarian school resulted not from a decision of the state but from the “private decision of individual parents.”138

Finally, in Zelman v. Simmons-Harris139 the Court reinterpreted the genuine private choice criterion in a manner that seems to render most voucher programs constitutional. At issue was an Ohio program that provided vouchers to the parents of children in failing public schools in Cleveland for use at private schools in the city. The Court upheld the program notwithstanding that, as in Nyquist, most of the schools at which the vouchers could be redeemed were religious and most of the voucher students attended such schools. But the Court found that the program nevertheless involved “true private choice.”140 “Cleveland schoolchildren,” the Court said, “enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school.”141

In contrast to its rulings concerning direct aid to sectarian elementary and secondary schools, the Court, although closely divided at times, has from the start 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.142 The specific grants in question were for the 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, religious purposes, although the restriction on use ran for only twenty years.143 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 devoted to inculcating religion.144 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, and the construction grants were one-time rather than continuing.

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.”145 The colleges involved, though affiliated with religious institutions, were not shown to be too pervasively religious—no religious qualifications existed for faculty or student body, a substantial part of the student body was not of the religion of the affiliation, and state rules precluded the use of any state-financed project for religious activities.146

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 by the administering agency.147 The plurality opinion found a secular purpose; found that the limitation of funding to secular activities was meaningful,148 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.149

Finally, in the first case since Bradfield v. Roberts150 to challenge the constitutionality of public aid to non-educational religious institutions, the Court in Bowen v. Kendrick,151 by a 5–4 vote, upheld the Adolescent Family Life Act (AFLA)152 against facial challenge. The Act permits direct grants to religious organizations for the 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 the delivery of services. All the Justices agreed that AFLA had valid secular purposes; their disagreement related to application of the effects and entanglement tests. The Court relied on analogy to the higher education cases rather than to the cases involving aid to elementary and secondary schools.153 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].”154

At the time it was rendered, Bowen differed from the Court’s decisions concerning direct aid to sectarian elementary and secondary schools primarily in that it refused to presume that religiously affiliated social welfare entities are pervasively sectarian. That difference had the effect of giving greater constitutional latitude to public aid to such entities than was afforded direct aid to religious elementary and secondary schools. As noted above, the Court in its recent decisions eliminated the presumption that such religious schools are pervasively sectarian and has extended the same constitutional latitude to aid programs benefiting such schools as it gives to aid programs benefiting religiously affiliated social welfare programs.

Introduction of religious education into the pub-lic schools, one of Justice Rutledge’s “great drives,”155 has 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 . . . .”156 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.”157

Four years later, the Court upheld a different released-time program.158 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 no more than accommodate their schedules.”159 “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.”

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. The Court wrote: “We think that by using its public school system to encourage recitation of the Regents’ prayer, the State of New York has 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.”160 “Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on 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.”161

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.”162 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 literature163 and that to forbid the particular exercises was to choose a “religion of secularism” in their place.164 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.”165

In Wallace v. Jaffree,166 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,”167 and both Justices Powell and O’Connor in concurring opinions suggested that other state statutes authorizing moments of silence might pass constitutional muster.168

The school prayer decisions served as precedent for the Court’s holding in Lee v. Weisman169 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 as coercive in the elementary and secondary school setting.170 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.”

In Santa Fe Independent School District v. Doe171 the Court held a school district’s policy permitting high school students to vote on whether to have an “invocation and/or prayer” delivered prior to home football games by a student elected for that purpose to violate the Establishment Clause. It found the policy to violate each of the tests it has formulated for Establishment Clause cases. The preference given for an “invocation” in the text of the school district’s policy, the long history of pre-game prayer led by a student “chaplain” in the school district, and the widespread perception that “the policy is about prayer,” the Court said, made clear that its purpose was not secular but was to preserve a popular state-sponsored religious practice in violation of the first prong of the Lemon test. Moreover, it said, the policy violated the coercion test by forcing unwilling students into participating in a religious exercise. Some students—the cheerleaders, the band, football players—had to attend, it noted, and others were compelled to do so by peer pressure. “The constitutional command will not permit the District ‘to exact religious conformity from a student as the price’ of joining her classmates at a varsity football game,” the Court held.172 Finally, it said, the speech sanctioned by the policy was not private speech but government-sponsored speech that would be perceived as a government endorsement of religion. The long history of pre-game prayer, the bias toward religion in the policy itself, the fact that the message would be “delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property”173 and over the school’s public address system, the Court asserted, all meant that the speech was not genuine private speech but would be perceived as “stamped with [the] school’s seal of approval.”174 The Court concluded that “[t]he policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events.”175

