Professor Harpaz
Spring, 2008
Religion and the Constitution Review
Spring, 2008 - Part One
We began the course with the earliest Establishment Clause cases, but
this review begins with standing because this is a preliminary hurdle
of justiciability that must be satisfied before a court goes on to
consider the merits of a case.
I. Standing
To establish standing under Article III, a plaintiff must establish
that he has personally suffered some actual or threatened injury as the
result of the challenged conduct, that the injury to the plaintiff can
be traced to the challenged conduct, and that the injury is likely to
be redressed by a decision in the plaintiff's favor. This
requirement is part of the case or controversy requirement of
Article III of the Constitution. In addition to the Article III
constitutional requirements for standing, the Supreme Court has also
developed prudential limits on who may have federal court
standing. If a case is brought in state court, the Article III
standing doctrine does not apply and each state can design its own
rules for state court standing. However, the situation changes if
a case that is brought in a state court is appealed to the United
States Supreme Court. For the Supreme Court to review an appeal
on the merits, the case must satisfy the Article III justiciability
requirements including standing.
A. Establishment Clause Standing - Economic Injury
1. Taxpayer standing
(a) Federal taxpayer status is a sufficient basis for standing to sue
in federal court to challenge taxing and spending programs enacted by
Congress pursuant to its Article I, Section 8 powers as violative of
the Establishment Clause. In this respect the Establishment
Clause is somewhat unique because ordinarily taxpayer status is an
insufficient basis to challenge Congressional actions as violative of
other provisions in the Constitution. This is because the
Establishment Clause is a specific limitation on the federal power to
tax and spend and satisfies the 2 part test of Flast v. Cohen: (1) the
taxpayer must establish a logical link between that status and the type
of Congressional enactment attacked; and (2) the taxpayer must
establish a nexus between that status and the precise nature of the
constitutional infringement alleged. By contrast to Flast, the Flast
test was not satisfied in the Valley Forge Christian College case
because (1) the case did not involve a challenge to a Congressional
exercise of the taxing and spending power under Article I, Section 8,
but was instead a challenge to executive branch action; and (2) the
Congressional Enactment that authorized the property donation was an
exercise of power under the Property Clause of Article IV, Section 3
and thus the Court found no standing existed. In addition, the
Flast test was not satisfied in Hein because Congress did not authorize
the expenditure of funds specifically for the challenged
activity. Instead the challenged activity was by the executive
branch using general executive branch appropriations.
(b) Municipal taxpayer status serves as a basis for standing for a
federal court challenge to a municipal expenditure on Establishment
Clause grounds because of the direct relationship that exists between
the city and its residents. The only requirements are that money
must have been spent by the municipality to fund the asserted
unconstitutional activity and the individual who sues must be a
resident and taxpayer of the municipality whose actions are being
challenged.
(c) State taxpayer status serves as a basis for standing for a federal
court challenge to state expenditures of funds as violative of the
Establishment Clause if the expenditure is more than de minimus so that
the program being challenged actually is a bona fide spending program.
2. Other economic injuries as a basis for standing
Other economic injuries such as to competitors or others who suffer
economic losses as the result of government conduct that grants
economic benefits in violation of the Establishment Clause will also
have a basis for standing.
B. Establishment Clause Standing - Noneconomic Injury
In addition to economic injuries, standing in Establishment Clause
cases can be based on a noneconomic injury, but not on a solely
psychological injury (like being offended) such as the kind of injury
the Court found inadequate in Valley Forge. To serve as the basis
for standing, the noneconomic injury can be:
1. A change in behavior as a result of the asserted Establishment
Clause violation such as a decision to refrain from an activity that
the plaintiff has previously engaged in, or some other alteration in
the challenger’s lifestyle or activities. An example of a change
in behavior could be a change in the route traveled in order to avoid a
religious symbol on public property.
