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)

Committee v. Regan I (Background)

444 US 646 (Decided February 20, 1980)

Bill Long

The central philosophical difficulty with which the Court was laboring in the late 1970s in Establishment Clause cases comes to the fore in this case. It can be simply stated and then historically illustrated. Simply stated it is whether the religious and secular are so inextricably intertwined in Catholic primary and secondary education that no form of direct aid to the schools can pass muster under the Establishment Clause or whether those realms are separable and each possible aid provision from the state to the school must be individually assessed. Basic disagreement among members of the Court underlies the frustration evident among several Justices in this 5-4 decision.

A Page of History

Here is how the issue worked historically. Before Brennan's concurrence in Lemon (71), the Court generally operated with a "sacred/secular" division when considering Catholic (nonpublic) education. If the award or loan was going to a purely secular function (which never actually was precisely defined), it would pass muster. This reasoning lay behind the first textbook loan case in 1968 (Allen). Then, in his 1971 Lemon concurrence, Justice Brennan laid out a different philosophy of Catholic primary and secondary education that became the underlying philosophy of the majority opinion, authored by Stewart, in 1975 (Meek) and was quoted by Justice Blackmun in the 1977 Wolman case as the reason for disallowing the loan of instructional material. This philosophy is captured in these words:

"The very purpose of many of those schools is to provide an integrated secular and religious education; the teaching process is, to a large extent, devoted to the inclucation of religous values and belief.....The secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined."

The implication of adopting this philosophy would be to disallow almost any aid to Catholic schools, even though aid to parents or students might still be justified. Justice Brennan must have thought that when Justice Stewart imported his philosophical statement into the majority opinion in Meek that his goal was achieved. Indeed, when Justice Marshall called for the overturning of Allen in his Wolman dissent, Justice Brennan must have felt pleased.

But such was not to be the case. Not only did the three more hardcore supporters of accommodation (White, Burger and Rehnquist) never seem to feel comfortable with Brennan's definition of Catholic schools, but Justices Powell and Blackmun were only marginally committed to this philosophy. In addition, Stevens, though in agreement with limiting church/state contacts in the realm of secondary education, was seemingly developing a philosophy more in line with Justice Marshall--that there are some neutral public or general welfare services that could be provided to nonpublic school students by the states but that any aid to nonpublic schools, or even parents or children of a such a school, would be impermissible. Therefore, Brennan's potentially helpful and brilliant insight from the perspective of the philosophy of religion went largely unheeded except insofar as he was able to convince his fellow Eisenhower appointee, Justice Potter Stewart.

Conclusion

Thomas Jefferson's "wall of separation," which Justice Jackson had, because of some earlier philosophical disagreement on Establishment Clause issues, likened to his serpentine wall at the University of Virginia, was now in danger of being a post-1989 Berlin Wall: a symbol of times past but now broken down and shattered, with interested people trolling the site to pick up shards of a once clear division between East and West. However, it is probably more accurate to say that it was no accident that the first of the modern Establishment Clause cases, Everson, was decided on a 5-4 vote. Though all seemed to agree on the basic principle of neutrality, they couldn't agree on the implementation of it. Justice Powell mused in 1977 that "our decisions in this troubling area draw lines that often must seem arbitrary." He had no real solace to offer, however. Nor do I.