A Country I Do Not Recognize

by Robert H. Bork

  Though supportive of the decision, the New Republic was puzzled that the Court accepted Engel for review, since school prayer was not an issue being pressed in the lower courts. Yet the magazine conceded the effect of the ruling, which was to “give recognition to the relatively recent phenomenon of a widespread secular humanism in the country which constitutes, as it were, a new religion of its own.”

  A year later the Court reaffirmed Engel when it struck down Bible reading and recitation of the Lord’s Prayer in cases from Pennsylvania and Maryland that were decided together as Abington v. Schempp (1963).12 Neither state required student participation in the activities—a fact of no importance to the Court. Justice Tom Clark said that the establishment clause requires “neutrality” between government and religion and explained that for a law to pass constitutional muster, it must have “a secular legislative purpose and a primary effect that neither advances nor inhibits religion.” That twofold requirement, by the way, soon mutated into the so-called Lemon test (discussed below) for determining whether a state action violates the establishment clause.

  In dissent Justice Stewart took issue with Clark’s understanding of neutrality, contending that “permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion.” Moreover, he said, “a refusal to permit religious exercises” constitutes “the establishment of a religion of secularism.” A defensive Clark responded: “We do not agree . . . that this decision in any sense has that effect.” Yet Clark declined to explain why that was so. In a lengthy concurrence Justice William Brennan elaborated his view that government acts unconstitutionally if it “uses religious means to serve secular ends when secular means would suffice.” For Brennan, “strict neutrality” must operate strictly—against religion.

  Justice Stewart noticed that the majority’s “doctrinaire reading of the establishment clause” had led to “irreconcilable conflict with the free exercise clause.” He reminded his brethren of the Court’s oft-stated duty “to render [challenged activities] constitutional if reasonably possible.” He pointed out that the Court could have held the activities constitutional on the understanding that public schools in the two states would have to accommodate requests for other religious exercises. “It is conceivable,” he wrote, “that these school boards, or even all school boards, might eventually find it impossible to administer a system of religious exercises during school hours in such a way as to meet this constitutional standard—in such a way as to completely free from any kind of official coercion those who do not affirmatively want to participate. But I think we must not assume that school boards so lack the qualities of inventiveness and good will as to make impossible the achievement of that goal.”

  In Stone v. Graham (1980) the Court held unconstitutional a Kentucky law requiring the posting of the Ten Commandments in the state’s public schools.13 For the Court, it didn’t matter that voluntary, private contributions underwrote the posted copies of the Ten Commandments, nor that the Bible verses were not read aloud, as in the Maryland case reviewed in Schempp, since, of course, they were simply posted on walls. Concluding that the law had not a secular but a religious purpose, the Court worried that students might read, even “meditate upon, perhaps . . . venerate and obey” the Ten Commandments.

  In Wallace v. Jaffree (1985), the Court struck down an Alabama law authorizing public schools to set aside a one-minute period of silence “for meditation or voluntary prayer.”14 The Court cited the intent of the law’s chief sponsor in the legislature to “return voluntary prayer” to the public schools as evidence that the law lacked a secular purpose. Such an intent, declared the Court, is “quite different from [the intent] merely [to protect] every student’s right to engage in voluntary prayer during an appropriate moment of silence during the school day.” Presumably, a moment-of-silence law drafted without “bad intent” is constitutional.

  In Lee v. Weisman (1992), a case from Providence, Rhode Island, the Court extended its school prayer decisions to hold that the state may not direct “the performance of religious activity” at school promotional and graduation ceremonies.15 The “religious activity” happened to be the sort of prayers traditionally offered at such ceremonies—an invocation and a benediction. And the performance of that activity was carried out by area clergy of diverse faiths. The Court found that the school district’s supervision of such ceremonies created pressure, albeit “subtle and indirect,” on “attending students to stand as a group or, at least, maintain respectful silence” while the prayers were said. In the creation of that pressure the Court discerned an establishment of religion. “The state may not,” the justices concluded, “place primary and secondary school children in this position.”

  Eight years later the Court invoked Lee in striking down student-led prayers before high school football games.16 Under rules established by the school district in Sante Fe, Texas, student elections were used to decide whether pregame prayers should be said and, if so, which students would offer the prayers. Writing for the Court, Justice John Paul Stevens found in those arrangements “state sponsorship of a religious message” that is impermissible because “it sends the ancillary message to members of the audience who are non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Sante Fe was guilty of coercing football fans readying themselves for the kickoff “to participate in an act of religious worship” that they might find “personally offensive.” In dissent Justice Rehnquist wrote that the majority opinion “bristles with hostility to all things religious in public life.”

