Establishment Clause Jurisprudence and Hunt v. McNair and 1973 and facilities and Bill Long

Significant changes to the membership of the Court happened between 1969 and 1971, bringing in its wake a group of Justices who would be far more willing to emphasize the accommodationist task of church and state than the separationist agenda articulated by Justice Wiley Rutledge his 1947 Everson dissent. Justice Fortas, a separationist, was replaced by Justice Blackmun; Chief Justice Warren by Chief Justice Burger; Justice Powell replaced the "First Amendment absolutist Hugo Black," and Justice Rehnquist replaced Justice Harlan. William Douglas would be replaced by Justice John Paul Stevens in 1975, thus removing the last vestiges of the 1947 Court which boldly articulated the separationist vision, even though it was articulated in dissent. Justice Brennan would take up the mantle of the separationist cause, though his careful historical work sought to give a more nuanced consideration of it than the Justices immediately after WWII. Thus, the Court's 6-3 decision in Hunt, interpreting a South Carolina law that was very similar to the federal law upheld in Tilton, is explicable not because of any intervening legal developments but primarily in terms of change in Court personnel.

The Case

The South Carolina Educational Facilities Authority Act assited, through issuance of revenue bonds, higher educational institutions in SC in construction and finance projects, as long as the facilities were not used for sectarian instruction or religious worship. The Authority approved and issued around $3 million of revenue bonds for the Baptist College of Charleston, a college with an approximately 60% Baptist student body. Using the same Lemon test as in Tilton, the Court held that the primary purpose of the law was secular. In order to identify its "primary effect," the Court focused its attention from the statute to the specific transaction before it. In order to determine this, the Court had to limn the nature of the institution. It concluded that the Baptist College was no more pervasively sectarian than the Connecticut colleges in Tilton.

More problematic for the Court was the entanglement prong because of a provision in the statute that required the Authority to oversee the financial affairs of the college to make sure that interest and principal payments would be made in a timely fashion. Specifically, the statute provided that the Authority was empowered:

"generally, to fix and revise from time to time and charge and collect rates, rents, fees and charges for the use of and for the services furnished or to be furnished by a project or any portion thereof..."

The Court commented, "These powers are sweeping ones, and were there a realstic likelihood that they would be exercised in their full detail, the entanglement problems with the proposed transaction would not be insignificant." Yet, the Court concluded that the Authority would not be justified in taking action unless the College refused to meet its financial obligations. Thus, current entanglement threats were not significant.

Dissents

Justice Brennan, writing for Justices Douglas and Marshall, zeroed in on the policing oversight of the Authority. "It is crystal clear," he wrote, "that this scheme involves the State in a degree of policing of the affairs of the College far exceeding that called for by the statutes struck down in Lemon." Even if one accepted the reasoning and decision of Tilton, under the South Carolina scheme there is a "continuing financial relationship," with "annual audies" and other "regulation and surveillance" that are at the core of the financial arrangement. Thus the dissenters posited an intimate continuing relationship of dependency between the government and religiously-affiliated institutions.