Separation of Church and State (Update)

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In the law concerning religion and the Constitution, the period from the end of world war ii until the mid-1980s can be best characterized as the separationist period. Since 1985, however, two major developments have altered the face of the constitutional landscape. The first concerns interpretation of the establishment clause of the first amendment, upon which much separationist history and law is based. Although some establishment clause principles have been reaffirmed, others have been strongly questioned and several are in flux. Second, the free exercise clause of the First Amendment has become a significant springboard for litigation. Although the number of free exercise precedents has dramatically increased, the direction in which that body of law is heading remains difficult to discern.

Establishment clause problems generally fall into three categories—government aid to religious institutions, the role of religion in public schools, and government support of religious symbols in public places or activities. In all three categories, a crucial and overarching question is whether the clause demands maximum separation of government and religious institutions (separationism) or, alternatively, whether government support of religion is acceptable so long as sectarian discrimination is avoided (accommodationism).

These competing themes remained submerged when an important principle related to the provision of aid to religious institutions was reinforced in the Supreme Court decision in witters v. washington department of services for the blind (1986). In Witters the Court built upon mueller v. allen (1983) in ruling that the establishment clause did not require a state to deny aid to a blind applicant who would use the grant to pay tuition in a program of preparation for the Christian ministry. Though the Justices differed among themselves on the rationale, all seemed to agree that the individual, not the state, was responsible for selecting the program in which the funds would be spent. Such a private choice creates no risk of forbidden church-state interaction and, when viewed in the aggregate with other individual choices of how to spend such grants, creates quantitatively little religious consequences.

This distinction between grants to individuals, which may be "spent" in religious institutions, and grants to the institutions themselves, which the state may not make, may be in danger of collapsing. Only a narrow and shaky majority on the Court reaffirmed the legal principles governing financial aid to religious institutions in the 1985 cases of Grand Rapids School District v. Ball and Aguilar v. Felton. Each case produced another in the line of dissents complaining of the "catch-22" of school aid law: categorical grants of benefits to parochial schools are impermissible aid to religion unless the benefits are monitored to eliminate the possibility of their use to promote religion, but the acts required to monitor restrictions on benefits produce forbidden interaction between church and state.

By 1988 these dissents had ripened into what may well signal a major change in the law governing aid programs. In bowen v. kendrick (1988) a 5–4 majority upheld portions of the Adolescent Family Life Act, which provides federal funds to religious as well as secular institutions for counseling teenagers on matters of sexuality and pregnancy. Despite the obvious dangers of religious indoctrination built into any program that enlists religiously affiliated institutions in counseling on such theologically charged matters, the Court shifted the basic focus of establishment clause analysis by asking whether such indoctrination had occurred in fact. Under its prior cases, the risk of such indoctrination would have been enough to doom the program. Although it is possible that litigants can prove in an individual case that government money is subsidizing religious counsel, the process of judicial decision making in aid to religion cases will be profoundly altered if the Bowen approach is extended to aid to schools and other kinds of church-supported programs. Such proof may be difficult to obtain, and the consequences of such proof will be to condemn isolated instances of abuse rather than to invalidate entire programs of state assistance.

The establishment clause principle that has changed least and seems strongest is that which prohibits the introduction of religious worship or sectarian theology into the public schools. Such an effort was handed a ringing defeat in Edwards v. Aguillard (1987), which invalidated a Louisiana statute requiring public schools to teach "creation science" whenever they teach biological theories of evolution. Despite the state's defense of the requirement as a protection of the academic freedom of those interested in pursuing creationism, the Court found this scheme to be a deliberate attempt to introduce sectarian religious teachings (in particular, the teaching of the Book of Genesis that God created the universe and all its life forms in six days) into the public schools. As such, the law ran afoul of the principle enunciated in the various school prayer cases that the public school must remain free of efforts at religious indoctrination. While teaching about religion may be permissible, teaching designed to inculcate or reinforce religious beliefs is not.

A third context for establishment clause litigation—government involvement with the display or production of religious symbols—has been the most volatile over the past several years. lynch v. donnelly (1984), discussed briefly in the original Encyclopedia entry for this topic, upheld the validity of a city's sponsorship of a Christmas-time display that included a Nativity scene at its center. The uncertain scope of Lynch as authority for government support of displays with some religious significance led to a flurry of litigation in the lower courts involving both Christmas displays and other symbols with religious origins. One lower court, for example, found an establishment clause violation in the adornment of San Bernardino, California, police cars with a shield bearing a Latin cross and Spanish words translating to "With This We Conquer."

In 1989 the Supreme Court tried again to draw lines concerning government sponsorship of such symbols and displays. In county of allegheny v. aclu (1989), a case arising from the celebration of winter holidays in Pittsburgh, Pennsylvania, the Court reached mixed results: a Nativity scene displayed on the grand staircase of the Allegheny County Courthouse was held to constitute a violation of the establishment clause, while an eighteen-foot Hanukkah menorah displayed near a larger Christmas tree outside the city-county building was held not to violate the Constitution. This pair of results is explicable only by reference to the three main groupings on the Court that the County of Allegheny case produced. One group of four Justices—anthony m. kennedy, william h. rehnquist, antonin scalia, and byron r. white—would have upheld both displays on the ground that they were temporary and noncoercive, and therefore did not threaten to establish Christianity or Judaism or any combination of the two. Another group of three Justices—william j. brennan, thurgood marshall, and john paul stevens—would have invalidated both displays on the grounds that they included objects "which retain a specifically (religious) meaning" and therefore may not be supported by the government. The deciding votes in the cases were cast by Justices harry a. blackmun and sandra day o'connor, who adopted the view that government may display, but may not endorse, symbols that have religious meaning for some. Viewing both displays in their seasonal context, these two Justices found that the county had endorsed Christianity with its crèche display but was simply recognizing the secular aspects of the season's holidays with its Christmas tree and menorah combination.