  The banishing of religion from the public schools hasn’t pleased most Americans, to judge by surveys of public opinion taken down through the years. Engel and Schempp in particular have drawn the most sustained objection. Many efforts have been made either to amend the Constitution or to enact statutory law that would allow room for voluntary prayers or other religious activities in the public schools. Consider, for example, the “moment of silence” statutes passed in many states (constitutional so long as they conform to Jaffree). But the only successful effort at the federal level came in 1984, with the passage of the Equal Access Act, which requires public high schools receiving federal funds to allow student-led religious groups to meet (and engage in religious activity such as prayer and Bible study) on the same basis and under the same conditions as any other student-led group. When a Nebraska public high school refused “equal access” to a studentled religious group, a lawsuit ensued, alleging that the school had violated the new law. In Westside v. Mergens (1990), the Court rejected the argument that permitting access would amount to an establishment of religion.17 The Court was persuaded that because individual students chose to participate in a fellowship of religious believers who were also students, the school itself was not endorsing religion.

  Public Aid to Church-Related Schools

  Twenty-one years after the Everson case, the Court returned to the issue of school aid in Board of Education v. Allen (1968).18 Here the Court sustained a New York statute requiring local schools to lend textbooks free of charge to students in grades seven to twelve. It did not matter which schools—public or private, including religious—the students attended. The books dealt with secular subjects only, had to be approved by public school authorities, and were lent directly to the students. The Court found that the law was not unconstitutional because it passed the test devised in Abington v. Schempp (1963) for determining an establishment-clause violation. That test was understood by the Schempp Court in 1963 as a way of effectuating the separationist doctrine of Everson. Writing for the Court in Allen, Justice Byron White said that the parochial school bus law upheld in Everson and the textbook-lending law now under review met the two parts of the test, for both statutes had “a secular legislative purpose and a primary effect that neither advances nor inhibits religion.” Justice
Black disagreed, finding the law “a flat, flagrant, open violation” of the Constitution.

  Three years after Allen the Court decided Lemon v. Kurtzman (1971).19 At issue were state laws that paid the salaries of teachers of secular subjects in church-related schools. The Court did not find that the laws lacked a secular purpose or that their primary effect was to advance or inhibit religion. But the Court added a third element to its analysis—whether a given law fosters an “excessive government entanglement” with religion. Thus was born the Lemon test, and the laws challenged in Lemon were the first to fail it. The Court said the states would have to monitor what the teachers they paid were doing, since they might teach not only math, say, but also faith and morals, and yet such monitoring would entangle public authorities excessively with religious matters.

  For more than a decade, the Court continued to apply the Lemon test, or variants thereof, in school aid cases. The Court ruled against public aid provided directly to church-related elementary and secondary schools, even when the purpose of the aid was secular and its use carefully monitored. Citing the religious dimension of the schools’ mission, the Court saw the schools as “pervasively sectarian” and concluded that the primary effect of public aid given to them directly would be to advance religion. When states designed grants so that the money could be spent only for specific educational purposes unrelated to the schools’ religious goals, the Court said that the monitoring needed to keep track of how the money was being spent excessively entangled the state with religion.

  In 1985 the Court again applied the Lemon test in Aguilar v. Felton.20 Under review was Title I of the Elementary and Secondary Education Act of 1965, which provided funds to public schools for remedial education. Children with learning disabilities were eligible for the assistance regardless of whether they attended public or private (including religious) schools. To implement Title I, public school teachers had for years entered the parochial schools to teach eligible children. That fact doomed the program for a majority of the justices. As they saw it, having public school teachers actually inside parochial schools constituted an excessive state entanglement with religion.

  Legal scholar Kermit Hall has called Aguilar “something of a high-water mark” in the Court’s effort “to drive a clear constitutional wedge” between church and state.21 Yet in time Aguilar would be overruled. Unable to send their teachers into church-related schools, public school authorities responded to Aguilar by resorting to expensive and awkward alternatives. New York City, where Aguilar was litigated, wound up spending most of its federal education aid to lease vans that, parked near the parochial schools, served as mobile classrooms for more than twenty thousand students attending those schools. The Reagan, Bush, and Clinton administrations objected to the practical difficulties that Aguilar had created for the implementation of Title I—as did many school districts across the nation. Eventually the New York City school board decided to challenge the court order in Aguilar under which it still labored. The case was litigated at a propitious moment, for since Aguilar the Court had repudiated the notion that all aid underwriting secular education in church-related schools is unconstitutional. In Agostini v. Felton (1997), the Court abandoned its previous view that “the placement of public employees on parochial school grounds inevitably results” in a violation of the First Amendment.22 Agostini thus permitted the very arrangement that Aguilar had condemned.

  In Mitchell v. Helms (2000), the Court refused to follow separationist precedents as it sustained a federal law authorizing the subsidization of library, media, and computer materials for public and private (including religious) schools.23 Decisions from the mid-1970s counseled the opposite result, and in previous cases as many as six different justices had expressed a willingness to overrule them. Yet in Mitchell, Justice Clarence Thomas, who wrote for three other justices, was unable to gain a fifth vote for repudiating the proposition that, to satisfy the establishment clause, “pervasively sectarian schools” must by reason of their character be excluded from otherwise valid aid programs.