2. A decision to give up the use and enjoyment of
government property such as a state park. This was the basis for
standing in ACLU v. Raban County Chamber of Commerce (Page 83) where
the presence of the cross interfered with the plaintiff’s willingness
to camp on state property. This form of standing may also satisfy
the requirement of a change in behavior. However, since the
plaintiffs in Raban County had never camped in the particular state
park at issue prior to the installation of the cross, it is more easily
classified as a decision to forego use of the park rather than a change
from prior behavior.
3. Significant exposure or direct contact with offensive conduct
can be the basis of standing. A change in behavior is not viewed
as necessary to establish a noneconomic injury. For example, in
Van Orden v. Perry, the Texas Ten Commandments case, Van Orden walked
by the Ten Commandments monument when he used the law library in the
Supreme Court Building. Even though he continued to use the
library on a frequent basis, despite his objections to the monument, he
satisfied the standing requirement. Noneconomic injury is often
the basis for standing in cases where public school pupils are
challenging a religious practice sponsored by the school they attend
such as Bible reading or graduation prayer and the students endure the
discomfort of being present for unwelcome religious
activity.
C. Free Exercise Standing
In Free Exercise challenges, standing is based on the fact that the
challenger has had a substantial burden (either direct or indirect)
placed on his or her ability to engage in a religious practice.
The burden could be that continuing to engage in the religious practice
could result in the loss of government benefits, the risk of criminal
or civil penalties or some other substantial burden.
II. Establishment Clause standard
A. Lemon test
For many years the Court exclusively used the Lemon test to analyze
Establishment Clause issues. Under Lemon, a challenged government
program is constitutional if it satisfies a three prong test: (1) if it
has a secular legislative purpose (that is not a sham), (2) a principal
or primary effect that neither advances nor inhibits religion and (3)
does not create an excessive government entanglement with religion.
(Page 101). The first two prongs of the Lemon test were first
announced in Schempp (Page 42) and the final prong in Walz (page
56). While the test has now been modified in the parochial school
aid context in Agostini v. Felton (see C below) and often ignored in
other contexts, it still is relied on frequently outside the funding
context. Lower courts still commonly apply the Lemon test in
other than parochial school aid cases, sometimes in addition to the
endorsement test, to analyze the constitutionality of government action
challenged under the Establishment Clause. Moreover, the Supreme
Court has used the test in recent years in cases involving
school-sponsored religious activity such as football prayer. In
addition, the test has never been overturned by the Supreme Court
despite much criticism of the test. Rather than rejecting the
test, a number of members of the Court have now expressed the view that
no one test is useful in all Establishment cases. Therefore,
different factual contexts require the use of different tests and even
different version of the same test, as is the case with Lemon (see
Agostini test in Section C below).
B. Endorsement Test
Justice O’Connor first suggested a modification or enhancement of the
Lemon test in Lynch v. Donnelly. Under her approach, both the
purpose and effect prongs of Lemon are examined through the lens of
endorsement. Under this modification, the issue is whether the
government has a purpose to endorse religion and whether the effect of
the challenged practice is to endorse religion so as to “send a message
to nonadherents that they are outsiders, not full members of the
political community” and a “message to adherents that they are
insiders, favored members of the political community.” Under
Justice O’Connor’s version of the test, whether the effect is to
endorse religion or not must be viewed from the vantage point of “a
reasonable observer who evaluates whether a challenged governmental
practice conveys a message of endorsement of religion.” In her
view, “the reasonable observer is knowledgeable and aware of the
history and context of the community and the situation in which the
religious practice occurs.” Even though Justice O’Connor offered
her endorsement test as a gloss on Lemon rather than a separate test,
the endorsement test is often used by lower courts as an alternative to
the Lemon test. Typically such courts alternatively analyze the
case under Lemon and the endorsement alternative. The endorsement
test has been criticized, much as the Lemon test has, by some members
of the Supreme Court including Justice Kennedy. However, it is
sometimes used in opinions of the Court either as a gloss on Lemon or
as alternative to Lemon. Justice O’Connor first crafted the test
in a case involving a holiday display although its use has not been
limited to display cases. It is also used to evaluate the
constitutionality of public school practices such as school
prayer.