In Epperson v. Arkansas,176 the Court struck down a state statute that 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.”177

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.”178 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.”179

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 its facilities available to nonreligious student groups. In Widmar v. Vincent,180 the Court held that allowing student 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. Subsequently, the Court held that these principles apply to public secondary schools as well as to institutions of higher learning. In 1990, in Westside Community Board of Education v. Mergens,181 the Court upheld application of the Equal Access Act182 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.183 Justice O’Connor stated in a plurality opinion that “there is a crucial difference between government speech endorsing religion and private speech endorsing religion. We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.”184

Similarly, public schools may not rely on the Establishment Clause as grounds to discriminate against religious groups in after-hours use of school property otherwise available for non-religious social, civic, and recreational purposes. In Lamb’s Chapel v. Center Moriches School District,185 the Court held that a school district could not, consistent with the free speech clause, refuse to allow a religious group to use school facilities to show a film series on family life when the facilities were otherwise available for community use. “It discriminates on the basis of viewpoint,” the Court ruled, “to permit school property to be used for the presentation of all views about family issues and child-rearing except those dealing with the subject matter from a religious viewpoint.” In response to the school district’s claim that the Establishment Clause required it to deny use of its facilities to a religious group, the Court said that there was “no realistic danger” in this instance that “the community would think that the District was endorsing religion or any particular creed” and that such permission would satisfy the requirements of the Lemon test.186 Similarly, in Good News Club v. Milford Central School,187 the Court held the free speech clause to be violated by a school policy that barred a religious children’s club from meeting on school premises after school. Given that other groups teaching morals and character development to young children were allowed to use the school’s facilities, the exclusion, the Court said, “constitutes unconstitutional viewpoint discrimination.” Moreover, it said, the school had “no valid Establishment Clause interest” because permitting the religious club to meet would not show any favoritism toward religion but would simply “ensure neutrality.”

Finally, the Court has made clear that public colleges may not exclude student religious organizations from benefits otherwise provided to a full spectrum of student “news, information, opinion, entertainment, or academic communications media groups.” In Rosenberger v. Board of Visitors of the University of Virginia,188 the Court struck down a university policy that afforded a school subsidy to all student publications except religious ones. Once again, the Court held the denial of the subsidy to constitute viewpoint discrimination in violation of the free speech clause of the First Amendment. In response to the University’s argument that the Establishment Clause required it not to subsidize an enterprise that promotes religion, the Court emphasized that the forum created by the University’s subsidy policy had neither the purpose nor the effect of advancing religion and, because it was open to a variety of viewpoints, was neutral toward religion.

These cases make clear that the Establishment Clause does not necessarily trump the First Amendment’s protection of freedom of speech. In regulating private speech in a public forum, government may not justify discrimination against religious viewpoints as necessary to avoid creating an “establishment” of religion.

