Church and State in the U.S. Legal History: Search for Solution (1900-2001)

Michael Ariens & Howard Bromberg. New Catholic Encyclopedia Supplement 2010. Editor: Robert L Fastiggi. Volume 1. Detroit: Gale, 2010.

The First Amendment to the U.S. Constitution provides, in part, that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” These sixteen words were rarely commented upon from 1791 through the end of World War II (1939-1945). Since the late 1940s, and especially since 1970, the Supreme Court of the United States has expended an extraordinary amount of time attempting to ascertain the meaning of these words. The more the Court has attempted to explicate the Constitution’s meaning, the more elusive the guarantee of religious liberty has become.

As interpreted by the U.S. Supreme Court before the Civil War (1861-1865), the First Amendment’s guarantee of religious liberty applied to action by the federal government, but not to action by state governments (Barron v. Baltimore, 7 Peters 243 [1833]).

The Fourteenth Amendment

The Fourteenth Amendment was one of three constitutional amendments adopted in the wake of the Civil War. The Fourteenth Amendment states, in part, that “no state shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Although the Fourteenth Amendment was ratified in 1868, its relation to the protection of religious liberty was rarely explored during the remainder of the nineteenth century. In 1875 President Ulysses S. Grant (1822-1885) delivered a speech to the Army of Tennessee in which he objected to any governmental support of sectarian schools and urged his listeners to “keep the church and state forever separate.”

Later that year, Grant urged the passage of a constitutional amendment requiring states to establish free public schools and forbidding states to use any school funds for the direct or indirect benefit of any religiously affiliated school. Grant’s proposal was modified shortly thereafter and came to be called the Blaine Amendment, after James G. Blaine (1830-1893), a Republican congressman hoping to win the 1876 presidential nomination. Although the Blaine amendment was overwhelmingly adopted by the House of Representatives in 1876, a similar proposal failed to pass the Senate by the required two-thirds vote. From 1875 to 1907, the proposed amendment was introduced before Congress more than twenty times, but it never received more support than it did in 1876. However, Congress required all states entering the Union after 1876 to include a provision in the state’s constitution mandating the creation of a nonsectarian public school system.

At the beginning of the twentieth century, the First Amendment guarantee of religious liberty was rarely invoked against actions of the federal government, and the guarantees of the Fourteenth Amendment, which protected individuals from some actions of the state governments, had not been used in a religious liberty case. In 1917, when the United States entered World War I (1914-1918), Congress enacted a selective-service law that included some exemptions for conscientious objectors. The exemption was attacked as an unconstitutional establishment of religion, but was upheld by the Supreme Court (Arver v. United States, 245 U.S. 366 [1918]).

More than a decade later, the Supreme Court interpreted the naturalization law to require the denial of naturalization to any applicant who refused to swear an oath pledging his or her support of the U.S. government in future wars (United States v. Macintosh, 283 U.S. 605 [1931]). That the applicant refused to so swear for religious reasons did not persuade a majority of the Court. The Court later determined that Congress did not require the swearing of such an oath, and abandoned its holding in Macintosh (Girouard v. United States, 328 U.S. 61 [1946]).

In 1925 the Supreme Court decided two cases involving claims of religious liberty. In Pierce v. Society of Sisters, 268 U.S. 510 (1925), the Court held that an Oregon law that made it unlawful for parents to send their children to a private or parochial school was a violation of the due process clause of the Fourteenth Amendment. Although the implications of the Pierce decision have been interpreted in a variety of ways, all commentators have agreed that the decision gives to parents the right to send their children to religious schools. The Court also upheld New York’s “kosher” law against a challenge that the law violated the Fourteenth Amendment. The complainants argued that the words “kosher” and “orthodox Hebrew religious requirements” were too vague and indefinite (Hygrade Provision Company v. Sherman, 266 U.S. 497 [1925]). Five years later, the Supreme Court held constitutional a Louisiana law requiring school boards to purchase all books for schoolchildren, even those attending religiously affiliated schools (Cochran v. Louisiana State Board of Education, 281 U.S. 370 [1930]).

In 1940 the Supreme Court concluded that the free exercise guarantee of the First Amendment applied to state action through the due process guarantee of the Fourteenth Amendment (Cantwell v. Connecticut, 310 U.S. 296 [1940]). Seven years later, the Court incorporated into the due process clause of the Fourteenth Amendment the First Amendment clause barring laws respecting an establishment of religion (Everson v. Board of Education, 330 U.S. 1 [1947]).

Defining Religion

The Supreme Court has decided more than seventy cases on the proper relation between religion and government since the mid-twentieth century, but it has not established a constitutional definition of religion. During the nineteenth century, the Court offered a definition premised on a belief in a deity and on the distinction between a religion and a cult (Davis v. Beason, 133 U.S. 333 [1890]). As the United States became more religiously diverse in the twentieth century, this relatively narrow definition was rejected.

When Congress adopted the Selective Service and Training Act (1940), courts were required to interpret the provision granting conscientious-objector status to those opposed to war in any form by reason of religious training and belief. Divergent interpretations of that language led Congress to amend the act in 1948 by stating: “Religious training and belief in this connection means an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.”