C. Agostini Test
The Lemon test was modified in Agostini, a case involving aid to
parochial schools. Under the Agostini modification, there are
only two prongs - purpose and effect. The effect of advancing or
inhibiting religion is now reviewed, at least as stated in Agostini, by
a focus on three factors: (1) whether the program results in
governmental indoctrination of religion; (2) whether it defines its
participants by reference to religion; and (3) whether it creates an
excessive entanglement between government and religion.
Therefore, excessive entanglement, instead of being a factor unto
itself has become just one facet of the effect inquiry.
While the Agostini test has been used in cases that challenge both
direct and indirect government funding of parochial school education
(like Mitchell v. Helms and Zelman), it has not yet been applied to
other Establishment Clause cases such as school prayer. In fact
Lemon was applied in 2000 in Doe, the football prayer case, even though
it was decided 3 years after Agostini. Therefore, it is not clear
that the Agostini test will be used outside the funding context.
D. Strict Scrutiny
Since neutrality among different religions is a central concern of the
Establishment Clause, it is not surprising that the Court employs
strict scrutiny (the use of a necessary means to accomplish a
compelling government objective) to analyze Establishment Clause cases
where the statute on its face discriminates against a particular
religion as in Larson v. Valente, the case in which the Minnesota
legislature passed a law that was purposefully intended to subject “the
Moonies,” otherwise known as the Unification Church, to worse treatment
than mainstream religions. In that case, mainstream religions
received an exemption from various regulations that applied to other
charities, but the Unification Church did not. The Court
interpreted the statute as being an example of facial discrimination
against a particular religion even though the statute did not refer to
“the Moonies” by name. However, it did differentiate between two
types of religious organizations - those that got the majority of their
contributions from members and those that didn’t. Since the
statute on its face did distinguish between two types of religious
organizations, the Court applied strict scrutiny. The strict
scrutiny test has also been used in cases of denominational
preferences, another kind of discrimination among religions.
However, since some denominational preferences are efforts to
accommodate the needs of a particular religious denomination, an
argument can be made that some more lenient standard should be
used. No majority position has yet emerged on this issue.
E. Historical Exception
In rare cases, the Court will uphold a practice that could not
withstand scrutiny under any of the traditional Establishment Clause
tests because the challenged practice is a long-standing unbroken
practice that dates back to the country’s earliest days such as the
legislative chaplain and prayer in Marsh v. Chambers. Another
example occurred in Walz where at least part of the reason for
upholding the property tax exemption was based on the fact that it was
a long-standing practice. Since the widespread existence of
public schools in this country only began in the middle of the 19th
century, the Court does not use this exception to uphold practices in
the public school context. This historical exception to the
Establishment Clause has only been relied on in a few cases.
F. Specific Contexts
Having looked at the various tests, I’m now going to review the various
contexts in which Establishment Clause challenges occur.
(1) Government Funding of Parochial Education
Purpose - In cases involving government funding of parochial education
the government is usually able to assert a secular purpose such as
furthering educational opportunities or improving the quality of
education.
Effect Prong
(a) programs which benefit a broad class of beneficiaries including
religious and nonreligious beneficiaries such as the tax exemptions in
Walz and tax deductions in Mueller or a program to benefit all
schoolchildren like the bus transportation in Everson are more
acceptable in their effects than programs that benefit a narrow class
that includes parochial schools or religious institutions, but not all
schools or schoolchildren. In recent cases, this concern with the
breadth of the beneficiary class has been incorporated into a concern
with neutrality or evenhandedness in the criteria employed to
distribute the aid. In this inquiry, the Court seems more
concerned with the scope of the eligible class than the composition of
the group that actually utilizes the benefits as it made clear in
Mueller. A related question, the scope of the participating
schools and how broadly or narrowly to focus in answering that question
was a point of great contention in Zelman, the school voucher case.
