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)

Witters v. Wash. Dept.

474 US 481 (Decided January 27, 1986)

Bill Long

Finally, after several years of grinding and unsatisfying disagreement on Establishment Clause issues, the Court found an Establishment Clause case it could reverse 9-0. As the gods of irony would have it, however, when the case was considered on remand by the Washington Supreme Court in 1989, they upheld their previous decision, which had unanimously be reversed by the Supreme Court on federal grounds, on state constitutional grounds. But that is another story, which shall only be hinted at briefly here.

Facts of the Case

Larry Witters sought money from the State of Washington Commission for the Blind for assistance in enabling him to pursue a program in higher education. The program, however, was at the Inland Empire School of the Bible and consisted in courses in the Bible, ethics, speech and church administration with the vocational goal of being a pastor, missionary or youth director. Witters' claim for funds was disallowed administratively and judicially in Washington. Though the grounds for disapproval were based on the Washington State Constitution in the lower court, the Washington Supreme Court affirmed the disallowance on First Amendment grounds using the Lemon test. The WA Supreme Court held that providing state financial assistance to someone who wanted to become a religious professional "clearly has the primary effect of advancing religion."

Holding

Speaking for the unanimous Court, Justice Thurgood Marshall applied the Lemon test and concluded that there was no "purpose" violation. The "more difficult" question was to determine whether the award had the effect of promoting religion. In analyzing the claim, the Court was very solicitous of the precise operation of the Washington program. The crucial observation is as follows: "As far as the record shows, vocational assistance provided under the WA program is paid directly to the student, who transmits it to the educational institution of his or her choice."

Thus, any aid coming to an institution, public or private, comes only as a result of "the genuinely independent and private choices of aid recipients." Recipients have the "full opportunity to expend vocational rehabilitation aid on wholly secular education, and as a practical matter have rather greater prospects to do so." In addition, there was nothing in the record to indicate that a significant portion of the aid expended under the program will end up flowing to religious education. No evidence was even presented indicating that anyone else had ever sought to finance his or her religious education through the State's program. Thus the Court resolutely refused to see the grant as in any way a direct, or even a problematically indirect, support of a religious institution.

Justice Powell's Concurrence

While the majority opinion is long on general words of approbation, it is short on exposition of legal principles which might be useful in other cases. To remedy this deficiency, Justice Powell, with Chief Justice Burger and Justice Rehnquist concurring, felt it was important to state what was at stake in the case. To these three, a principle arising out of Mueller was applicable here. "State programs that are wholly neutral in offering educational assistance to a class defined without reference to religion do not violate the second part of Lemon." Of course Mueller arose out of a tax deduction plan passed by the MN Legislature and this case related to benefits offered by the WA Commission for the Blind directly to citizens. But these three concurrers were sending a subtle message to those hundreds of lawyers who comb their opinions: that when advising Legislators or Boards in crafting programs that will benefit religious people, be sure to frame it as a "general benefit program," even if those who are not religious will potentially benefit from it minimally or not at all.

On Remand

On remand, a divided Washington Supreme Court disallowed the grant on state constitutional grounds. The Washington Constitution has a provision (art 1, sec. 11) in which "no public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment." Over the strenous and well-researched objection of three dissenters, the WA Supreme Court decided that this award was "public money" that was "applied" to "religious..instruction." The 1989 decision by the WA Supreme Court adumbrated an issue that would arise only in the 1990s and now in the 2000s--the relevance of state constitutional provision on religion to Establishment Clause issues.