During the Vietnam War (1957-1975), the Court twice interpreted that provision. It first held that the provision should be broadly interpreted to include those whose belief system was sincere and was parallel to the belief system of those who clearly fit the exemption (United States v. Seeger, 380 U.S. 163 [1965]). Five years later, the Court held that the statutory language fit a person who denied that his or her beliefs were religious, for religion was to be given an extremely broad definition (Welsh v. United States, 398 U.S. 333 [1970]). Three members of the Court dissented from the holding, claiming that the statutory provision was interpreted well beyond any sound interpretation of religion.

In constitutional interpretation, the Court has rarely alluded to the issue of the definition of religion. In the Amish schooling case, discussed below, the Court noted the distinction between religious reasons and “philosophical and personal” reasons, and that only the former was protected by the First Amendment. In an unemployment-compensation case, the Court merely noted that the free exercise clause granted special protection to beliefs rooted in religion.

Freedom of Religious Exercise

In the 1930s and 1940s, the Supreme Court weighed the individual’s claim to religious liberty against the interest of the state in a variety of contexts, many of which involved members of the Jehovah’s Witnesses.

Proselytizing. In the 1930s and 1940s, members of the Jehovah’s Witnesses pressed a number of claims alleging violations of their constitutional rights. In several cases, the Supreme Court used various provisions of the First Amendment to strike down state statutes that limited the proselytizing efforts of the Jehovah’s Witnesses. In Cantwell v. Connecticut, the Court held unconstitutional, as a violation of the free exercise clause, a criminal conviction for soliciting money for a religious cause without a permit. The majority opinion, by Justice Owen Roberts (1875-1955), followed an injunction first stated in Reynolds v. United States, 98 U.S. 145 (1879), the Mormon polygamy case: “[Free exercise] embraces two concepts—freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be.” The Court then cautioned that the government cannot unduly infringe the right to free exercise, even when attaining a permissible end.

In Murdock v. Pennsylvania, 319 U.S. 105 (1943), and Follett v. McCormick, 321 U.S. 573 (1944), the Supreme Court held violative of the First Amendment’s free exercise clause the imposition of a license and bookseller’s taxes on Jehovah’s Witnesses who offered religious books and pamphlets for sale. In 1989 a badly divided Supreme Court held that a Texas law exempting from its sales tax periodicals published or distributed by a religious faith that consisted solely of religious content violated the establishment clause (Texas Monthly v. Bullock, 489 U.S. 1 [1989]). The plurality opinion of the Court limited the Murdock and Follett cases to their facts, which means those cases cannot be understood to prohibit the government from taxing the sale of religious publications. The Court also held unconstitutional a local ordinance prohibiting the door-to-door distribution of handbills (Martin v. City of Struthers, 319 U.S. 141 [1943]).

The Court did hold constitutional the conviction of Sarah Prince for violating the child-labor laws of Massachusetts, which Prince claimed violated her free exercise rights. Prince permitted her niece, for whom she was the custodian, to join her in selling Watchtower, the magazine of the Jehovah’s Witnesses. The Court held that Prince’s free exercise right to proselytize and sell Watchtower did not include the right to bring her niece with her while she proselytized (Prince v. Massachusetts, 321 U.S. 158 [1944]).

Flag Salute. A few weeks after the Cantwell decision, the Court decided the first flag-salute case (Minersville School District v. Gobitis, 310 U.S. 586 [1940]). Justice Felix Frankfurter (1882-1965), speaking for eight of the nine members of the Court, upheld the constitutionality of a Pennsylvania law that required all public school pupils to salute the flag. As Jehovah’s Witnesses, the Gobitis children refused to salute the flag on religious grounds, as instructed by their parents. The challenge to the law on free exercise grounds was rejected by the Court, which concluded that the state’s interest in the promotion of national unity was sufficient to justify the law. The lone dissenter was Chief Justice Harlan Fiske Stone (1872-1946), who concluded that the state’s justification for the law was insufficient when balanced against the individual interest in the free exercise of religion. The Gobitis opinion was released on June 3, 1940, at a time when World War II was raging in Europe, but before the United States had entered the war. Shortly after the decision in Gobitis was released for publication, and apparently in part because of the decision, anti-Jehovah’s Witness hysteria gripped the country. Elite reaction to the Gobitis opinion was largely negative.

Three years later, the Court reversed itself (West Virginia Board of Education v. Barnette, 319 U.S. 624 [1943]). The Court’s opinion was written by Justice Robert H. Jackson (1892-1954), who had been appointed to the Court in 1941, after the Court issued its decision in Gobitis. Five other members of the Court joined Jackson’s opinion, including several justices who had joined the majority opinion in Gobitis. Jackson’s opinion is a ringing, eloquent endorsement of the centrality of individual liberty in American constitutional law: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in matters of politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” For the majority, freedom of speech could be restricted only if there was a grave and immediate danger to paramount community interests. The refusal by schoolchildren to salute the American flag did not create such a danger to the state or community.

