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)

Roemer v. Maryland Public Words Bd.

426 US 736 (Decided June 21, 1976)

Bill Long

This case interpreting a 1971 Maryland statute, amended in 1972, illustrates the way that a test devised in one context by the Court can become a much more complex test in another. In 1971 the Court devised, for Establishment Clause decisions, the threefold Lemon test (purpose, primary effect and entanglement). This had been constructed from the twofold purpose and effect test articulated in Schempp (1963) and the entanglement prong from Walz (1970). But further refinements were afoot. Brennan in his Lemon concurrence wanted to add a fourth factor (divisivenss), which was picked up in this case by Justice Blackmun. Then, also derived from Lemon, was a threefold expansion of the entanglement test, which required the Court to investigate the character of the aided institution, the nature of the aid and the nature of the funding process.

Justice White in dissent was clearly confused by the mutiplication of tests, and would reduce the Establishment Clause test only to the two Schempp factors. It seemed that the Court was developing a mode of Jesuitical argumentation keyed to the Catholic institutions it was trying to examine. Indeed, in Roemer, the Court upheld (5-4) legislatively approved grants to four Catholic colleges in Maryland as long as the schools refrained from awarding "only seminarian and theological degrees" and (in the amended statute) used none of the monies "for sectarian purposes."

Facts of the Case

Maryland enacted a statute in 1971 authorizng payment of state funds to any private institution of higher education within the state that met certain criteria and refrained from awarding "only seminarian or theological degrees." $1,700,000 was distributed to 17 private colleges in 1971 and 1,800,000 in 1972. Five of the colleges were church related, and they received $520,000 in 1971. In 1972, after the Lemon and Tilton cases, the statue was amended to provide that none of the money allocated could be sued for "sectarian purposes." In the actual application of the law, no money was granted to schools which awarded "primarily" theological or seminary degrees. Suit was brought against the five church-related colleges that received direct state payments. One of them, a Protestant school, was dismissed, leaving four Roman Catholic schools as the defendants in the lawsuit. The lower courts upheld the program, reasoning that the entanglement problems evident in Lemon would be absent here both because the institutions are not "pervasively sectarian" and because state review of the programs would be "quick and non-judgmental."

Majority Opinion

Writing for a five Justice majority, two of whom (White and Rehnquist) only concurred in the judgment, Justice Blackmun first reiterated the Court's neutrality principle and then reviewed the growing list of cases since Everson that dealt with knotty questions of state support to religious educational institutions or to families with children in such schools. He then decided to go right after the "primary effect" prong of Lemon and reviewed several crucial findings of fact of the lower court. Even though mandatory theology or religion courses were taught at the colleges, primarily by Romanc Catholic clerics, they seemed to be taught in an atmosphere of "intellectual freedom" and without "religious pressure." Though many classes were begun with prayer, there was no "actual college policy" on that issue. The great majority of students in the institutions are Catholic, but the District Court concluded that student bodies are chosen "without regard to religion." Thus, the Court concluded, folloing the District Court, that the institutions at issue were not pervasively sectarian.

I spent several lines on the findings of fact because the Court's determination of the nature of the institution is really the most significant factor in its ultimate decision. Since they didn't fail the "pervasive sectarianism" test, the schools and their activities could, for the Court's purpose, be divided into secular and sectarian activities. Since the statute only permitted aid to go to secular activities and since it had a process in place that would monitor this compliance without apparent intrusiveness, the requirements of Lemon and Tilton were satisfied. Also crucial for the Court's decision, in my mind, was the difference between secondary and higher Catholic education. The latter, the Court opined, was less controlled by the Church than the former, and therefore presented fewer entanglement problems. An interesting question emerges in our day, however. What if the Catholic Church, in desiring to "reclaim" its institutions of higher education, takes (and it currently is taking) steps to "re-Catholicize" the colleges? Would that mean the need for complete revamping of the Court's jurisprudence on the question?

In any case, the majority concluded that the aid was not impermissible under the Lemon test and the precedents in Tilton and Hunt (1973).

A Word on the Dissents

Three brief dissenting opinions were filed. Justices Brennan and Marshall read the District Court's findings of fact as showing a pervasively religious atmosphere at the schools. The newest Justice (Stevens) brought up a novel concern regarding entanglement: what he called "the pernicious tendency for a state subsidy to tempt religious schools to compromise their religious mission without wholly abandoning it." Most interesting from my perspective, however, was Justice Stewart's brief dissent. Its content is unarresting, but the fact that he now sides with the traditional dissenters means that he might also, like Black, Douglas and Brennan before him, be "liberalizing" (i.e., arguing for more separation between church and state on Establishment Clause issues).