[ White ]
[ Scalia ]
|Syllabus ||Concurrence |
[ Kennedy ]
SUPREME COURT OF THE UNITED STATES
LAMB'S CHAPEL and JOHN STEIGERWALD, PETI
TIONERS v. CENTER MORICHES UNION FREE SCHOOL DISTRICT et al.
on writ of certiorari to the united states court of appeals for the second circuit
The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e. g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e. g., Aguilar v. Felton, 473 U.S. 402 (1985) (striking downstate remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts," Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced. See, e. g., Choper, The Establishment Clause and Aid to Parochial Schools--An Update, 75 Cal. L. Rev. 5 (1987); Marshall, "We Know It When We See It": The Supreme Court and Establishment, 59 S. Cal. L. Rev. 495 (1986); McConnell, Accommodation of Religion, 1985 S. Ct. Rev. 1; Kurland, The Religion Clauses and the Burger Court, 34 Cath. U. L. Rev. 1 (1984); R. Cord, Separation of Church and State (1982); Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. Pitt. L. Rev. 673 (1980). I will decline to applyLemon--whether it validates or invalidates the government action in question--and therefore cannot join the opinion of the Court today. [n.*]
I cannot join for yet another reason: the Court's statement that the proposed use of the school's facilities is constitutional because (among other things) it would not signal endorsement of religion in general. Ante, at 10. What a strange notion, that a Constitution which itself gives "religion in general" preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general. The Attorney General of New York not only agrees with that strange notion, he has an explanation for it: "Religious advocacy," he writes, "serves the community only in the eyes of its adherents and yields a benefit only to those who already believe." Brief for Respondent Attorney General 24. That was not the view of those who adopted our Constitution, who believed that the public virtues inculcated by religion are a public good. It suffices to point out that during the summer of 1789, when it was in the process of drafting the First Amendment, Congress enacted the famous Northwest Territory Ordinance of 1789, Article III of which provides, "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." 1 Stat. 52 (emphasis added). Unsurprisingly, then, indifference to "religion in general" is not what our cases, both old and recent, demand. See, e. g., Zorach v. Clauson, 343 U.S. 306, 313-314 (1952) ("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"); Walz v. Tax Comm'n of New York City, 397 U.S. 664 (1970) (upholding property tax exemption for church property); Lynch, 465 U. S., at 673 (the Constitution "affirmatively mandates accommodation, not merely tolerance, of all religions . . . . Anything less would require the `callous indifference' we have said was never intended" (citations omitted)); id., at 683 ("our precedents plainly contemplate that on occasion some advancement of religion will result from governmental action"); Marsh, supra; Presiding Bishop, supra (exemption for religious organizations from certain provisions of Civil Rights Act).
* * *
For the reasons given by the Court, I agree that the Free Speech Clause of the First Amendment forbids what respondents have done here. As for the asserted Establishment Clause justification, I would hold, simply and clearly, that giving Lamb's Chapel nondiscriminatory access to school facilities cannot violate that provision because it does not signify state or local embrace of a particular religious sect.
* The Court correctly notes, ante, at 10-11, n. 7, that I joined the opinion in Corporation of Presiding Bishop of Church of Jesus Christ of Latter day Saints v. Amos, 483 U.S. 327 (1987), which considered the Lemon test. Lacking a majority at that time to abandon Lemon, we necessarily focused on that test, which had been the exclusive basis for the lower court's judgment. Here, of course, the lower court did not mention Lemon, and indeed did not even address any Establishment Clause argument on behalf of respondents. Thus, the Court is ultimately correct that Presiding Bishop provides a useful comparison: it was as impossible to avoid Lemon there, as it is unnecessary to inject Lemon here.