* Professor of Law, University of St. Thomas School of Law (Minneapolis). I presented portions of the material here at the Boston College Law Review Symposium on Separation of Church and State, in April 2002; at a Federalist Society program on “Faith Under Democracy,” in March 2002; at a summer 2001 symposium on Spirituality and Social Justice, sponsored by a grant from the Lilly Endowment; and to a fall 2001 meeting of the Colloquium on Religion and Philosophy at Samford University. I thank David Bains, Hugh Floyd, Penny Marler, and the participants in those sessions for their comments on the various versions of the paper.
1 See John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 282, 359 (2001); Douglas Laycock, The Underlying Unity of Separation and Neutrality, 46 Emory L.J. 43, 50-53, 57–58 (1997). See generally Thomas C. Berg, Anti-Catholicism and Modern Church-State Relations, 33 Loy. U. Chi. L.J. 121 (2001).
2 See George W. Dent, Jr., Secularism and the Supreme Court, 1999 BYU L. REV. 1, 54–58 (1999).
3 See Stephen M. Feldman, Religion-Clause Revisionism: Minorities and the Development of Religious Freedom (Feb. 2002) (unpublished draft on file with author).
4 347 U.S. 483, 495 (1954).
5 See Daniel A. Farber et al., Cases and Materials on Constitutional Law: Themes for the Constitution’s Third Century viii (2d ed. 1998) (Brown “has been the most important reference point for public law thinking since the 1950’s.”).
6 See Berg, supra note 1, at 151–72.
7 See Meek v. Pittenger, 421 U.S. 349, 372 (1975); Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 798 (1973); Sloan v. Lemon, 413 U.S. 825, 832–33 (1973); Lemon v. Kurtzman, 403 U.S. 602, 607 (1971); Sch. Dist. v. Schempp, 374 U.S. 203, 205 (1963); Engel v. Vitale, 370 U.S. 421, 430 (1962).
8 Schempp, 374 U.S. at 205 (Bible readings); Engel, 370 U.S. at 430 (prayer).
9 403 U.S. at 607; see Meek, 421 U.S. at 372; Nyquist, 413 U.S. at 798; Sloan, 413 U.S. at 832–33.
10 See Morton J. Horwitz, The Warren Court and the Pursuit of Justice 13 (1998).
11 304 U.S. 144, 153 n.4 (1938).
12 See Lucas A. Powe, Jr., The Warren Court and American Politics 487 (2000).
13 See 374 U.S. at 207–09.
14 See, e.g., Gregg Ivers, To Build a Wall: American Jews and the Separation of Church and State 100–45 (1995) (describing Jewish organizations’ litigation campaign against theistic test oaths and school prayers and Bible readings).
15 See, e.g., Mark Silk, Spiritual Politics: Religion and America Since World War II 125 (1988) (“From a secular standpoint, the civil rights movement [was simply] about . . . removing barriers to full participation . . . in American life. Religion, as such, could be seen as no more than instrumental to this comprehensive goal, to be pressed into service or decommissioned as the case demanded.”).
16 See Robert T. Handy, A Christian America: Protestant Hopes and Historical Realities 200 (2d ed. 1984); Martin E. Marty, Righteous Empire: The Protestant Experience in America 260–61 (1970).
17 See generally Harvey Cox, The Secular City: Secularization and Urbanization in Theological Perspective (1965).
18 See Colin W. Williams, Where in the World? Changing Forms of the Church’s Witness 24–27, 75–76 (1963).
19 Dietrich Bonhoeffer, Letter of April 30, 1944, in Letters and Papers from Prison 279–82 (Eberhard Bethge ed., 1972). See generally Cox, supra note 17.
20 See Cox, supra note 17, at 1–3; William Hamilton, The New Essence of Christianity 12 & n.1 (rev. ed. 1966); D.L. Munby, The Idea of a Secular Society and Its Significance for Christians 88–91 (1963); Paul M. van Buren, The Secular Meaning of the Gospel 1–7 (1963). See generally The Place of Bonhoeffer: Problems and Possibilities in His Thought (Martin E. Marty ed., 1962).
21 James F. Findlay, Jr., Church People in the Struggle: The National Council of Churches and the Black Freedom Movement, 1950–1970, at 122 (1993) (final brackets in original) (quoting Williams, supra note 18, at 100).
22 See Williams, supra note 18, at 79–80.
23 See Peter L. Berger, The Noise of Solemn Assemblies 35–36, 38 (1961); Pierre Berton, The Comfortable Pew 80–84 (1965); Martin E. Marty, The New Shape of American Religion 98–102 (1959). See generally Gibson Winter, The Suburban Captivity of the Churches (1961).
24 Williams, supra note 18, at 59.
25 Findlay, supra note 21, at 30.
26 See Williams, supra note 18, at 24–27, 75–76.
27 Id. at 122 (quoting Robert Spike, The Negro Rights Revolution: Questions in Midstream (Nov. 29, 1963) (on file in NCC Archives)).