Church-Property Disputes. In the early 1950s, the New York legislature attempted to transfer control of Saint Nicholas Cathedral in New York City from members of the Russian Orthodox Church who deferred to the authority of the patriarch in Moscow to those who saw the patriarch as a puppet of the Soviet government. The Supreme Court, in an opinion by Justice Stanley Reed (1884-1980), held that this legislative effort violated the church’s right to self-governance (Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 [1952]).

From the late 1960s until the end of the 1970s, the Supreme Court decided several other cases involving church-property disputes. Doctrinal changes by several Protestant churches in the late 1960s led to religious disputes between local and national church bodies, and within local churches themselves. Those ecclesiological disputes resulted in litigation concerning the rightful owner of the local church. After several attempts to craft a constitutional rule concerning the resolution of church-property disputes, the Supreme Court in 1979 declared constitutionally permissible the resolution of disputes based on “neutral principles of law” (Jones v. Wolf, 443 U.S. 595 [1979]). The problem with the “neutral principles” approach, as noted by Justice Lewis Powell (1907-1998), dissenting in Jones, is that this rule of law fails to account for the fact that religious organizations are organized as much by religious as legal precepts. Because the neutral principles rule bars courts from acknowledging the existence of those religious precepts, courts will award title to church property contrary to the precepts that undergird the religious organization, particularly hierarchical religious organizations.

Sunday Legislation. In the early 1960s, those who observed the SABBATH on Saturday claimed that Sunday closing laws violated their religious liberty. A Sabbatarian who closed his business on Saturday for religious reasons and on Sunday because state law demanded he do so suffered adverse economic consequences compared with someone whose business remained open on Saturdays. In 1961 the Court upheld the constitutionality of Sunday closing laws against challenges on both free exercise and establishment clause grounds (Braunfeld v. Brown, 366 U.S. 599 [1961]). The opinion of Chief Justice Earl Warren (1891-1974) conceded that the Sunday closing law indirectly operated to make the practice of religion by Sabbatarians more expensive than those whose day of rest was Sunday, but the Court concluded that the Sunday closing laws were designed primarily to achieve legitimate secular goals. An exemption for Sabbatarians might adversely affect those secular goals by granting an economic advantage to Sabbatarians over their competitors. Such an exemption could also complicate enforcement of the Sunday closing law, inject religion into decisions concerning employment, and undermine a common day of rest. The dissenters concluded that the free exercise of religion could be infringed only to prevent a grave and imminent danger of substantive evil, and the justification of a common day of rest was a mere convenience that could not outweigh the religious liberty interest of Sabbatarians. The inequities permitted by the Court in Braunfeld eased as the states began repealing their Sunday closing laws. The number of Sunday closing laws retained are few, and they are rarely enforced.

The abolition of Sunday closing laws led to a different problem. Connecticut abolished its Sunday closing law in 1977. In response, Caldor, Inc., opened its stores for business on Sunday. After abolishing its Sunday closing law, Connecticut adopted a provision barring a private employer from requiring any employee to work on the employee’s Sabbath as a condition of employment. Donald Thornton was a manager with Caldor, and a Presbyterian who refused to work on Sunday, his Sabbath. He was demoted to a clerical position by Caldor, resigned, and claimed he was fired in violation of Connecticut law. The Supreme Court held that the Connecticut law violated the establishment clause, because it had the primary effect of impermissibly advancing a particular religious practice (Estate of Thornton v. Caldor, Inc., 472 U.S. 703 [1985]).

Unemployment Compensation. In 1963 the Court held that South Carolina could not exclude from its unemployment-compensation program a claimant who, for religious reasons, refused to take a job that required her to work on Saturdays, her Sabbath (Sherbert v. Verner, 374 U.S. 398 [1963]). The Court characterized the law as requiring the claimant to “choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand.” This was impermissible, because the law effectively penalized the exercise of her religious beliefs. The Court held that the state could infringe the religious liberty of the claimant, Adell Sherbert, only if it had a compelling interest. The state’s interest in administrative convenience and preventing fraudulent claims did not rise to the level of a compelling interest. The Court’s opinion, by Justice William Brennan (1906-1997), also concluded that this case was distinguishable from Braunfeld.

A concurring opinion by Justice Potter Stewart (1915-1985) argued that the Court had painted itself into a corner, for its interpretation of the free exercise clause in Sherbert was directly in conflict with its interpretation of the establishment clause. Justice Stewart claimed that the Court’s interpretation of the establishment clause required South Carolina to deny Adell Sherbert unemployment benefits, and the Court’s interpretation of the free exercise clause required South Carolina to grant Sherbert unemployment benefits. Justice Stewart concluded that the Court’s mechanistic interpretation of the establishment clause was unsound as a matter of history and wrong as a matter of constitutional interpretation.

In three subsequent unemployment-compensation cases decided in the 1980s, the Supreme Court extended the holding of Sherbert v. Verner. The Court first held that the state could not deny unemployment-compensation benefits to a Jehovah’s Witness who left his job at a munitions factory based on his religious objections to war. That the claimant had not been fired but had left his job voluntarily made no constitutional difference to the Court (Thomas v. Review Board, 450 U.S. 707 [1981]). The Court then held impermissible the decision to refuse unemployment compensation to a claimant who was fired because, after working for his employer for two years, he became a Seventh-Day Adventist and then refused to work on Friday night or on Saturday, his Sabbath (Hobbie v. Unemployment Appeals Comm’n of Florida, 480 U.S. 136 [1987]).

