THE FREE CONGRESS RESEARCH AND EDUCATION FOUNDATION

20

THE MAKING AND THE UNMAKING OF THE ESTABLISHMENT CLAUSE

James McClellan

The disestablishment of the Anglican Church in Virginia, which Thomas Jefferson accomplished in 1786 with the help of James Madison, is commonly thought to have prepared the way for the adoption of the First Amendment to the Constitution of 1791, declaring that "Congress shall make no law respecting the Establishment of a Religion."As Justice Joseph Story later observed in his famed Commentaries on the Constitution, "the real object of the [First] Amendment was not to countenance, much less to advance Mohametanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which would give to an hierarchy the exclusive patronage of the national government." Directed solely against Congress, the establishment clause gave the states, by implication, full authority to determine church-state relations within their respective jurisdictions. Thus the establishment clause actually had a dual purpose: to guarantee to each individual that Congress would not impose a national religion, and to each state that it was free to define the meaning of religious establishment under its own state constitution and laws. The federal government, in other words, simply had no authority over the states respecting the matter of church-state relations. To be sure, one of the principal reasons for the adoption of the entire Bill of Rights, as we shall see, was to deny the federal government a commanding voice in the general area of civil liberties, except as stipulated in the Constitution itself. The power to define civil liberties within the several states, including the power to decide what practices were acceptable under the general heading of church-state relations, was, in the true sense of that much abused term, the state's right, as determined by state constitutions and state bills of rights.

Such is where matters stood until 1947, when the Supreme Court endeavored for the first time to expound upon the meaning of the establishment clause in the landmark case of Everson v. Board of Education (1947). Pursuant to a state law, the

township of Ewing, New Jersey authorized the reimbursement to parents of money expended for the transportation of their children to and from public and parochial schools. A taxpayer challenged the validity of the law on the grounds that it violated the due process clause of the Fourteenth Amendment, and also constituted an unconstitutional "establishment of religion." Speaking for a sharply divided Court, Mr. Justice Black announced that: "The First Amendment, as made applicable to the states by the fourteenth...commands that a state 'shall make no law respecting an establishment of religion.' " This was the first instance in which the Court interpreted the establishment clause as a restriction on the states. It was a bold and revolutionary step, overturning more than a century and a half of established precedent that had uniformly permitted the States to set public policy regarding their relations with religious organizations. No less novel was the Court's newfangled theory of the establishment clause and its formal adoption of Thomas Jefferson's "Wall of Separation" doctrine. The First Amendment, said Black, "erected a wall of separation between church and state," prohibiting the federal and state governments from giving aid of any kind not only to particular religious sects, but to all religions in general. "Neither a state nor the federal government," contended Justice Black, "can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.... No tax in any amount, large or small, can be levied to support any religious activities or institutions. ...'

This absolutist pronouncement by Justice Black, it must be emphasized, has become the foundation stone for the modern Court's interpretation of the establishment clause. Whether the issue has been Bible-reading, prayer in the public schools, or tuition grants for parochial school children, Black's oft-quoted dictum is sure to be found at the heart of the Court's opinion. But in Everson the Court softened the impact of its new view of the establishment clause by upholding the law in question as a welfare measure assisting children rather than religion. Thus the real significance of Everson lies not in the Court's ruling, but in its adoption of an absolutist theory of church-state relations. Both the majority and dissenting members of the Court were unanimously agreed that the establishment clause should be interpreted as an absolute restriction on governmental aid to religion. "In the words of Jefferson," concluded the Court, "the clause against the establishment of religion by law was intended to erect a wall of separation between church and state." "

The judicial history of the establishment clause since 1947 has

been little more than a replay of Everson, each justice endeavoring to apply Black's dictum to the factual situation under review, while at the same time attempting to refine it as a workable test for determining the limits of state involvement in the religious affairs of the community. In McCollom v. Champaign Board of Education (1948), the Court invalidated a "released time" program in an Illinois school district which allowed children to receive religious instruction in the public schools. The program provided that pupils whose parents had signed a "request card" were excused from their classrooms to attend religious lectures given without pay by Protestant, Catholic, and Jewish teachers, but within the school building and during the regular class day. Pupils not participating in the program were required to continue their secular studies in other classrooms. Speaking again through Mr. Justice Black, a divided Court held that this program of religious education violated the establishment clause, as applied to the states by the due process clause of the Fourteenth Amendment. Following the dictum laid down in Everson that the First Amendment erected an absolute wall of separation between church and state, the Court ruled that the program was unconstitutional because it utilized a "tax-established and tax-supported school system to aid religious groups to spread their faith."

