Transforming Government

Removing Barriers

Movement toward Neutrality in First Amendment Jurisprudence

Prior to the mid-twentieth century, the U.S. Supreme Court considered very few cases involving the Establishment Clause of the First Amendment. By the 1970s, the Court had interpreted the Clause to prohibit government aid to religious organizations deemed to be "pervasively sectarian," meaning that groups with strong religious orientation were prohibited from participating in otherwise widely available public programs. Nearly all the Court’s early cases dealt with the government providing direct financial assistance (cash or in-kind) to religious schools.ⁱ This pervasively sectarian doctrine required the courts to examine the religious beliefs and practices of religious organizations on a case-by-case basis to determine whether a "substantial portion of its functions are subsumed in [its] religious mission…."ⁱⁱ

In the 1980s, the Court began moving away from a strict separationist paradigm to a philosophy of neutrality that promotes pluralism and nondiscrimination and refrains from using the power of the government purse to coerce individuals’ or organizations’ religious beliefs or practices. A neutral policy provides equal access to government-sponsored programs and forums without requiring forfeiture of religious speech or character. Under the neutrality paradigm, the constitutionality of financial assistance provided directly to an organization rests on the type and use of such aid, instead of focusing on the nature or beliefs of the organization.ⁱⁱⁱ

In its modern neutrality precedents, the Court made clear that faith-based organizations may participate as grantees of Federal social service programs, provided there is "nothing inherently religious" about services provided under the program.^iv Indeed, the Court added that Congress may "recogniz[e] the important part that religion or religious organizations may play in resolving certain secular problems."^v The Court abandoned the "pervasively sectarian" standard, permitting religious organizations to participate in neutral, secular direct aid programs, provided the aid is limited to secular uses and not diverted to religious uses.^vi The constitutionality of a Federal program rests on the use of the aid provided, rather than the character of the organization receiving the aid.

The Supreme Court has also set forth distinct guidelines for programs that allow participants real choice among multiple service providers. Such programs do not provide government funds directly to organizations, but rather to individual participants, so the funding approach is referred to as "indirect aid." In choice-based programs that deliver services using indirect aid, the Court shifted its focus from the nature of the organization providing the services to the nature of the choice provided to the individual beneficiary.^vii The Court held that "where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of beneficiaries who, in turn, direct government aid to religious [organizations] wholly as a result of their own genuine and independent private choice" the program is constitutional.^viii In such programs, faith-based organizations are not required to alter their religious identity or separate religious activities, as any religious indoctrination that may take place is the result of the choice of the individual, rather than government.^ix

Key Modern Establishment Clause Cases

• Zelman v. Simmons-Harris, 536 U.S. 639 (2002): The Supreme Court approved a State program providing vouchers for children in a distressed public school district to attend private schools, including religious schools as well as neighboring public schools. The Court held that "where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of beneficiaries who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice," the program does not violate the Establishment Clause.
  
  
• Mitchell v. Helms, 530 U.S. 793 (2000): The Supreme Court upheld a State and locally administered program that loaned educational materials, including books, computers, software, and audio/visual equipment, to schools in economically disadvantaged areas, including religious schools. The program required schools receiving the aid to limit their use of the materials to "secular, neutral, and nonideological" uses. A majority of the Court rejected the strict separationist theory that some organizations are too religious to participate in Federal aid programs. The plurality described the pervasively sectarian distinction as "offensive," stating that, "[i]t is well established, in numerous other contexts, that courts should refrain from trolling through a person’s or institution’s religious beliefs," which "is just what [the pervasively sectarian distinction] requires." In her concurrence, Justice O’Connor, joined by Justice Breyer, held that for there to be a constitutional violation there must be actual diversion to religious use; providing public aid that merely "has the capacity for, or presents the possibility of, such diversion" is not automatically unconstitutional, thus essentially abandoning the pervasively sectarian standard.
  
  
• Agostini v. Felton, 521 U.S. 203 (1997): In Agostini, the Supreme Court took the rare step of explicitly overturning two of its strict separationist decisions. The Court upheld a program providing remedial education to students of private schools (including religious schools), in which instruction is given on the premises of those schools by public employees. The Court acknowledged that its Establishment Clause jurisprudence had significantly changed since the 1970s and 1980s, especially with regard to its understanding of what constitutes an impermissible effect of state indoctrination of religion or constitutes a "symbolic union between government and religion." The Court did not examine the character of the organizations aided by the program, and instead focused on whether any advancement of religion was reasonably attributable to the government.
  
  
• Bowen v. Kendrick, 487 U.S. 589 (1988): In Bowen, the Supreme Court upheld the constitutionality of the Adolescent Family Life Act (AFLA), which authorizes Federal grants to public and nonprofit organizations, including faith-based organizations, for services and research in the area of premarital adolescent sexual relations and pregnancy. The Court rejected the notion that a program that is facially neutral between secular and religious applicants would necessarily advance religion in violation of the Establishment Clause, noting that the Act contained no requirement that grantees be affiliated with any religious denomination and that there was "nothing inherently religious" about the education and counseling activities funded by the program.
  