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.189 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 one or more of these purposes and did not operate for profit.190 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.191

For the second prong, the Court created a new test, the entanglement test,192 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.193

Although 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.194 For example, the Court determined that a sales tax exemption applicable only to religious publications constituted a violation of the Establishment Clause,195 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.196

The Civil Rights Act’s exemption of religious or-ganizations from the prohibition against religious discrimination in employment197 does not violate the Establishment Clause when applied to a religious organization’s secular, nonprofit activities. In Corporation of the Presiding Bishop v. Amos,198 the Court held 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,”199 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.200 The exemption itself does not have a principal effect of advancing religion, the Court concluded, but merely allows churches to advance religion.201

The history of Sunday Closing Laws goes back into United States colonial history and far back into English history.202 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.203 The Court acknowledged 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. . . .”204 “[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.”205 The choice of Sunday as the day of rest, although originally religious, now reflected simple legislative inertia or recognition that Sunday was a traditional day for the choice.206 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.207 Later, 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.208

Historically, Congress has pro-vided 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 statute.209 In Gillette v. United States,210 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.211 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”212 or lack any “neutral, secular basis for the lines government has drawn”213 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.”214 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.215

Although the solicita-tion cases have generally been decided under the free exercise or free speech clauses,216 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 from members or affiliated organizations to comply with the registration and reporting sections of the law.217 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.218

The practice of open-ing legislative sessions with prayers by paid chaplains was upheld in Marsh v. Chambers,219 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,220 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.221

The Court likewise upheld the use of legislative prayers in the context of a challenge to the use of sectarian prayers to open a town meeting. In Town of Greece v. Galloway,222 the Court considered whether such legislative prayers needed to be “ecumenical” and “inclusive.” The challenge arose when the upstate New York Town of Greece recruited local clergy, who were almost exclusively Christian, to deliver prayers at monthly town board meetings. Basing its holding largely on the nation’s long history of using prayer to open legislative sessions as a means to lend gravity to the occasion and to reflect long-held values, the Court concluded that the prayer practice in the Town of Greece fit within this tradition.223 The Court also voiced pragmatic concerns with government scrutiny respecting the content of legislative prayers.224 As a result, after Town of Greece, absent a “pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose,” First Amendment challenges based solely on the content of a legislative prayer appear unlikely to be successful.225 Moreover, absent situations in which a legislative body discriminates against minority faiths, governmental entities that allow for sectarian legislative prayer do not appear to violate the Constitution.226

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,227 the Court found that the Establishment Clause was not violated by inclusion of a Nativity scene (creche) in a city’s Christmas display; in 1989, in Allegheny County v. Greater Pittsburgh ACLU,228 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 different 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.

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’ ”229 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 recognized as a National Holiday,”230 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, such as the provision of transportation and textbooks to parochial school students, various assistance to church-supported colleges, Sunday closing laws, and legislative prayers.231 The Court also reversed the lower court’s finding of entanglement based only on “political divisiveness.”232

Allegheny County was also decided by a 5–4 vote, Justice Blackmun writing the opinion of the Court on the creche issue, and there being no opinion of the Court on the menorah issue.233 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.234 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”;235 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.236 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.’ ”237

In Capitol Square Review Bd. v. Pinette,238 the Court distinguished privately sponsored from governmentally sponsored religious displays on public property. There the Court ruled that Ohio violated free speech rights by refusing to allow the Ku Klux Klan to display an unattended cross in a publicly owned plaza outside the Ohio Statehouse. Because the plaza was a public forum in which the state had allowed a broad range of speakers and a variety of unattended displays, the state could regulate the expressive content of such speeches and displays only if the restriction was necessary, and narrowly drawn, to serve a compelling state interest. The Court recognized that compliance with the Establishment Clause can be a sufficiently compelling reason to justify content-based restrictions on speech, but saw no need to apply this principle when permission to display a religious symbol is granted through the same procedures, and on the same terms, required of other private groups seeking to convey non-religious messages.