(b) An impermissible effect is usually avoided if the program provides
its benefits directly to parents and students and they are transferred
to parochial schools only as the result of independent private choices
by the direct beneficiaries and not by the government. This kind
of indirect aid occurred in Mueller, Witters, Zobrest and Zelman and
such an arrangement usually results in the program being upheld.
This is even true in cases where the government money, once it passes
through private hands, is used to pay all of the costs of education at
a pervasively sectarian educational institution as in Witters.
(c) Benefits that involve the use of public school employees providing
varying services at the site of a parochial school are constitutional
after Agostini. These include counseling, testing, psychological
services, health services, speech and hearing therapy, diagnostic and
therapeutic services, remedial education, special education, and
programs for gifted children. Thus far all of the programs upheld
by the Court have fallen into two categories: they have supplemented
and not supplanted the education provided by the parochial school or
they provide auxiliary services rather than direct provision of
education. The constitutional status of a program that supplanted
the education the parochial school would otherwise be required to
provide has not yet come before the Supreme Court.
(d) After Agostini, it is acceptable to directly aid the educational
function of religious schools so long as the government does not aid
the religious aspects of that education. The earlier notion that
it was impossible to separate the secular and sectarian aspects of the
education provided by a pervasively sectarian elementary or secondary
school has been abandoned. In addition, Agostini abandoned the
concern that government employees would be influenced by working in the
environment of a parochial school and, therefore, needed to be
monitored. The Court has not revisited the issue of whether
parochial school teachers need to be monitored if the state is paying
their salary, the precise issue raised in Lemon. It did, however,
conclude in Mitchell v. Helms that parochial school teachers can be
presumed to correctly use equipment provided by the state and only use
such equipment for secular teaching (plurality opinion by Justice
Thomas) or, at least presumed to correctly use such equipment if there
are safeguards in place (Justice O’Connor) to monitor use (see section
(e) below).
(e) In evaluating direct aid cases, the loan or provision of equipment
that is nonreligious in character (Mitchell v. Helms) is more
acceptable than direct money payments to parochial schools. The
Supreme Court’s fear that the government will be directly funding the
religious indoctrination that is part of parochial school education
surfaces in cases in which state money is given to a parochial school
to pay for work done by parochial school teachers that lends itself to
inculcation of religion - composing tests in Levitt or teaching after
school classes in Ball. This concern has not been repudiated in
the more recent cases. The Court does not have this same concern
where the services provided do not lend themselves to indoctrination
such as grading state-prepared tests. In cases where the aid
could be diverted for religious use, like the computers in Mitchell v.
Helms, a bare majority of the Court, including Justice O’Connor,
rejecting the view of the plurality opinion, wants to assure itself
that there is sufficient monitoring of use so that diversion is
unlikely. Such monitoring does not create excessive entanglement.
(f) While the Court has not abandoned completely its concern with the
creation of a symbolic union of church and state as seen through the
eyes of impressionable children or the appearance of government
endorsement of parochial education, it no longer is as likely to find
the existence of such an impermissible union. For example, the
Court does not assume that such an impermissible appearance is created
by the presence of government employees or equipment purchased by the
government in a parochial school. In addition, while the Court is
still concerned with the appearance of endorsement in the public school
setting, as can be seen in the recent school prayer cases where this
factor played a role in invalidating the challenged practices, this
impermissible effect is downplayed in the public forum cases including
Mergens and Good News Club. In Mergens, the Court was not
concerned that meetings of a student Bible club would give the
appearance that the school endorsed the club’s activities. In
Good News Club, the Court rejected arguments that elementary school
children would conclude that the government endorsed the activities of
the Good News Club by allowing it to use school facilities immediately
after the end of the school day. The Court rejected this view in
part because parents would need to give permission for their children
to participate in the club and thus the impressionability of the
children was not at issue since they were not the relevant
audience. In the public forum cases, rather than prevent
religious speech, the Court suggests that the schools use devices such
as disclaimers to make clear it is not endorsing the private speech at
issue.