Finally, the Court held that unemployment benefits were improperly denied to a claimant who refused to work on Sundays because he was a Christian. The Court concluded that it did not matter that the claimant was not a member of any particular Christian church or organization. The issue was whether the claimant’s refusal to work was based on a sincerely held religious belief (Frazee v. Illinois Department of Employment Sec., 489 U.S. 829 [1989]).

The extent to which the unemployment compensation cases stated a general rule of constitutional law was placed in great doubt after the Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), discussed below.

The Amish and Compulsory Schooling. The State of Wisconsin made it a criminal offense for parents to violate the state’s compulsory school-attendance law mandating that children attend school until age sixteen. Amish parents, pursuant to their religious beliefs, removed their children from school after they completed the eighth grade. The Supreme Court, with only Justice William O. Douglas (1898-1980) dissenting in part, held that the Wisconsin law violated the free exercise rights of Amish parents (Wisconsin v. Yoder, 406 U.S. 205 [1972]). The Court, following the doctrine stated in Sherbert v. Verner, held that the right to free exercise could be infringed only upon a showing by the state that the justification for its action was compelling. The Court noted that the Amish were “productive and very law-abiding members of society,” and that the Amish alternative to formal schooling, vocational training, had enabled them to survive as a highly self-sufficient community in the United States for more than two hundred years.

The Court decided that the state’s interest in educating Amish schoolchildren was not compelling, but merely “highly speculative.” That the state’s compulsory school-attendance law was neutral on its face, for it was not directed at the Amish or any other religious group, did not make the law constitutional, because the law clearly created an undue burden on the religious practices of the Amish. Justice Douglas dissented on the ground that the Court failed to account for the interests of the children themselves, who might disagree with their parents and opt to attend high school.

Native Americans and Free Exercise. Unlike the Jehovah’s Witnesses in the 1940s, Native American religious practices have not fared well before the Supreme Court. In 1986 the Court held that the assignment of a Social Security Number to a Native American child by the Social Security Administration did not violate the free exercise rights of the child or her parents (Bowen v. Roy, 476 U.S. 693 [1986]).

Two years later, the Supreme Court held that the free exercise clause did not bar the government from permitting the harvesting of timber or the construction of a road on federal land, even though part of that land had traditionally been used by three Native American tribes for religious worship. The majority concluded that, because the federal government’s decision did not burden the religious exercise by the complaining tribes, it did not have to address whether the government’s interest in harvesting the timber and building the road constituted a compelling governmental interest (Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 [1988]). Shortly thereafter, the Supreme Court drastically altered its free exercise jurisprudence in another case concerning Native American religious exercise, Employment Division v. Smith, 494 U.S. 872 (1990).

Retrenchment. The continuing validity of the standards set forth in Sherbert and Yoder was called into doubt by the Supreme Court’s decision in Employment Division v. Smith. Before Smith, the standard for determining a violation of the free exercise clause was to determine (1) whether the governmental action burdened the exercise of religion, and if so, (2) whether the government’s reason for burdening the exercise of religion was justified by a compelling governmental interest. In Smith, the Court rejected that test, concluding that if the law was a neutral and generally applicable law, it did not offend the free exercise clause of the First Amendment, even if application of that law might burden an individual’s exercise of religion.

In Smith, the issue was the constitutionality of Oregon’s criminal law prohibiting the possession or use of peyote when applied to a Native American who used peyote, a hallucinogenic drug, in religious worship. Because the criminal law was a valid and neutral law generally applicable to anyone who possessed or used peyote, the incidental effect of the law’s application to someone using peyote for religious reasons did not mandate a constitutional exemption from the law. The majority, in an opinion by Justice Antonin Scalia, distinguished Sherbert and Yoder. Sherbert was limited to a peculiar constitutional rule concerning unemployment compensation, and Yoder was reinterpreted to mean that a neutral and valid generally applicable law was unconstitutional only if it violated both the free exercise clause and some other constitutional right. The Court called Yoder-type cases “hybrid” cases, and concluded that the issue in Smith was not such a case.

The academic reaction to Smith was widespread and largely negative. In 1993, three years after the decision was issued, Congress adopted the Religious Freedom Restoration Act (RFRA), which attempted by statute to restore the test enunciated in Sherbert and Yoder. In 1997 the Supreme Court held RFRA unconstitutional, as a violation of section 5 of the Fourteenth Amendment (City of Boerne v. Flores, 521 U.S. 507 [1997]). In reaction, Congress enacted the Religious Land Use and Institutionalized Persons Act in 2000. This act provides numerous protections to religious owners of property in such areas as zoning and land use, although Congress tried to do so to comport with the establishment clause. Several states have adopted “mini-RFRAs,” which protect religious liberty as a matter of state law. The constitutionality of those “mini-RFRAs” has not been tested in most states.