  
• Witters v. Washington, 474 U.S. 481 (1986): In Witters, the Supreme Court approved a State program designed to provide vocational training to the blind under which beneficiaries could use State tuition grants at religiously affiliated colleges and to pursue ministerial degrees. The Court held that because the grants were “made available generally without regard to the sectarian-nonsectarian, or public-private nature of the institution benefited,” and flowed to religious organizations "only as a result of the genuinely independent and private choices of" individuals, the program did not have the effect of advancing religion. 

For more information about the regulatory and legal issues associated with the Faith-Based and Community Initiative, read the second chapter of the Quiet Revolution Report.

ⁱSee Aguilar v. Felton, 473 U.S. 402 (1985) (invalidating remedial education for disadvantaged students that was delivered by public school teachers on campuses of religious schools); Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985) (invalidating supplemental courses taught by public school teachers on campuses of religious schools); Wolman v. Walter, 433 U.S. 229 (1977) (invalidating State program to provide instructional materials to religious schools); Roemer v. Maryland Pub. Works Bd., 426 U.S. 736 (1976) (permitting State program providing noncategorical grants to religiously affiliated colleges, provided the colleges are not pervasively sectarian and the grants are not used for sectarian purposes); Meek v. Pettinger, 421 U.S. 349 (1975) (invalidating State program to provide instructional materials to religious schools); Hunt v. McNair, 413 U.S. 734, 743 (1973) (permitting State program to provide bonds for construction of buildings at religiously affiliated colleges, provided college not pervasively sectarian and buildings not used for sectarian purposes); Levitt v. Committee for Pub. Ed., 413 U.S. 472 (1973) (invalidating State payments for State-required tests designed and graded by teachers in religious schools); Lemon v. Kurtzman, 403 U.S. 602, (1971) (invalidating State payments for portion of salaries of teachers in religious schools, textbooks and instructional materials); Tilton v. Richardson, 403 U.S. 672 (1971) (permitting federal program to provide grants for construction of buildings at religiously affiliated colleges, provided college not pervasively sectarian and buildings not used for sectarian purposes).  See also Ira C. Lupu & Robert W. Tuttle, Government Partnerships with Faith-Based Providers: State of the Law (2002); Ira C. Lupu, testimony before the Committee on the Judiciary, Subcommittee on the Constitution, U.S House of Representatives, June 7, 2001; Douglas Laycock, The Underlying Unity of Separation and Neutrality, 46 Emory L.J. 43 (1997).
ⁱⁱHunt, 413 U.S. 734, 743 (1973).
ⁱⁱⁱSee Ira C. Lupu & Robert W. Tuttle, Government Partnerships with Faith-Based Providers: State of the Law (2002); Ira C. Lupu, testimony before the Committee on the Judiciary, Subcommittee on the Constitution, U.S House of Representatives, June 7, 2001; Eric W. Treene, Religion, the Public Square, and the Presidency, 24 Harv. J.L. & Pub. Pol’y 573 (2001); Carl H. Esbeck, Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause, 13 Notre Dame J.L. Ethics & Pub. Pol’y 285 (1999); Douglas Laycock, The Underlying Unity of Separation and Neutrality, 46 Emory L.J. 43 (1997); Stephen V. Monsma and J. Christopher Sopher, eds., Equal Treatment of Religion in a Pluralistic Society (1998).
^ivSee Mitchell v. Helms, 530 U.S. 793 (2000) (permitting State-administered program loaning secular educational materials and equipment to public and private schools, including religious schools); Agostini v. Felton, 521 U.S. 203 (1997) (permitting remedial education for disadvantaged students that was delivered by public school teachers on campuses of religious schools); Bowen v. Kendrick, 487 U.S. 589 (1988) (upholding participation of religious organizations in adolescent pregnancy education and services grant program).
^vBowen, 487 U.S. at 607.
^viMitchell, 530 U.S. 793, 853-60 (O’Connor, J., concurring in the judgment).
^viiSee Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (upholding a State program permitting parents to use vouchers at religiously affiliated schools); Zobrest v. Catalinia Foothills Sch. Dist., 509 U.S. 1 (1993) (permitting a student to receive State-funded sign language interpretation services at his at a religiously affiliated school); Witters v. Washington, 474 U.S. 481 (1986) (upholding a program permitting tuition grants to be used at religiously affiliated colleges and for ministerial studies); Mueller v. Allen, 463 U.S. 388 (1983) (upholding a State tax deduction for private school tuition paid to religiously affiliated schools).
^viiiZelman, 536 U.S. at 652.
^ixSee Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (upholding a State program permitting parents to use vouchers at religiously affiliated schools); Zobrest v. Catalinia Foothills Sch. Dist., 509 U.S. 1 (1993) (permitting a student to receive State-funded sign language interpretation services at his at a religiously affiliated school); Witters v. Washington, 474 U.S. 481 (1986) (upholding a program permitting tuition grants to be used at religiously affiliated colleges and for ministerial studies); Mueller v. Allen, 463 U.S. 388 (1983) (upholding a State tax deduction for private school tuition paid to religiously affiliated schools).