(g) Grants of benefits to institutions of higher education have always
been treated as less susceptible to Establishment Clause invalidation
under the effects prong for a number of reasons: college students are
less impressionable, many religiously affiliated colleges and
universities are not pervasively sectarian, and private colleges and
universities are dominated by secular institutions and are not
overwhelmingly religiously affiliated unlike their elementary and
secondary school counterparts.
(h) Impermissible effects are sometimes not found by the Court because
of the separation of a facial challenge to a program and an as applied
challenge. In a facial challenge, the courts will not examine
facts that relate to particular applications of the law. This
explains the Court’s unwillingness, for example, to look at the
behavior of religious grant recipients in Bowen v. Kendrick when the
statute on its face provided for the delivery of secular services.
Excessive Entanglement - Prior to Agostini, entanglement often created
a Catch-22 paradox for the government. If the government failed
to supervise government employees who provided services at parochial
schools, it risked an impermissible effect; if it constantly supervised
those employees, it created excessive entanglement. With the
elimination in Agostini of the presumption that public school employees
would act impermissibly when teaching in a parochial school, the need
for constant supervision was eliminated.
The Court has recognized a number of different forms of entanglement
over the years. These include administrative cooperation,
political divisiveness and pervasive monitoring. Only the third
of these, pervasive monitoring, can, standing alone, create excessive
entanglement after Agostini. Excessive entanglement does not
exist where there is only administrative cooperation such as filling
out forms, providing financial information, occasional inspections,
etc. Additionally, the Court has downplayed, if not eliminated,
the importance of political divisiveness which occurs when a law has
the potential to produce political debate and division along religious
lines. This may occur where the law requires continuing annual
appropriations from the legislature and where the appropriated money is
directly provided to eligible schools. Such a concern, even if it
exists, is limited to elementary and secondary schools and not colleges
and universities since colleges and universities generally do not have
a local constituency since their student bodies often come from a
widely dispersed geographic area. While the concern over a need for
pervasive monitoring is still valid post-Agostini, such monitoring is
no longer required in numbers of situations, particularly where public
school teachers teach in parochial schools. The one recent case
where the Court talked about political divisiveness and identified it
as a problem was in Doe, the football prayer case, where the school was
to oversee an election to determine if there would be an invocation
prior to football games (see section (2) below).
Another form of unconstitutional entanglement occurs where government
lends its authority to a religious organization as in the Larkin v.
Grendel’s Den case or where it draws governmental boundaries along
religious lines as in Kiryas Joel. This form of entanglement is
still a concern to the Court and has been recognized by Justice Thomas
as a form of religious establishment.
Entanglement arguments sometimes have a comparative dimension whereby
the argument is presented that the entanglement created by the
challenged statute is less than the entanglement that would exist in
its absence - as in the case of tax exemptions for buildings used as a
place of worship.
(2) Intrusion of Religion into the Public Schools
Purpose Prong-The purpose prong is particularly important in cases in
which religion is introduced into the public schools as in school
prayer cases and often is the basis for the Court’s invalidation of the
challenged practice (Stone v. Graham (Ten commandments), Wallace v.
Jaffree (moment of science)). In these cases, the Court looks to
evidence of purpose found, for example, in statements of the law’s
sponsors and the history of the enactment of the law. Even if the
government asserts a secular purpose, the Court may be willing to find
that the asserted purpose is a sham as in Edwards v. Aguillard, the
creation science case, and Sante Fe Independent School District v. Doe,
the football prayer case. The Court states that it will defer to
a plausible secular purpose, but not if the secular purpose is a
sham. In addition, if the law is justified by more than one
purpose, the purpose prong only requires that one plausible purpose for
the law must be secular. For example, the daily recitation of the
Pledge of Allegiance in a public school classroom can satisfy the
purpose prong because the school district’s purpose in reciting the
Pledge may be to encourage patriotism rather than religion, despite the
inclusion of the “under God” language.
Effect - the effect prong may be violated as well when religious
practices such as prayer are introduced into the schools.
