Issue: December, 2005
Author: Stephen M. Feldman
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The Rehnquist Court and Religion
Do the establishment and free exercise clauses protect religious minorities or outsiders? This essay traces the development of establishment-clause doctrine, with a focus on the Rehnquist Court’s recent doctrinal changes. In fact, the current doctrine, as formulated by the Rehnquist Court, favors mainstream religions while harming religious outsiders.
In Lemon v. Kurtzman, a 1971 decision, the Court synthesized previous establishment clause cases into a three-part test: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’” The Court has since applied the Lemon test many times and, despite criticisms, has never expressly and fully repudiated it.
Different justices, though, have introduced and applied alternative doctrines. In Lynch v. Donnelly, decided in 1984, a majority of justices applied the Lemon test to uphold the public display of a crèche as part of a larger Christmas exhibition. Yet, because of dissatisfaction with the Lemon test, Justice O’Connor wrote a persuasive concurrence that advocated the adoption of an endorsement test, consisting of two prongs: first, does the state action create excessive governmental entanglement with religion, and second, does the state action amount to governmental endorsement or disapproval of religion.
Over the next several years, the Court continued to apply the Lemon test, even as additional justices expressed support for the endorsement test. In County of Allegheny v. American Civil Liberties Union, decided in 1989, the Court faced constitutional challenges to two different governmental displays of religious symbols, one including a crèche and one including a Chanukah menorah. A majority of justices could not agree on any one test or standard for determining the constitutionality of these displays. The Court’s majority opinion articulated both the Lemon and the endorsement tests, suggesting that the latter refined the former. Yet, a plurality opinion in the same case fully accepted the endorsement test and argued further that a majority of justices previously had accepted the test, though never in one majority opinion. Finally, Justice Anthony Kennedy, concurring and dissenting, advocated that the Court adopt yet a different approach to establishment clause issues. Kennedy’s coercion test had two parts: first, the “government may not coerce anyone to support or participate in any religion or its exercise,” and second, the government “may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact ‘establishes a [state] religion or religious faith, or tends to do so.’” In subsequent cases, the Court has occasionally applied Kennedy’s coercion test without rejecting either of the other tests.
In Zelman v. Simmons-Harris, decided in 2002, the Court appeared to consolidate these various establishment clause tests with a conservative twist, thus effectively diminishing first amendment protections for religious outsiders. The Zelman Court upheld a school voucher program from Cleveland, Ohio, that allowed parents to use public money to help pay for private-school education, including at religious or sectarian schools. The majority opinion recited only the first two prongs of the Lemon test, the purpose and effects prongs. Justice Breyer’s dissent stressed the third prong, governmental entanglement with religion, by arguing that the voucher program would generate “religiously based social conflict” or divisiveness. The majority, in a footnote, dismissed this concern as irrelevant: “We quite rightly have rejected the claim that some speculative potential for divisiveness bears on the constitutionality of educational aid programs.” In fact, Justice O’Connor’s concurrence in Zelman maintained that the Court had previously “folded the entanglement inquiry into the primary effect inquiry.”
Zelman thus seems to shift the judicial focus to a modified Lemon test, consisting of only two prongs, purpose and effects. Not insignificantly, then, the two leading proponents of alternative doctrines, O’Connor and Kennedy, both joined the Zelman majority opinion, which briefly mentioned endorsement and coercion as if they were mere considerations under the effects prong. Furthermore, and perhaps even more important, the Zelman Court disemboweled the Lemon effects prong. The very point of an effects prong, it would seem, is to inquire into the consequences of governmental action, regardless of the government’s intentions or purposes. In other words, for the effects prong to be meaningful, the Court should ask the following: does the governmental action advance or inhibit religion within the actual social and cultural context of the dispute? Given this focus, a crucial method for proving that the primary effect of a governmental action is to benefit religion would be through statistical evidence. For instance, the complainants in Zelman argued that although the voucher program appeared neutral on its face, ninety-six percent of the beneficiaries sent their children to religious schools. Tellingly, the Zelman Court discounted such statistical evidence as inconsequential. “Our focus,” the Court wrote, “was on neutrality and the principle of private choice, not on the number of program beneficiaries attending religious schools.”
This transformation of establishment clause doctrine seems designed to favor the religious mainstream to the detriment of religious outsiders. In future cases, the sole genuine judicial inquiry will be into governmental purpose; the effects prong has been rendered nominal. Thus, so long as the government does not appear to favor purposefully or intentionally specific religions or religion in general, the governmental action will be upheld. The fact that the government’s action might grossly favor mainstream religions is immaterial under Zelman. And of course, any supposedly neutral governmental program that allows benefits to flow to religious institutions is likely, in reality, to disproportionately favor mainstream religions for the simple reason that the overwhelming majority of people belong to those religions (which is largely why they are called the mainstream). Meanwhile, any governmental action that appears to favor disproportionately an outsider religion will immediately be judicially suspect as purposefully benefiting that religion —because, after all, how else could a legislature funnel benefits to an outsider religion unless it did so intentionally? Thus, quite rightly, Justice Souter’s Zelman dissent denounced the majority’s approach as a “verbal formalism,” a judicial inquiry lacking in any real substance; the Zelman doctrine allows the religious mainstream to direct benefits to itself under the guise of governmental neutrality.
Stephen M. Feldman is a Jerry W. Housel/Carl P. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming.
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