Displays of the Ten Commandments on government property occasioned two decisions in 2005. As in Allegheny County, a closely divided Court determined that one display violated the Establishment Clause and one did not. And again, context and imputed purpose made the difference. The Court struck down display of the Ten Commandments in courthouses in two Kentucky counties,239 but held that a display on the grounds of the Texas State Capitol was permissible.240 The displays in the Kentucky courthouses originally “stood alone, not part of an arguably secular display.”241 Moreover, the history of the displays revealed “a predominantly religious purpose” that had not been eliminated by steps taken to give the appearance of secular objectives.242

There was no opinion of the Court in Van Orden. Justice Breyer, the swing vote in the two cases,243 distinguished the Texas Capitol grounds display from the Kentucky courthouse displays. In some contexts, the Ten Commandments can convey a moral and historical message as well as a religious one, the Justice explained. Although it was “a borderline case” turning on “a practical matter of degree,” the capitol display served “a primarily nonreligious purpose.”244 The monument displaying the Ten Commandments was one of 17 monuments and 21 historical markers on the Capitol grounds; it was paid for by a private, civic, and primarily secular organization; and it had been in place, unchallenged, for 40 years. Under the circumstances, Justice Breyer thought that few would be likely to understand the monument to represent an attempt by government to favor religion.245

The Court has also considered an Establishment Clause challenge to the display of a Latin Cross—erected to honor American soldiers who died in World War I—on federal land located in a remote section of the Mojave Desert.246 The legal proceedings leading up to the decision, however, were complicated by congressional attempts to influence the final disposition of the case, including the attempted transfer of the federal land in question to private hands.247 As a result, a splintered Court failed to reach the merits of the underlying challenge, and instead remanded the case for further consideration.248

In Larkin v. Grendel’s Den,249 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. Although 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 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.”250 Moreover, the Court determined, because the veto “enmeshes churches in the exercise of substantial governmental powers,” it represented an entanglement offensive to “the core rationale underlying the Establishment Clause [—] preventing ‘a fusion of governmental and religious functions.’ ”251

Using somewhat similar reasoning, the Court in Board of Education of Kiryas Joel Village v. Grumet,252 invalidated a New York law creating a special school district for an incorporated village composed exclusively of members of one small religious sect. The statute failed “the test of neutrality,” the Court concluded, since it delegated power “to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism.” It was the “anomalously case-specific nature of the legislature’s exercise of authority” that left the Court “without any direct way to review such state action” for conformity with the neutrality principle. Because the village did not receive its governmental authority simply as one of many communities eligible under a general law, the Court explained, there was no way of knowing whether the legislature would grant similar benefits on an equal basis to other religious and nonreligious groups.

Although the Court has con-sistently 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.”273 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.”274 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 motives. The Reynolds no-protection rule was applied in a number of cases,275 but later cases established that religiously grounded conduct is not always outside the protection of the Free Exercise Clause.276 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.277 Thus, although freedom to engage in religious practices was not absolute, it was entitled to considerable protection.

Later cases evidence a narrowing of application of the compelling interest test, and a corresponding constriction of the freedom to engage in religiously motivated conduct. First, the Court purported to apply strict scrutiny, but upheld the governmental action anyhow.278 Next, the Court held that the test is inappropriate in the contexts of military and prison discipline.279 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.”280 Therefore, the Court concluded, the Free Exercise Clause does not prohibit a state from applying generally applicable criminal penalties to the 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 not “constitutionally required.”281 The result is tantamount to a return to the Reynolds belief-conduct distinction.282

The Court’s first encounter with free ex-ercise 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, as it could distinguish between beliefs and acts.283 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 that 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.284 Subsequently, an act of a territorial legislature that required a prospective voter not only to swear that he was not a bigamist or polygamist but also 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.285 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.286

In contrast to the Mor-mons, the sect known as Jehovah’s Witnesses, in many ways as unsettling to the conventional as the Mormons were,287 provoked from the Court a lengthy series of decisions288 expanding the rights of religious proselytizers and other advocates to use 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.289 Three Jehovah’s Witnesses were convicted under a statute that 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’s cause was “a religious one” and to decline to issue a license if he determined that it was not.290 Such power amounted to a prior restraint upon the exercise of religion and was invalid, the Court held.291 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.292

A series of sometimes-conflicting decisions followed. At first, the Court sustained the application of a non-discriminatory license fee to vendors of religious books and pamphlets,293 but eleven months later it vacated the decision and struck down such fees.294 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 to violate the First Amendment when applied to distributors of leaflets advertising a religious meeting.295 A state child labor law, however, 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.296 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.297 In 2002, the Court struck down on free speech grounds a town ordinance requiring door-to-door solicitors, including persons seeking to proselytize about their faith, to register with the town and obtain a solicitation permit.298 The Court stated that the requirement was “offensive . . . to the very notion of a free society.”