  The Court also has approved public assistance provided directly to students attending church-related schools. In Mueller v. Allen (1983), the Court sustained a Minnesota law allowing taxpayers to deduct from their state taxable income up to $700 per child for tuition, textbook, and school transportation expenses, regardless of whether they attended public or private schools.24 Almost all of those taking the deduction were parents of children enrolled in church-related schools. In Zelman v. Simmons-Harris (2002), the Court upheld an Ohio program authorizing publicly financed vouchers for use in sending students to church-related elementary and secondary schools.25 The vouchers were designed to help children in low-income families living in Cleveland and could be used at public or private—including church-related—schools. The vouchers were provided directly to eligible parents, who were able, as Chief Justice Rehnquist wrote in his opinion for the Court, “to exercise genuine choice among options public and private, secular and religious.” Rehnquist concluded that the program was “neutral” and did not unconstitutionally advance religion. It was left to Justice Stevens, author of the Court’s opinions in Jaffree and Sante Fe, to complain in dissent that “whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of democracy.”

  Over the years the Court has regarded church-related colleges and universities as not only inculcating religious beliefs but also teaching critical thinking skills, and it has viewed college-age students as less “impressionable” than younger students. For these reasons, the Court has been willing to uphold state aid directly given to religious colleges. Nor has the Court found a violation of the establishment clause when a college-age student uses stateprovided vocational education funds to attend a Bible college and prepare for the ministry. In Witters v. Washington (1986), the Court unanimously embraced the principle of neutrality: How college-age students might use public educational funds for which they are eligible should be of no concern to the state. Choice of school and career goals—religious or secular—must be left entirely to the students.

  Other “Establishments” of Religion

  From the nation’s founding our public life has included various acknowledgments and accommodations of religious belief. Once the Court began deciding religion cases in the way it did, its separationist doctrine fraught with far-reaching implications, it was inevitable that plaintiffs would emerge seeking to effect what Richard Neuhaus has called “a public square naked of religious symbol and substance.”26

  One of the first cases concerned state and local laws requiring the closing on Sunday of all but the most essential businesses. The so-called “blue laws” dated from the colonial period and had undeniable religious origins, inasmuch as they were intended both to recognize the Sabbath and to encourage church attendance. But in McGowan v. Maryland (1961) the Court, declining to condemn such laws on account of their religious origins, sustained them because of the secular purpose they now served—that they provided a day of rest that anyone could take advantage of, in whatever way the person wanted.27

  Nine years later in Walz v. Tax Commission (1970) the Court upheld tax exemptions for churches, a policy dating from the colonial period and adhered to by all fifty states and the federal government.28 If it now seems hard to imagine that the Court might have struck down a policy of such vintage and universal acceptance, bear in mind that in Everson the Court did say that “neither a state nor the federal government can . . . pass laws which . . . aid all religions.” Tax exemptions for churches plainly aided “all religions,” a point the majority opinion didn’t deny. Tax exemptions were unconstitutional, if that part of Everson controlled. But not even Justice Black was willing to apply the case in that way. Only Justice Douglas, who in Zorach had declared that “we are a religious people whose institutions presuppose a Supreme Being,” said that tax exemptions constituted an unconstitutional “subsidy”
of religion.

  In Marsh v. Chambers (1983), the Court sustained another practice of two centuries’ standing—the legislative chaplaincy.29 The U.S. Court of Appeals for the Eighth Circuit had duly applied the Lemon test in striking down Nebraska’s chaplaincy. Justice Brennan, had he commanded a majority, would have found the chaplaincy in violation of all three parts of the test. Presumably, Chief Justice Burger would also have been compelled to vote against the chaplaincy had he applied the test—of which he had been the author. Writing for the majority, Burger declined to use the test and instead argued from the “unambiguous and unbroken history of more than 200 years” of federal and state chaplaincies to uphold the Nebraska arrangement.

  In Lynch v. Donnelly (1984) and County of Allegheny v. ACLU (1989), the Court addressed the constitutionality of holiday displays.30 In Lynch, the city of Pawtucket, Rhode Island, erected a Christmas display that included a Santa Claus house, reindeer pulling Santa’s sleigh, a Christmas tree, and a clown, as well as a crèche consisting of the baby Jesus, Mary and Joseph, angels, shepherds and kings, and animals. The Court applied the Lemon test (not used the year before in Marsh) in concluding that in the context of the display, the crèche was constitutional since it had a secular purpose, didn’t advance or inhibit religion, and didn’t excessively entangle the state in religion. Five years later in Allegheny, the Court said that a crèche not surrounded by other, more secular, objects could not be placed in a public building without violating the establishment clause. A menorah, however, won the approval of the Court—because secular symbols were placed close to it.