These cases are troubling, and the problems they represent are difficult to solve. Atheists feel offended by any government acknowledgment of the existence of God; many religious people are deeply disturbed by the state's embrace or exploitation of religious symbols; and a line of cases that permits government to display menorahs and crèches next to Christmas trees, but not crèches standing alone, does not inspire confidence in the Court's judgment about law or religion. Solutions at the extreme—eliminating practices such as imprinting "In God We Trust" on coins and currency, on the one hand, or tolerating blatant endorsement by government of sectarian religious symbols, on the other—appear inconsistent with America's national traditions and values. A principled middle ground is hard to articulate and defend, however, as the Allegheny County case reveals.

The symbols cases may reflect a movement away from separationism and toward accommodationism. Though the latter takes many forms, the narrowest and most defensible version involves exemptions for religious activity from legislative burdens otherwise imposed on comparable activity. In Corporation of Presiding Bishop v. Amos (1987), for example, the Supreme Court upheld as an accommodation the exemption for religious institutions from the federal statutory ban on religious discrimination in employment.

Yet not all legislative efforts at accommodation survive establishment clause attack. In texas monthly, inc. v. bullock (1989) a closely divided Court held it impermissible for a state to exempt only religious publications from the state's sales tax. Such an exemption involves the state in distinguishing religious from nonreligious activity and preferring the former. Accommodationism permits such a preference; separationism does not.

The provision protecting the "free exercise of religion" provoked substantial litigation after 1985, but dominant themes are yet to emerge from this body of law. The 1980s were a time of revival among fundamentalist religions in the United States and a time of decline for mainstream religions. One consequence of this was an increase in constitutional attacks under the free exercise clause upon laws that were not intentionally hostile to religion but nevertheless interfered with its practice.

The recent free exercise cases have produced mixed results. The Court's earlier holdings that conditions on unemployment compensation benefits must not, absent an unusually strong reason, interfere with religious practice were reaffirmed and extended in Hobbie v. Florida Unemployment Appeals Commission (1987) and frazee v. illinois division of employment security (1989). But in a number of other cases, the Supreme Court rejected free exercise claims. Some of these were relatively uncontroversial; for example, in Hernandez v. Commissioner of Internal Revenue and Graham v. Commissioner of Internal Revenue (1989) the Court ruled against a claim by members of the Church of Scientology that they were constitutionally entitled to income tax deductions, as charitable contributions, for payment they had made to the church in direct exchange for "auditing" or "training" sessions. Suspicion about whether Scientology was a bona fide religion or an elaborate money-making scheme for its founder may have influenced the outcome of those cases. In Tony and Susan Alamo Foundation v. United States (1985) a unanimous Court—perhaps operating on similar suspicions—rejected a religious foundation's claim to be constitutionally exempt from the wage and hour restrictions of the federal fair labor standards act with respect to employees engaged in commercial activities. And in jimmy swaggart ministries v. board of equalization of california (1990) the Court built logically upon Texas Monthly by holding that the free exercise clause did not compel what the establishment clause forbade—an exemption for the distribution of religious material from the state's generally applicable sales and use tax.

In other free exercise cases, however, claims that appeared meritorious under the Court's announced standards fared equally poorly. In goldman v. weinberger (1986) the Court held that the air force need not accommodate the religious concern of an Orthodox Jewish captain to wear a skullcap while on duty. Deferring to what seemed decidedly trivial objectives on the part of the military to preserve uniformity of appearance, the Court's majority treated the free exercise claim as deserving little respect. o ' lone v. estate of shabazz (1987) extended this approach by granting wide authority to prison officials to refuse to accommodate the religious concerns of prison inmates through any prison regulations that are "reasonably related to legitimate penological interests." And, in what may be the most disturbing of this trio of cases about government enclaves, lyng v. northwest indian cemetery, (1988), a 5–4 majority concluded that the free exercise clause was not even implicated, much less violated, when the United States government proposed to build in a national forest a road that would disturb, by sight and sound, places of religious significance to several Native American tribes. Despite the use of open lands by the tribes for spiritual purposes over many centuries, the Lyng result effectively forecloses any and all free exercise litigation by Indian tribes against government land-use decisions that may despoil Indian holy places. Earlier, in Bowen v. Roy (1986), the Court had also rejected a free exercise claim by a Native American concerning the use of social security numbers on government files pertaining to his family.

Fundamentalist Christians have fared little better in free exercise cases than have the Native American tribes. State courts have been unreceptive to attempts by parents to educate their children at home without state approval. And in a celebrated 1987 case that reached the United States Court of Appeals for the Sixth Circuit, Mozert v. Hawkins County School Board, a group of fundamentalist parents unsuccessfully sought to have their children exempted from a reading program in the public schools that they found objectionable to their religious beliefs. In the battle over education generally, and the public schools in particular, the separationists continue to prevail.

Characterized most generally, the trend in the Supreme Court has been toward easing some of the restrictions imposed on government by the establishment clause while maintaining or increasing the hurdles for free exercise claims. In such a world of deference to legislative judgment, accommodation is far more likely to emerge from the legislative branch than from the judicial branch. Accommodationism, so practiced, presents a substantial risk of favoritism for majority religions—that is, of replicating the evils that the religion clauses of the First Amendment were intended to combat.

Ira C. Lupu


Levy, Leonard W. 1986 The Establishment Clause: Religion and the First Amendment. New York: Macmillan.

Lupu, I.C. 1989 Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion. Harvard Law Review 102:933–989.

Mc Connell, Michael W. 1985 Accommodation of Religion. Supreme Court Review 1985:1–59.