The Rise of the Religious Right in the Republican Party
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Everson v. Board of Education
Research by Jim Allison.
The Supreme Court's first, and most comprehensive, statement about the meaning of the establishment clause is found in Justice Black's majority opinion in Everson v. Board of Education (1947). Briefly, Everson concerned a New Jersey statute that subsidized transportation for students attending private religious schools. While the Court voted to uphold the statute, it rejected the narrow reading of the establishment clause in favor of a broadly separationist reading. A number of principles emerge from the case; most of them are to be found in the following, justifiably famous paragraph (which we have broken down into sections for clarity's sake):
The "establishment of religion" clause of the First Amendment means at least this: (1) Neither a state nor the Federal Government can set up a church. (2) Neither can pass laws which aid one religion aid all religions, or prefer one religion over another. (3) Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. (4) No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. (5) No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. (6) Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State." We note that these words betray no anti-religious bias; on the contrary, the court seems to be at least as interested in protecting the church from the state as it is in protecting the state from the church. In particular, principles 3, 4, and 6 safeguard the right of people to freely practice their religion without interference from the state. Conversely, principles 1, 2, and 5 prohibit the state from favoring any religious belief system above another, or forcing people to support a religion in which they do not believe. Taken together, principles 2 and 5 constitute what is known as the no-aid-to-religion rule. This rule prohibits the government using tax money to support one religion, or to favor religion above no irreligion. Despite no-aid-to-religion rule, however, the Everson Court upheld the New Jersey statute. It did so by formulating a second rule known as the sacred-secular doctrine. As explained by legal scholar Stephen Monsma, Justice Black distinguished between programs that would contribute "money to the schools" or would "support them" and those, such as the one that was being challenged in that case, "indisputably marked off from the religious function" of schools. He held that bus transportation was clearly separable from the religious mission of the schools and similar to general public services such as police and fire protection and sewage disposal. Thus it could be supported by public funds. The Supreme Court thereby established a second crucial legal doctrine, namely, that while public money may not go to support religious programs or organizations, it may go to provide services not directly related to the religious mission of religious organizations. This was the beginning of the legal doctrine that separates the sacred and the secular aspects of a religiously based organization, and holds that public money may flow to its secular, but not its sacred aspects (When Sacred and Secular Mix: Religious Nonprofit Organizations and Public Money, p. 31-32). In many ways the history of establishment clause jurisprudence has been a matter of working out the details of the no-aid-to-religion and sacred-secular doctrines. What constitutes aid to religion? Does indirect aid violate the law? How can we tell when aid breaches the sacred-secular line? None of these questions admit of absolute answers. Fortunately, as the other articles in this section make clear, the Court has hit on additional guidelines that resolve many of the ambiguities in these questions.The Lemon Test
Research by Jim Allison.
The Lemon test was formulated by Chief Justice Warren Burger in the majority opinion in Lemon v. Kurtzman (1971). Lemon dealt with Rhode Island and Pennsylvania programs that supplemented the salaries of teachers in religiously based, private schools for teaching secular subjects. The Court struck down both programs as violating the establishment clause. The purpose of the Lemon test is to determine when a law has the effect of establishing religion. The test has served as the foundation for many of the Court's post-1971 establishment clause rulings. As articulated by Chief Justice Burger, the test has three parts:
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion." According to separationist scholars Barry Lynn, Marc Stern, and Oliver Thomas, the fact that a law may have a "religious purpose or be motivated by religion does not mean it is unconstitutional as long as it also has a bona fide secular or civic purpose" (The Right to Religious Liberty, p. 3). Similarly, "a law that has a remote or incidental effect of advancing religion is not unconstitutional as long as the effect is not a 'primary' effect" (p. 3). Finally, the Court has allowed some entanglement between church and state, as long as this entanglement is not "excessive" (p. 3). Hence, the Court has built some leeway into the test so as not to invalidate laws that have only remote connections to religious practice. This is not, in other words, the work of a Court that was hostile to religion. On the contrary, Justice Burger, a Nixon appointee, is generally reckoned as a conservative on social issues.
We note also that the Lemon test is squarely grounded on the principles articulated in Everson v. Board of Education. Accomodationist legal scholar Stephen Monsma, for example, notes that Burger's opinion is: Deeply embedded in...the sacred-secular distinction and the Supreme Court's evaluation of the state's attempts to separate out the two and subsidize only the latter. His opinion noted that at the trial-court level several teachers had testified "they did not inject religion into their secular classes." And the District Court found that religious values did not necessarily affect the content of secular instruction. Burger agreed, but made the additional, crucial observation that "the potential for impermissible fostering of religion is present." He then went on to conclude that under such circumstances state attempts to assure a strict separation of the sacred and the secular would require continuing state administrative supervision and surveillance, resulting in state entanglement with religion (When Sacred and Secular Mix: Religious Non-Profit Organizations and Public Money, pp. 32-33) The Lemon test has not escaped criticism. Many scholars (including separationists Leonard Levy and Donald Laycock) have argued that the test is unduly subjective and internally consistent, and it's usefulness has been questioned by a majority of the sitting Justices.
Still, as noted by Monsma, ...[the test] has not been formally overruled and the basic principles on which it rests--no-aid- to-religion and the sacred-secular distinction--still form the core of what is the dominant line of reasoning dealing with public funds going to religious nonprofit organizations (p. 33)