The Relation of Free Exercise and Free Speech. The exercise of religion often involves speech. The Supreme Court wrestled with the relation of the free exercise, free speech, and establishment clauses in several cases during the 1980s and 1990s.

The University of Missouri at Kansas City allowed registered student groups to use generally available facilities for meetings. In the late 1970s, the university refused to allow a registered religious group named Cornerstone to use its facilities after the Board of Curators prohibited the use of university property for religious worship or religious teaching. The Court held that barring a registered student group from using a generally available facility because the group was religious constituted impermissible discrimination on the basis of the content of the group’s speech (i.e., that its speech was religious in nature). Further, the university’s “equal access” policy, granting to registered groups the right to use open rooms, did not raise establishment clause concerns, because the university did not place its imprimatur of approval on the religious activities of Cornerstone, nor did it attempt to advance religion by creating an open forum (Widmar v. Vincent, 454 U.S. 263 (1981]).

Shortly after Widmar, Congress adopted the Equal Access Act (1984), which prohibited high schools from refusing access to religious and philosophical groups if the school granted access to other noncurricular groups. The Court held the Equal Access Act constitutional in Board of Education v. Mergens, 496 U.S. 296 (1990). In 1993 the Supreme Court held that a school district violated the free speech clause of the First Amendment by denying a church access to school premises to show a film after school hours solely because the film dealt with a subject from a religious standpoint. The Court held that allowing the church access to school premises would not have amounted to an establishment of religion (Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 [1993]).

In Good News Club v. Milford Central School, 533 U.S. 98 (2001), a closely divided Supreme Court held that the refusal of a public school district to permit a religious organization to use its facilities after school hours because the organization was teaching moral lessons from a Christian perspective through live storytelling and prayer constituted viewpoint discrimination in violation of the free speech clause. The Court considered apposite the decision in Lamb’s Chapel, because the only difference between the two cases was the inconsequential distinction that in the former case, religious and moral lessons were taught through films; in the latter case, those lessons were taught through storytelling and prayers.

The Court returned to the issue of the relation of religion and speech in two cases in 1995. In Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995), the issue concerned the constitutionality of the government’s refusal to allow the unattended display of a cross in a public forum. A closely divided Court held that private religious speech was fully protected by the free speech clause of the First Amendment. The board’s refusal to allow the display of the cross was unconstitutional. The dissenters argued that the establishment clause should be interpreted to create a strong presumption against the installation of unattended religious symbols on public property.

In the second case, Rosenberger v. Rectors and Visitors of the University of Virginia, 515 U.S. 819 (1995), the University of Virginia refused to pay for the printing costs of a newspaper printed by a recognized student organization because the paper “primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality.” This, the university claimed, violated the establishment clause. The divided Court held that, because the university’s decision discriminated against the student organization on the basis of the organization’s viewpoint (e.g., that there is a God), the university violated the free speech clause. Paying for the printing costs of the paper did not violate the establishment clause because the university’s reimbursement scheme was neutral toward religion, neither advancing nor inhibiting religion by its action in paying for the printing costs of a paper distributed by a student organization recognized by the university. The dissenters claimed that the establishment clause required some justification beyond “evenhandedness.” Direct funding of sectarian activities was inconsistent with the establishment clause, even if the funding was undertaken as a matter of evenhandedness.

The Supreme Court remains closely divided on the interpretation of the free exercise clause, and on the application of the free speech clause to religious speech. It appears unlikely that this division will heal any time soon.

Religious Establishment

Since the Supreme Court first applied the establishment clause in 1947 to state as well as federal action, it has regularly attempted to mark the proper boundary between religion and government interaction. As discussed more fully below, the Court has rarely reached consensus about the proper interpretation of the establishment clause. This has meant a bewildering array of cases and “tests” about the establishment clause. Those who read the Court’s establishment clause decisions often leave befuddled and frustrated, for the members of the Court begin with widely differing premises, which often lead the justices to diametrically opposed positions.

The more the Supreme Court has decided establishment clause cases, the wider the circle of types of cases it has decided. Since the mid-twentieth century, however, the Court has focused on the interaction between government and religion in the field of education, both public education and religious education. Those parents who send their children to public schools are often of many different faiths, or of no religious faith. From 1947 to the present, the Supreme Court has issued a number of rulings attempting to demarcate the constitutional boundaries imposed on public school officials when claims of religious establishment are raised. For those parents who send their children to religious schools, the recurring question is the extent to which the state may pay, either directly or indirectly, for any costs attributable to that religious education. The result, after more than sixty years of effort, is a muddle. The Supreme Court, as discussed below, has offered a number of different “tests” concerning the meaning of religious establishments, and the current state of the law is largely a mess.

Public Transportation. The first modern case decided by the Supreme Court was Everson v. Board of Education, 330 U.S. 1 (1947). A New Jersey township school board, acting pursuant to state law, reimbursed parents for the cost of sending their children to local parochial schools on municipal buses. A severely divided Court held that, though the actions of the school board were subject to the constraints of the establishment clause, the reimbursement scheme did not violate that clause.