In such cases, the Court also may rely on Justice O’Connor’s
endorsement test and find that the government intends to convey a
message of endorsement of religion and that the objective,
knowledgeable observer will perceive such a message. In the
prayer cases, when relying on whether the government will be
perceived to endorse a religious message, a key distinction is between
government-sponsored prayer and private prayer. Government
sponsorship will be found when there are indicia of state involvement
as in the football prayer case even if the prayer is recited by a
student speaker. In addition to an impermissible effect of
endorsement of religion, an additional aspect of effect in the school
prayer cases is focused on by Justice Kennedy in Lee v. Weissman.
In that case, he focuses on the psychological coercion experienced by
those that attend the graduation ceremony to participate in the prayer
or at least stand in respectful silence. Some members of the
current Court including Justices Scalia and Thomas, but not yet a
majority, view coercion more narrowly to only exist when there is legal
compulsion to attend or specific penalties attached to
non-attendance. Moreover, for those members of the Court, who
reject the Lemon test, coercion is not just an aspect of the effect
prong, but is instead often a required element of an Establishment
Clause challenge. In their view, government religious exercises
do not violate the Establishment Clause in the absence of
coercion. However, Justice Scalia would require such noncoercive
religious exercise, such as graduation prayer, to be nondenominational.
In Newdow, some members of the Court who reached the merits of the case
distinguished the effect of the recitation of the Pledge of Allegiance
from the recitation of a prayer. For Chief Justice Rehnquist, the
Pledge was a patriotic exercise rather than a religious one and
therefore the Establishment Clause was not implicated at all. For
Justice O’Connor, the Pledge was acceptable as ceremonial deism that
had a secular purpose (either to reflect the country’s history or to
solemnize an occasion) and did not create the appearance of
endorsement of a particular religion or even religion in general.
See Section (4) below for a further discussion of ceremonial deism.
Entanglement-Entanglement issues surface on occasion in the cases in
which a religious practice occurs in a public school setting. One
example of this is in Lee v. Weissman where the school administration
gave guidelines to the clergy member invited to recite a prayer which
guidelines were designed to spell out the characteristics of a suitable
ceremonial prayer to mark the occasion. Doe, the football prayer
case, was also notable because it was one of the rare recent cases
where the Court was concerned with the political divisiveness aspect of
excessive entanglement. The Court feared that such divisiveness
that would result from subjecting the prayer decision to a vote of the
student body.
(3) Intersection of the Free Speech and Establishment Clauses - in a
group of cases, we saw the intersection of the Free Speech and
Establishment Clauses. In these cases, the government has created
a public forum and excluded religious speakers from that forum.
The religious speaker, such as the student who is a member of a campus
religious group, sues the government under the First Amendment’s free
speech guarantee. The government then raises the Establishment
Clause as a defense. The government justifies the exclusion of
the religious group based on the need to abide by the Establishment
Clause. Since these cases involve viewpoint-based exclusions from
a public forum, the standard of review the Court uses to examine the
challenger’s free speech claim is strict scrutiny. In each case
falling within this category, the government lost because the Court
concluded that the Establishment Clause do not provide a compelling
reason for the government’s action. This was because the
Establishment Clause would not be violated if the government included
private religious speakers in the forum and, therefore, it lacked a
compelling government interest. The Court’s view was that the
government would not be perceived as endorsing the private religious
message when it merely included religious speakers in a forum available
to a wide diversity of speakers (Widmar, Mergens, Lamb’s Chapel,
Rosenberger, Good News Club). It is possible in some
circumstances that a disclaimer may be necessary to avoid the
appearance of endorsement (Rosenberger). If it is, the government
must use that method and others available to it to disassociate itself
from the religious speech rather than prohibit the speech
entirely. While some members of the Court have suggested that the
First Amendment free speech clause always protects private religious
speech in a public forum, others have suggested that there may be
limited situations where the inclusion of the religious speech creates
an unavoidable appearance of endorsement or coercion to participate so
that an Establishment Clause violation can be made out.