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)

Mueller v. Allen

463 US 388 (Decided June 28, 1983)

Bill Long

In studying the Court's Establishment Clause cases, one should not only be attentive to the particular holdings and justifications in each case but also to the question of whether possible changes in direction can be attributed more to underlying philosophical problems than to issues of statutory interpretation. For example, when the Court approved reimbursement directly to private schools for the costs of state-required tests in Regan (1980), did this signal a philosophical departure from the general proposition that any kind of direct aid to parochial schools violates the Establishment Clause, or did it reflect the Court's desire to congratulate the New York Legislature for their patient attempt to craft a statute that would pass constitutional muster (which the dissent surmised) or did it reflect a genuine, hard-headead, non-ideological application of the Lemon test to a new set of facts presented in Regan? An indication that this question is not one of mere academic interest is that this Mueller decision, three years later, seems to roll back a very clear holding by the Court in the 6-3 Nyquist decision a decade earlier.

Facts of the Case

By a tax law first passed in 1955 and revised in 1976 and 1978, Minnesota permitted state taxpayers to claim a deduction from gross income for certain expenses incurred in educating their children. The deduction, not to exceed $500 per dependent for elementary and $700 for secondary school expenses, could be claimed by parents if they spent money for allowable tuition, texbooks and transportation expenses of their dependents. The benefit was available to parents of public as well as private school students, though evidence was introduced that only 79 of 815,000 public school students in the state had to pay tuition for school (mostly because of out-of-district transfers). The Court upheld this program despite the fact that Nyquist had disallowed either tuition reimbursement or tax deductions to parents of private school students in New York.

Arguing for the 5-4 majority, Justice Rehnquist framed the problem as to whether the MN benefits were more like the transportation reimbursements in Everson and textbook loans approved in Allen or like the "tax benefits" disallowed in Nyquist or subsidies struck down in Lemon, Levitt, Meek and Wolman. The focus of Justice Rehnquist's inquiry was whether the MN statute violated the second prong of the Lemon test: whether the statute had the "primary effect of advancing the sectarian aims of the nonpublic schools." A tax law, in general, is presumed to be constitutional and the fact that deductions for textbooks, etc. in the statute also was part of a statutory scheme allowing deductions for other charitable donations/contributions suggested that the MN Legislature had a well thought-out plan to relieve taxpayers of various financial burdens. The fact that the benefit was potentially available to both public and private school parents made this case "vitally" different from Nyquist, where only tax benefits to parents of private school students were in view.

In addition, the indirect or "attenuated" nature of the benefit argued for its constitutionality. The "historic purposes of the Clause simply do not encompass the sort of attenuated financial benefit...that eventually flows to parochial schools from the neutrally avaialble tax benefit at issue." To the claim that almost all the aid flowed to parents of private school students, Justice Rehnquist responded, "We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports...."

Thus, he concluded, the statute did not have the primary effect of advancing religion. It was a law of neutral application benefitting parents in general. The law also survived the third Lemon prong--entanglement, because the decisions made by state officials regarding acceptable textbooks for which deductions could be claimed would be no more intrusive than those decisions approved in Allen and Meek.

In Dissent

Justice Marshall's dissent, joined by Justices Brennan, Blackmun, and Stevens, argued that there is no significant difference between the New York statute at issue in Nyquist and the MN law here. Two points of importance for the dissenters were the lack of real difference between direct aid to private schools and tax benefits to parents who enroll their children in those schools and the fact that the benefit provided by law, which in form allowing for all parents to take advantage of it, in substance only benefitted private school parents for its most significant benefit (deduction of tuition expenses). Tax assistance for tuition payments "inevitably redounds to the benefit of nonpublic, sectarian schools and parents who send their children to those schools." Any distinction between the "tax benefit" of Nyquist and the tax deductions here is merely "formalistic." To claim that MN's tax deduction for tuition bears little relation to the arrangment struck down in Nyquist is like saying "that a tangerine bears less resemblance to an orange than to an apple." Minnesota's plan doubtlessly provides and has provided substantial aid to the educational function of church-related schools, contrary to previous precedent (such as in Meek).

One is left to ponder whether the changing makeup of the Court, with the addition of Justice O'Connor in 1981, has now provided a 5-4 majority for more accommodationist philosophy. But two cases from 1985, Aquilar and Grand Rapids, will make us even hesitant to assert this point with confidence. In a word, the Court's precedents seem to be muddled.