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,299 confining application of the “compelling interest” test to a narrow category of cases.

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,300 only within a short time to reverse itself and condemn such exclusions, but on speech grounds rather than religious grounds.301 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,302 only in later cases to cast doubt on this resolution by statutory interpretation,303 and still more recently to leave the whole matter in some doubt.304

Braunfeld v. Brown305 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.306 “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.”307

Within two years the Court in Sherbert v. Verner308 reversed this 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 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. If this denial of benefits is to be upheld, the Court said, “it must be either because her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because 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 . . . .’ ”309 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.310 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.”311

Sherbert was reaffirmed and applied in subsequent cases involving denial of unemployment benefits. Thomas v. Review Board312 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 material to the determination that free exercise rights had been burdened by the denial of unemployment compensation.313 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.314

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. Yoder315 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.316 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.317 Instead, the Court analyzed whether a “compelling” governmental interest required such “grave interference” with Amish belief and practices.318 The governmental interest was not the general provision of education, as the state and the Amish agreed as to education through the first eight grades and as 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, the Court found, showed that this interest outweighed the great harm that it would do to traditional Amish religious beliefs to impose the compulsory ninth and tenth grade attendance.319

But a subsequent decision involving the Amish reached a contrary conclusion. In United States v. Lee,320 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.321 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.

“A compelling governmental interest” was also found to outweigh free exercise interests in Bob Jones University v. United States,322 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.323

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.324 Sherbert’s threshold test, inquiring “whether government has placed a substantial burden on the observation of a central religious belief or practice,”325 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 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.”326 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”327 —may be a moot point in light of the Court’s general ruling in Employment Division v. Smith, discussed below.

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’n328 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.’ ”329 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.330 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 nature of the governmental actions did not implicate free exercise protections.331

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.”332 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.333

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.’ ”334 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.335 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.”336

Finally, in Employment Division v. Smith337 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 the board regardless of the religious motivation of the prohibited conduct, and are “not specifically directed at . . . religious practices.”338 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.”339 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.”340 Except in the relatively uncommon circumstance when a statute calls for individualized consideration, 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.”341

Smith has potentially widespread ramifications. 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,342 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. That the Court views the principle as a general one, not limited to criminal laws, seems evident from its restatement in Church of Lukumi Babalu Aye v. City of Hialeah: “our cases establish the general proposition that a law that is neutral and of general application need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”343

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.344 The result is equal protection, but not substantive protection, for religious exercise.345 The Court’s approach also accords less protection to religiously based conduct than is accorded expressive conduct that implicates speech but not religious values.346 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.347

It does appear that, despite Smith, the Court is still inclined to void the application of generally applicable laws to religious conduct when the prohibited activity is engaged in, not by an individual adherant, but by a religious institution. For instance, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission,348 the Court established a “ministerial exception” that precludes the application of employment discrimination laws349 to claims arising out of an employment relationship between a religious institution and its ministers.350 The Court found that even where such law is a “valid and neutral law of general applicability,” and even if the basis for the employment decision is not religious doctrine, the Free Exercise Clause prohibits the application of an employment discrimination law, since enforcement of such law would involve “government interference with an internal church decision that affects the faith and mission of the church itself.”351

