Establishment Clause--An Introduction

Older Cases

Important Cases

Everson v. Board (47)

McCollum v. Board (48)

Zorach v. Clauson (52)

Engel v. Vitale (62)

Abington Sch. Dist (63)

Brennan's Opinion (63)

Board v. Allen (68)

Epperson v. AR (68)

Walz v. Commission (70)

Lemon v. Kurtzman (71)

Tilton v. Richardson (71)

Hunt v. McNair (73)

Comm. v. Nyquist (73)

Levitt v Committee (73)

Sloan v. Lemon (73)

Meek v. Pittenger (75)

Roemer v. Maryland (76)

NY v. Cathedral (77)

Wolman v. Walter (77)

Committee v. Regan (80)

Regan II

Stone v. Graham (80)

Widmar v. Vincent (81)

Chambers v. NE (83)

Mueller v. Allen (83)

Lynch v. Donnelly (84)

Wallace v. Jaffree (85)

Aguilar v. Felton (85)

Grand Rap. v. Ball (85)

Witters v. Wash. (86)

Edwards v. Aguillard (87)

Bowen v. Kendrick (88)

Alllegheny I (89)

Allegheny II (89)

Westside v Mergens (90)

Lee v. Weisman (92)

Lee v. Weisman II (92)

Lamb's Chapel (93)

Zobrest v. Catalina (93)

Bd. of Kiryas Joel (94)

Rosenberger v. UVA (95)

Agostini v. Felton (97)

Santa Fe v. Doe (00)

Mitchell v. Helms (00)

Zelman (02)

McCreary County (05)

Van Orden (05)

Abington II--Brennan's Concurrence

Bill Long

Justice Brennan's purpose in his wide-ranging concurrence is none other than to lay out a comprehensive approach for deciding cases under the religion clauses of the First Amendment. In 75 pages (more than 60% of the length of all the opinions in the case) he surveys American history on prayer in the schools, reviews Supreme Court precedent on the role of religion in American life, tries to systematize the Court's approach to its religion cases and even devotes considerable attention to explaining the incorporation doctrine as it relates to the Establishment Clause.

He has no doubt that the practices allowed in PA and MD violated the Establishment Clause; his ultimate purpose was to try to develop a framework by which the Court in the future could determine the limits of constitutional interdependence between church and state. Like Justice Rutledge's dissent in Everson or Justice Rehnquist's dissent in Wallace, Justice Brennan illustrates how knotty are the problems the religion clauses present for interpreters and how essential a careful and reasoned approach to the problems is for courts.

Basic Principles of Religion Clause Interpretation

Several general principles can be extracted from the early sections of his concurrence. First, every involvement of religion in public life is not unconstitutional. Second, following Justice Frankfurter in his McCollum concurrence, the founders had a much greater interest that simply wanting to assure that Congress established no national church. They wanted to have no establishment of religion, and not no establishment of a national church. Third the nub of the religion cluaes is to prevent "those official involvements of religion which would tend to foster or discourage religious worship or belief." Fourth, historical research, for all its benefits, is insufficient for helping us today in determining the meaning of the clauses. The historical record is probably ambigious, America has become considerably more diverse since 1789, and Madison's and Jefferson's opinions, well-thought-out as they are, should not be determinative for America nearly two centuries later.

Three Principles Relevant to the Cases at Bar

Justice Brennan presented what he called three principles of particular relevance to the issues presented by the cases at bar. First, one line of the Court's precedents stressed the need for strict neutrality with respect to theolgical controversies. Second, it is only recently that the Court's decisions have even made a distinction between Free Exercise and Establishment Clauses cases. Third, even though a distinction can often be made between decisions under each, the Court has held that the clauses frequently overlap. Thus, cases under Free Exercise bear considerable relevance to the issues in these cases. The central principle extracted from the Free Exercise cases is that the difference between voluntary attendance and participation and compelled participation is of constitutional magnitude.

Prayer in the Schools

After a further discussion of what the Religion clauses cases since 1947 teach and the issue of incorporation of the Establishment Clause into the Fourteenth Amendment, Justice Brennan launches into a lengthy history of the role of prayer in secondary schools in our nation's history. Complicating the exposition is the realization that true public schools are only an invention of the 19th century, and so prayer in schools from colonial times was done, in fact, in private schools. But when public schools began to proliferate in the 1820s in the East, two debates emerged. First was the debate between Catholics and Protestants, leading to the formation of Catholic schools, about whether in fact the "public schools" were sectarian institutions. Second was the debate within Protestantism of how to make the public schools less sectarian (that is, less identified with any particular denomination) but not secular (that is, by abandoning the general Christian tone).

Statutory provision for daily religious exercises, however, was a product of the early 20th century. Many states made these exercises compulsory, but also, possibly surprisingly, several states either by statute or judicial decision, held that such religious exercises in the public schools would violate their state constitutions. His conclusion can be briefly stated: "Thus the panorama of history permits no other conclusion than that daily prayers and Bible readings in the public schools have always been designed to be, and have been regarded as, essentially religious exercises."

A Framework for the Court's Religion Decisions

Finally, Justice Brennan presents a six-point framework on how to limn the line between permissible and impermissible forms of involvement between government and religion in six different kinds of cases or problems. First, the conflict between Establishment and Free Exercise teaches that some practices, arguably violative of Establishment, are trumped by Free Exercise. Here he places military chaplains or or constitutionality of draft exemptions for conscientious objectors. Second, some activities, like prayer in legislative bodies, seem to violate Establishment but because of their voluntary nature, might not run aground of the Establishment Clause. Third, non-devotional use of the Bible in public schools, for courses in mythology or history of religions, for example, would be permitted.

Fourth, uniform tax exemptions that are incidentally available to religious institutions, such as deductions for contributions to religious bodies, does not seem to violate the Establishment Clause. Fifth, nondiscriminatory programs of governmetal aid may constitutionally include individuals who become eligible wholly or in part for religous reasons. Sixth, some activities which had religious origins but have now been fully secularized, will not violate the Establishment Clause. These might include Sunday closing laws, which the Court upheld in 1961, and mottos such as "In God We Trust" on currency.

Conclusion

Though Brennan stated unequivocally that the practices involved in these cases violated the First Amendment, he was struggling to find a way to deal with issues that no doubt would arise in the future (as the reference to "under God" did in 2002 in the 9th Circuit), and to do so in a systematic and principled manner. That his concurrence has not evoked as much attention as Justice Rutledge's or Justice Rehnquist's dissents should not blind us to the fact that Justice Brennan's careful historical research and analytical classifications are a valiant attempt to bring order to this most difficult area.