Both the majority in Everson, in an opinion by Justice Hugo Black (1886-1971), and the dissent, in an opinion by Justice Wiley Rutledge (1894-1949), agreed that the clause against an establishment of religion was intended to erect “a wall of separation between Church and State.” The unanimous adoption of Thomas Jefferson’s “separationist” standard (which he crafted while president in a January 1, 1802, letter to the Danbury Baptist Association) masked the marked disagreement about the application of the “wall of separation” to the township’s reimbursement scheme. The five-man majority concluded that spending tax monies to pay for the transportation of schoolchildren to parochial schools was part of a general program helping all children make their way to school. For the majority, these services were “indisputably marked off from the religious function” of the schools. Consequently, the government was not supporting the religious schools, but merely helping parents get their children, regardless of their religion, to school. The four dissenters concluded that paying the transportation costs to and from parochial school aided those parents and children “in a substantial way” in obtaining religious training, which they concluded was barred by the establishment clause.

The central difficulty with Everson was the implicit conflict between the claim that “absolute” separation was required between church and state, and the conclusion that the public transportation of schoolchildren was a permissible welfare measure. The effort by the majority to avoid this conflict by focusing on the fact that the benefit was not to the parochial school, but to the child attending the parochial school (the “child benefit” theory), merely removed the conflict one step. Arguably, the parochial school was the ultimate beneficiary, even though the money was given to the parents of the schoolchildren rather than to the school itself. Justice Rutledge made this very argument in dissent in Everson, claiming that “it cannot be said that the cost of transportation is no part of the cost of education or of the religious instruction given.” Consequently, concluded the dissent, the reimbursement scheme violated the required separation of church and state. The five-to-four division in Everson was a harbinger of what was to come.

Released Time. One year after Everson, the Court held unconstitutional a released-time program in the Champaign, Illinois, school district (Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 [1948]). Students in this public school district were given religious instruction for thirty to forty-five minutes per week in their schools if their parents requested such instruction. Those who were not given religious instruction left their classrooms for secular instruction elsewhere. Again speaking for the Court, Justice Black held the program unconstitutional. Justice Black concluded that the public school system could not be used to aid religion. The only dissenter, Justice Stanley Reed, concluded that, based on custom and particular historical practices (e.g., military chaplains, prayer in public schools), this aid to religion was consistent with the principle of religious liberty. Justice Reed also criticized the Court’s reliance on the “wall of separation of church and state” metaphor, claiming that, “a rule of law should not be drawn from a figure of speech.”

Four years later, the Court softened its position on released time, holding constitutional a New York City program in which public school children were released from their schools to attend religious instruction off school property during the school day (Zorach v. Clauson, 343 U.S. 306 [1952]). Justice Douglas’s majority opinion included the statement, “We are a religious people whose institutions presuppose a Supreme Being,” and held that the principle of separation was modified by the principle of neutrality toward religion. Otherwise, the principle of separation led to hostility between religion and the state. Justice Black dissented, finding no difference between the Illinois and New York programs.

The Court, with the exception of the two church-property cases discussed above, then remained silent concerning religion for nearly a decade. After holding Sunday closing laws constitutional against both free exercise and establishment clause challenges, the Court held impermissible a Maryland constitutional requirement that public officials declare a belief in God, on the ground that the provision was a religious test for office (Torcaso v. Watkins, 367 U.S. 488 [1961]). Within two years, the Court created a firestorm with its decisions in two public school-prayer cases.

State Prescribed Prayer. New York regents recommended that public schoolchildren recite the following prayer at the beginning of the school day: “Almighty God, we acknowledge our dependence upon Thee, and we beg thy blessings upon us, our parents, our teachers, and our country.” For the Court, Justice Black held that the recommended prayer violated the establishment clause because it was composed by state officials and was designed to advance religious beliefs (Engel v. Vitale, 370 U.S. 421 [1962]). The next year, the Court held unconstitutional an officially sponsored reading of the Bible and the recitation of the Lord’s Prayer at the beginning of the public school day (Abington School District v. Schempp, 374 U.S. 203 [1963]). Although both decisions relied heavily on Jefferson’s “wall of separation” metaphor as the touchstone for understanding the meaning of the establishment clause, the Court suggested a more particularized approach to determining the constitutionality of government actions that were challenged pursuant to that clause. In his opinion for the Court in Schempp, Justice Tom Clark (1899-1977) held that the government’s action must have (1) a secular purpose and (2) a primary effect that neither advanced nor inhibited religion.

The Court’s decisions were largely unpopular with the public and with Congress. A number of unsuccessful efforts to overturn the school-prayer decisions by constitutional amendment have been initiated by members of Congress since 1963. The public clamor for reversal of school-prayer decisions subsided over time, which may be attributed in part to grudging acceptance of the decision and to the fact that public school officials in some areas of the United States refused to acknowledge the decisions, and continued to condone the saying of prayers in school.