Because of the broad ramifications of Smith, the political processes were soon used in an attempt to provide additional legislative protection for religious exercise. In the Religious Freedom Restoration Act of 1993 (RFRA),352 Congress sought to supersede Smith and substitute a statutory rule of decision for free exercise cases. The Act provides that laws of general applicability—federal, state, and local—may substantially burden free exercise of religion only if they further a compelling governmental interest and constitute the least restrictive means of doing so. The purpose, Congress declared in the Act itself, was “to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder and to guarantee its application in all cases where free exercise of religion is substantially burdened.”353 But this legislative effort was partially frustrated in 1997 when the Court in City of Boerne v. Flores354 held the Act unconstitutional as applied to the states. In applying RFRA to the states, Congress had exercised its power under § 5 of the Fourteenth Amendment to enact “appropriate legislation” to enforce the substantive protections of the Amendment, including the religious liberty protections incorporated in the Due Process Clause. But the Court held that RFRA exceeded Congress’s power under § 5, because the measure did not simply enforce a constitutional right but substantively altered that right. “Congress,” the Court said, “does not enforce a constitutional right by changing what the right is.”355 Moreover, it said, RFRA “reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved . . . [and] is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.”356 “RFRA,” the Court concluded, “contradicts vital principles necessary to maintain separation of powers and the federal balance.”357

Boerne did not close the books on Smith, however, or even on RFRA. Although Boerne held that RFRA was not a valid exercise of Fourteenth Amendment enforcement power as applied to restrict states, it remained an open issue whether RFRA may be applied to the Federal Government, and whether its requirements could be imposed pursuant to other powers. Several lower courts answered these questions affirmatively,358 and the Supreme Court has applied RFRA to the Federal Government without addressing any constitutional questions.359

Congress responded to Boerne by enacting a new law purporting to rest on its commerce and spending powers. The Religious Land Use and Institutionalized Persons Act (RLUIPA)360 imposes the same strict scrutiny test struck down in Boerne but limits its application to certain land use regulations and to religious exercise by persons in state institutions.361 In Cutter v. Wilkinson,362 the Court upheld RLUIPA’s prisoner provision against a facial challenge under the Establishment Clause, but it did not rule on congressional power to enact RLUIPA. The Court held that RLUIPA “does not, on its face, exceed the limits of permissible government accommodation of religious practices.”363 Rather, the provision “fits within the corridor” between the Free Exercise and Establishment Clauses, and is “compatible with the [latter] because it alleviates exceptional government-created burdens on private religious exercise.”364

Although 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.”365

The Supreme Court has recog-nized that the Free Exercise Clause “protect[s] religious observers against unequal treatment” and subjects laws that target the religious for “special disability” based on their “religious status” to strict scrutiny.366 For example, in McDaniel v. Paty, the Court struck down a Tennessee law barring “[ministers] of the Gospel, or [priests] of any denomination whatever” from serving as a delegate to a state constitutional convention.367 While the Court splintered with respect to its rationale, at least seven Justices agreed that the law violated the Free Exercise Clause by unconstitutionally conditioning the right of free exercise of one’s religion on the “surrender” of the right to seek office as a delegate.368 Similarly, in Trinity Lutheran Church v. Comer, the Court held that a church that ran a preschool and daycare center could not be disqualified from participating in a Missouri program that offered funding for the resurfacing of playgrounds because of the church’s religious affiliation.369 Specifically, Chief Justice Roberts, on behalf of the Court,370 noted that Missouri’s policy of excluding an otherwise eligible recipient from a public benefit solely because of its religious character imposed an unlawful penalty on the free exercise of religion triggering the “most exacting scrutiny.”371 In so holding, the Court rejected the State of Missouri’s argument that declining to extend funds to the church did not prohibit it from engaging in any religious conduct or otherwise exercising its religious rights.372 Relying on McDaniel, Chief Justice Roberts concluded that because the Free Exercise Clause protects against “indirect coercion or penalties on the free exercise of religion,” as well as “outright” prohibitions on religious exercise, Trinity Lutheran had a right to participate in a government benefit program without having to disavow its religious status.373 Moreover, the Court held that Missouri’s policy of requiring organizations like the plaintiff to renounce its religious character in order to participate in the public benefit program could not be justified by a policy preference to achieve greater separation of church and state than what is already required under the Establishment Clause.374 As a result, the Court held that Missouri’s policy violated the Free Exercise Clause.375