Government Aid to Religious Institutions (Update 1)

views updated

GOVERNMENT AID TO RELIGIOUS INSTITUTIONS (Update 1)

A theme of equality has dominated recent Supreme Court decisions in the area of church-state relations. This may be seen most dramatically in the shrunken protection for religious liberty under the Court's peyote ruling in employment division, department of human resources of oregon v. smith (1990), which held that the free-exercise clause of the first amendment affords no religious exemption from a neutral law that regulates conduct even though that law imposes a substantial burden on religious practice. Similarly, on the subject of religion in public schools, the Court held in board of education of west-side community schools v. mergens (1990) that the First Amendment's ban on laws respecting an establishment of religion permits student religious groups in secondary schools to meet for religious purposes (including prayer) on school premises during noninstructional time as long as other non-curriculum-related student groups are allowed to do so. This theme of neutral treatment of religious and secular groups has been prominent in regard to the subject of governmental aid as well.

It has long been the rule that a government subsidy to religious institutions violates the establishment clause when the subsidy's purpose or primary effect is to finance religious (rather than secular) activities. The decision in bowen v. kendrick (1988) affirmed this proposition and also revealed the present Court's inclination to give a generous interpretation to the term "secular" activities. The case upheld the constitutionality of Congress's granting funds to a variety of public and private agencies (including religious organizations) to provide counseling for prevention of adolescent sexual relations and to promote adoption as an alternative to abortion. Whereas this program may be fairly characterized as having a "secular" purpose (even though it coincides with the approach of certain prominent religious groups), there appears to be a substantial danger that the program's primary effect will be to further religious precepts when religiously employed counselors deal with a subject so closely and inextricably tied to religious doctrine.

Substantial constitutional controversy continues to revolve around government financing of church-related schools that combine the inculcation of religious doctrines with the teaching of secular subjects substantially, although not necessarily entirely, as they are taught in public schools. Most forms of public aid for parochial schools, even to support secular courses, have been held to violate the establishment clause, particularly when the aid has been provided directly to the schools themselves rather than to the parents. The Court has usually reasoned that although the aid had a secular (in contrast to a religious) purpose, it was still invalid. The Court's analysis of the problem began with a critical premise: The mission of church-related elementary and secondary schools is to teach religion, and all subjects either are, or carry the potential of being, permeated with religion. Therefore, if the government funds any subjects in these schools, the primary effect will be to aid religion unless public officials monitor the situation to see to it that those courses are not infused with religious doctrine. However, if public officials engage in adequate surveillance, there will be excessive entanglement between government and religion—the image being government spies regularly in parochial school classrooms.

Although no holding of the Supreme Court has overturned this approach, the separate opinion of Justices anthony m. kennedy and antonin scalia in Bowen v. Kendrick reasons that the fact that the assistance goes directly to the schools is not important. Rather, these Justices believe that the use to which the aid is put is crucial. This opinion strongly suggests that a majority of the Court would no longer invalidate most forms of aid to the schools themselves as long as there were adequate controls to assure that the funds were not spent for religious purposes. This is a sound precept. If governmental assistance to parochial schools does not exceed the value of the secular educational service the schools render, then there is no use of tax-raised funds to aid religion and thus no threat of this historic danger to religious liberty.

Tax relief—either exemptions for property used exclusively for worship or other religious purposes, or income tax deductions for parents who send their children to parochial schools—had been held not to violate the establishment clause as long as the benefits extended beyond religion-related recipients. For example, the Court had upheld property-tax exemptions for educational and charitable institutions and tax deductions for school expenses to all parents of school children. By the same token, in texas monthly, inc. v. bullock (1989) the Court invalidated a state sales-tax exemption for books and magazines that "teach" or are "sacred" to religious faith. Because the exemption was for religious purposes only and not the broad-based type of tax relief provided in the earlier cases, the Court held that this governmental aid violated the establishment clause.

In the mid-1980s, probably the most important uncertainty regarding governmental assistance to parochial schools concerned vouchers. Although the decision in witters v. washington department of services for the blind (1986) involved only a special type of voucher and did not speak to the constitutionality of school vouchers generally, its rationale goes a long way to sustaining their validity. The case upheld a state program giving visually handicapped persons a voucher (although it was not called that) for use in vocational schools for the blind. Witters was studying religion at a Christian college "in order to equip himself for a career as a pastor, missionary or youth director." A majority of the Court, even before Justices Kennedy and Scalia had been appointed, agreed that "state programs that are wholly neutral in offering educational assistance to a class defined without reference to religion do not violate the [establishment clause], because any aid to religion results from the private choices of individual beneficiaries." The state's money, however, was plainly being spent for religious purposes. If the government, whether through a voucher or a direct grant to parochial schools, is financing not only the value of secular education in those schools, but also all or part of the cost of religious education, the support is an expenditure of compulsorily raised tax funds for religious purposes and should be held to violate the establishment clause.

Jesse H. Choper
(1992)