The Supreme Court did not return to the issue of prayers in public schools for nearly two decades. In 1980 the Court held that the posting of the Ten Commandments in public school classrooms violated the establishment clause because there existed no secular purpose in doing so (Stone v. Graham, 449 U.S. 39 [1980]). Five years later, the Supreme Court held unconstitutional an Alabama law authorizing a moment of silence “for meditation and voluntary prayer” at the beginning of the public school day. The Court noted that the sole purpose for the law was the nonsecular purpose of returning voluntary prayer to the public school (Wallace v. Jaffree, 472 U.S. 38 [1985]). Five members of the Court concluded that some moment-of-silence laws were constitutional, although they disagreed about the constitutionality of Alabama’s law.

A number of states have since adopted moment-of-silence statutes that meet the secular-purpose standard. In 1992 the Court barred invocation and benediction prayers at public school graduation ceremonies if they were part of the official school graduation ceremony (Lee v. Weisman, 505 U.S. 577 [1992]). The majority opinion in Lee was written by Justice Anthony Kennedy. Justice Kennedy’s opinion suggested that because the graduation prayers bore the imprint of the government, and because students in effect were obliged to attend graduation, the saying of those prayers required students to participate in a religious exercise, which the establishment clause forbids.

The emphasis by the Court on the official nature of the prayers led some student groups to attempt to eliminate any official sanction for an invocation and a benediction by placing the authority to include prayers at graduation with the graduating class rather than school officials. The Court appeared to respond in part to this effort in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), in which it held unconstitutional a public school district policy concerning studentled prayers given before high school football games. The Court’s opinion, written by Justice Kennedy, concluded that though nothing in the Constitution forbade a public school student from praying voluntarily before, during, or after school, if the government affirmatively sponsors the practice of prayer, it violates the establishment clause.

Evolution and Public Schools. In 1925 John Scopes (1900-1970) was convicted for teaching the theory of evolution in a Tennessee public school, contrary to state law, although it was almost certain that Scopes did not teach evolution. The trial was a circus, taking place over eight days, but culminating in a mere one hour of testimony. The conviction was reversed based on a legal fiction, but the “lesson” of the trial, according to the press, was that the forces of progress (secular modernism) had routed the forces of superstition (religious fundamentalism). Although the trial ended most efforts in the states to adopt antievolution laws, textbook publishers began reducing or even eliminating references to evolution in biology textbooks to avoid controversy.

The issue would not arise again until the 1960s. In Epperson v. Arkansas, 393 U.S. 97 (1968), the Supreme Court held unconstitutional Arkansas’ antievolution statute, calling it a “quixotic prohibition.” Those opposed to the teaching of evolution responded to Epperson by lobbying local and state boards of education to require biology textbooks to label evolution a theory and to require the teaching of creationism if evolution was taught in the public school. The State of Louisiana later passed a law barring the teaching of evolution unless the school also taught creation science. In Edwards v. Aguil-lard, 482 U.S. 578 (1987), the Supreme Court held that this law lacked a secular purpose, and thus violated the establishment clause.

Governmental Aid and Private and Parochial Schools. The importance of education in the modern world has been clear to governmental bodies for some time. Since World War II, both the federal and state governments have passed laws attempting to enhance learning in both public and private schools, from elementary school through graduate studies. Laws that provide money either to students who attend (or hope to attend) a religiously affiliated school, or to the school itself, have been regularly challenged since the late 1960s. The Court has been a model of inconsistency, first creating nearly insuperable barriers to governmental aid that affects religious educational institutions, and then relaxing those barriers. It has largely done so through a multipronged establishment clause test, the so-called Lemon test.

In 1971, in Lemon v. Kurtzman, 403 U.S. 602, the Supreme Court held that state laws providing salary supplements to teachers in religious schools and reimbursing religious schools for some costs attributable to the teaching of secular subjects violated the establishment clause. The Court, in an opinion by Chief Justice Warren Burger (1907-1995), retreated from the separationist standard first enunciated in Everson, noting that the language of the religion clauses “is at best opaque,” and that “the line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.” In place of the wall of separation, the Court offered a three pronged test of constitutionality: (1) the law must have a secular purpose; (2) the principal or primary effect of the law must neither advance nor inhibit religion; and (3) the statute must not foster an excessive entanglement by government with religion.

The first two prongs of this test were taken from Schempp, the second school-prayer case; the last prong was taken from Walz v. Tax Commission, 397 U.S. 664 (1970), which held constitutional a property-tax exemption available to religious organizations for property used for worship. Because the proper governmental oversight of the programs created an excessive entanglement between government and religion, the state laws were unconstitutional. Although the Court retreated from the separationist standard, and attempted to replace it with a standard of religious “neutrality” or religious “accommodation,” the Lemon test was a severe challenge to those who believed the relation between government and religious educational institutions was too strained and hostile.