The case of Engel v. Vitale," decided in 1962, involved a local school district in New York which under state law had directed the principal of a public school to cause a prayer to be said aloud by each class at the commencement of the school day. Students who did not wish to participate were permitted to remain silent or to leave the classroom. Seemingly innocuous on its face, the non-denominational prayer, composed and recommended by the State Board of Regents, read simply: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country." In a brief opinion, again written by Black, the Court invalidated the authorizing statute as a violation of the First and Fourteenth Amendments. Clearly, argued the Court, the recitation of a prayer was a religious activity. There was no doubt in Justice Black's mind 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 part of a religious program carried on by government.""

Citing these decisions and a mixed variety of other legal and historical precedents, the Court arrived at a conclusion similar to that reached in the Prayer decision when it decided in 1963

that Pennsylvania and Maryland had breached the "wall of separation" between church and state by requiring public schools to begin each day with readings from the Bible. Despite the fact various Protestant, Catholic and Jewish versions of the Holy Scriptures were used, without prefatory statements, questions, or explanations, and non-participants were allowed to absent themselves from the classroom, Mr. Justice Clark found for the Court that the practice of governmental sponsored Biblereading was not permissible under the Constitution. As applied to the states, the First Amendment, Clark declared, requires "that the Government maintain strict neutrality, neither aiding nor opposing religion."

Board of Education v. Allen (1968), the last case of major importance on church-state relations in the Warren Court, represented a return to the "child benefit" theory of Everson. In sustaining a state statute authorizing the loaning of secular textbooks to all public and parochial students under New York's education law, the Court, speaking this time through Justice White, reasoned that "[t]he law merely makes available to all children the benefits of a general program to lend schoolbooks 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."" Citing Everson and Schempp, White announced that the test of constitutionality was whether the statute in question had “a secular legislative purpose and a primary effect that neither advances nor inhibits religion." He acknowledged that "[t]his test is not easy to apply," but concluded that under these standards the statute in question was no different from that which the Court found acceptable in Everson.

Since 1969, when Warren Burger succeeded Earl Warren as Chief Justice, the Court has endeavored to follow the difficult course laid out in Everson, steering between the Scylla of Black's absolutist theory and the Charibdis of his actual holding in Everson. From the standpoint of uniformity, the decisions have not been entirely satisfactory, and the Court seems to have made little progress in resolving what Chief Justice Burger has accurately described as the "internal inconsistency in the opinions of the Court..." Certainly it is difficult to disagree with Justice Powell's contention that the Court's decisions, viewed as a whole, lack a coherent rationale. The cases, for example, reflect the questionable assumption that government aid to church-related colleges is less obtrusive than government aid to

primary and secondary schools, where the students are supposedly more susceptible to religious indoctrination." It is not entirely clear why government funding of bus transportation to and from parochial schools is acceptable under the establishment clause, but public funding of transportation for field trips is not; nor is there a sharp analytical distinction between state aid in the form of textbooks, which is not prohibited, and state aid in the form of other instructional materials, such as maps, which is prohibited." In terms of aid to religion, it would also seem that a tax exemption to a house of worship has a more direct effect than a tax credit to the parent of a child enrolled in a church-affiliated school.20 These distinctions without a difference, suggests Powell, may be justified on the grounds that the Court has wisely sacrificed logical consistency in order “to establish principles that preserve the cherished safeguard of the Establishment Clause" while at the same time encouraging "the positive contributions of sectarian schools....""

The balancing of these diverse interests is surely a delicate task that has produced much disagreement and doctrinal confusion in the Court. In reality, the Court seems to have worked itself into a corner, straining on the one hand to maintain Black's absolutism, while on the other to accommodate deeply rooted habits and practices that actually breach the wall of separation. Comparing the decisions of the present Court with those of the Vinson-Warren era, it is nevertheless reasonable to say that "[b]oth the absolutism of Mr. Justice Black and his particular conceptions of religion's relation to government seem, on the whole, to wane in influence as the Burger Court takes shape."" Although this modest departure has not been applauded by all the members of the Court, there is no denying that "the heritage of Mr. Justice Black appears presently to receive a somewhat skeptical attention. The present Court expressly abjures ‘absolutism'; it 'balances' or 'accommodates' the First Amendment provisions which Mr. Justice Black regarded as unqualified."" Whether this trend will continue, and the ultimate fate of Justice Black's absolutism, are questions that cannot now be answered. But this much seems obvious: The number of ways in which public funds can be channeled into the private sector for the benefit of nonpublic education is not infinite. There are some schemes which have yet to be examined by the Court, such as the experimental voucher system, but on the whole it may be that we have already reached the limits of possible funding alternatives. If this is so, then we can expect fewer decisions under the establishment clause and a greater likelihood that the theory.