Including its decision in Everson, the Supreme Court has decided at least twenty cases concerning the constitutionality of aid that may, directly or indirectly, assist religious schools. The result is a foray into a byzantine world. The Court initially made a distinction between aid that flowed to religious institutions involved in higher education and aid to religious elementary and high schools. Because the former were not considered “pervasively sectarian,” aid to religiously affiliated colleges and universities was permissible because there was little fear of excessive entanglement between religion and government (Tilton v. Richardson, 403 U.S. 672 [1971]; Hunt v. McNair, 413 U.S. 734 [1973]; Roemer v. Board of Public Works, 426 U.S. 736 [1976]). Students in religious elementary and high schools could be lent textbooks by the state (Board of Education v. Allen, 392 U.S. 236 [1968]), but not globes, maps, or audiovisual equipment (Meek v. Pittenger, 421 U.S. 349 [1975]; Wolman v. Walter, 433 U.S. 229 [1977]).

In 2000 a divided Court overruled Meek and Wolman, permitting governmental agencies to lend educational materials and equipment to private and religious schools (Mitchell v. Helms, 530 U.S. 793 [2000]). Although there is some evidence that the Court has retreated on the higher education/compulsory education dichotomy, some justices continue to argue for its strict enforcement. Parents may take a tax deduction for educational expenses incurred in sending their children to school (Mueller v. Allen, 463 U.S. 388 [1983]), and a handicapped student may use state tuition funds to attend a higher religious institution (Witters v. Washington Department of Services for the Blind, 474 U.S. 481 [1986]), but parents cannot receive tuition tax credits for sending their children to religious schools (Committee for Public Education v. Nyquist, 413 U.S. 756 [1973]). The government may not pay for teachers to provide remedial education for poor children if it takes place at a religious school (Aguilar v. Felton, 473 U.S. 402 [1986]), but the government may pay for an on-premises sign-language interpreter who aids a deaf child attending a religious school (Zobrest v. Catalina Hills School District, 509 U.S. 1 [1993]).

An issue the Supreme Court had studiously avoided for a number of years is the constitutionality of a voucher system, in which the state issues an educational voucher that may be redeemed by students at either a public or private school. State and lower federal courts addressing this issue had reached contrary results. In Zelman v. Simmons-Harris, 536 U.S. 639 (2002), however, the Supreme Court, in a five-to-four decision, upheld the constitutionality of educational voucher systems that can pass a five-part test demonstrating their secular purpose and nature.

Additional Approaches to Interpreting the Establishment Clause. In 1789 each house of Congress hired a chaplain to pray at the opening of the legislative day. In 1983 the Supreme Court decided a case concerning the constitutionality of the State of Nebraska’s practice of opening each legislative day with a prayer by a chaplain paid by the state. The Court held that the “unique history” of the practice of hiring government-paid chaplains led it to conclude that the practice did not violate the law because the founders did not believe that the practice violated the First Amendment. The Court ignored the Lemon test in favor of this “historical practices” test, which the dissenters claimed was because application of Lemon would have resulted in a contrary result (Marsh v. Chambers, 463 U.S. 783 [1983]).

The next year, in a concurring opinion, Justice Sandra Day O’Connor suggested a revised test for the establishment clause, the “endorsement” test. This test focuses attention on whether the government’s action had made adherence to religion relevant to the person’s standing in the community (Lynch v. Donnelly, 465 U.S. 668 [1984]).

In 1989 the Court’s jurisprudence disintegrated. The issues before the Court were whether (1) the placement of a crèche on the grand staircase of the Allegheny County Courthouse in Pittsburgh, Pennsylvania, and (2) the placement of a menorah next to a Christmas tree and a sign saluting liberty on public property next to Pittsburgh’s City-County Building were impermissible establishments of religion. No opinion garnered a majority of the Court. Varying coalitions held that the former was unconstitutional but the latter was constitutional. The constitutional difference between the two displays was either that the crèche solely promoted a religious message while the menorah, tree, and sign promoted a secular message (the opinion of Justice Harry Blackmun [1908-1999]) or that the crèche solely promoted a religious message while the menorah, tree, and sign promoted a message of pluralism and freedom of belief during the holiday season and did not endorse Judaism or religion in general (the opinion of Justice O’Connor). Justice Brennan concluded that both displays favored religion, and the establishment clause forbade any governmental action that favored religion over nonreligion. Justice Kennedy concluded that both displays were constitutional, because the government did not coerce anyone to support or participate in any religion or its exercise (County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 [1989]).

The Supreme Court has never overturned the Lemon test, although it has been the subject of repeated criticism by justices and legal commentators. The endorsement test suggested by Justice O’Connor has been incorporated by some justices into the “primary effect” prong of Lemon, and used independently of Lemon by Justice O’Connor and other justices. To determine whether some action of government is an endorsement of religion, the proper perspective is that of the reasonable observer, who is understood to be well-informed. A minority of justices consider coercion the proper test of an establishment clause violation. For those justices, the establishment clause is violated only when the government attempts to coerce an individual’s religious liberty. A different minority of justices urge a return to the wall of separation, particularly in cases in which aid flows to one or more religious organizations. The former group is more “accommodationist” in its treatment of the relation of government and religion, and the latter is more “separationist” in its understanding of that relationship.

The establishment clause has become one of those fissures in American society that gave rise to the phrase “culture wars.” Like much of society, the Court is badly divided about the fundamental principles that guide interpretation of the establishment clause. This division among the Court, which will probably continue for some time, makes clarity in this area of law extremely unlikely.