28 Winter, supra note 23, at 177.
29 See S. Jonathan Bass, Blessed Are the Peacemakers: Martin Luther King, Jr., Eight White Religious Leaders, and the ‘‘Letter from Birmingham Jail” 12–13 (2001). See generally Donald E. Collins, When the Church Bell Rang Racist: The Methodist Church and the Civil Rights Movement in Alabama (1998).
30 Colin W. Williams, What in the World? 92 (1964).
31 Id. at 46.
32 Id. at 82–83.
33 See Paul L. Stagg, The Converted Church: From Escape to Engagement 13–14 (1967).
34 See Testimony of Robert S. Alley before the Senate Subcommittee on Constitutional Amendments (Aug. 8, 1966), reprinted in Robert S. Alley, School Prayer: The Court, the Congress, and the First Amendment 247 app. at 250 (1994).
35 Id.
36 Alley, supra note 34, at 104–05.
37 See Bass, supra note 29, at 12–13.
38 Alley, supra note 34, at 122 (quoting Bishop Gerald Burrill).
39 See Williams, supra note 18, at 79–80.
40 See, e.g., Mark DeWolfe Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History 11 (1965).
41 Stagg, supra note 33, at 11.
42 Williams, supra note 30, at 64.
43 See Howe, supra note 40, at 6.
44 Williams, supra note 30, at 36–37.
45 Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion 227 (1993).
46 McDaniel v. Paty, 435 U.S. 618, 641 (1978) (Brennan, J., concurring).
47 448 U.S. 297, 326 (1980).
48 See, e.g., Walz v. Tax Comm’n, 397 U.S. 664, 670 (1970) (“Adherents of particular faiths and individual churches frequently take strong positions on public issues. . . . Of course, churches as much as secular bodies and private citizens have that right.”).
49 Brief of Amicus Curiae on Behalf of the National Council of Churches of Christ in the U.S.A. at 14, Harris v. McRae, 448 U.S. 297 (1980) (No. 79–1268), reprinted in 115 Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law 599, 617 (Philip B. Kurland & Gerhard Casper eds., 1980).
50 See Lemon, 403 U.S. at 612.
51 393 U.S. 97, 108 (1968).
52 Webster v. Reprod. Health Servs., 492 U.S. 490, 568 (1989) (Stevens, J., dissenting).
53 Id. at 571 (Stevens, J., dissenting) (quoting County of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 651 (1989) (Stevens, J., dissenting)).
54 See, e.g., Peter S. Wenz, Abortion Rights as Religious Freedom 188–89 (1992) (arguing that “religion may legitimately matter where the death penalty, the environment, and animals are concerned” because these involve “secular values,” but that many anti-abortion laws are invalid because “the personhood and right to life of young fetuses is a religious matter”); Andrew Koppelman, Secular Purpose, 88 Va. L. Rev. 87, 89 (2002) (interpreting the Establishment Clause requirement of secular purpose to mean “that government may not declare religious truth”).
55 See Wenz, supra note 54, at 188–89.
56 See Williams, supra note 18, at 79–80.
57 See Bonhoeffer, supra note 19, at 279–82.
58 See Williams, supra note 18, at 75–76.
59 Id. at 75.
60 Williams, supra note 30, at xix.
61 Stagg, supra note 33, at 57.
62 Williams, supra note 18, at 102 n.18; Williams, supra note 30, at 85.
63 Williams, supra note 30, at 65, 84.
64 Gabriel Fackre, Theology Ephemeral and Durable, in Restoring the Center: Essays Evangelical and Ecumenical 11, 15 (1998).
65 Douglas Sloan, Faith and Knowledge: Mainline Protestantism and American Higher Education 135 (1994).
66 See John Rawls, Political Liberalism 250 & n.39 (1994). See generally Kent Greenawalt, Religious Convictions and Political Choice (1988).
67 See generally Greenawalt, supra note 66.
68 Rawls, supra note 66, at 250 & n.39.
69 Williams, supra note 18, at 79–80.
70 Id. at 80.
71 Id.
72 See supra note 71 and accompanying text.
73 347 U.S. at 495.
74 392 U.S. 236, 238 (1968) (upholding loans to students of textbooks in secular subjects).
75 413 U.S. at 798 (striking down maintenance grants direct to religious schools and tax credits and tuition supplements to low-income families).
76 Green v. County Sch. Bd., 391 U.S. 430, 441 (1968).
77 Keyes v. Sch. Dist. No. 1, 413 U.S. 189, 213–14 (1973); Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 30 (1971).
78 413 U.S. 455, 464–65 (1973).
79 See, e.g., Berg, supra note 1, at 158–60; Laycock, supra note 1, at 61–62.
80 391 U.S. at 440 (quoting Bowman v. County Sch. Bd., 382 F.2d 326, 333 (4th Cir. 1967) (Sobeloff, J., concurring)).
81 413 U.S. at 464.
82 365 U.S. 715, 715–17 (1961).
83 See Lemon, 403 U.S. at 632–33 (Douglas, J., concurring) (“Where the government activity is the financing of the private school, the various limitations or restraints imposed by the Constitution on state governments come into play.”).
84 See 413 U.S. at 468–70.
85 Green, for example, emphasized that the rejection of the formal “freedom of choice” plan took place “[i]n the context of the state-imposed segregated pattern of long standing,” which the school board had to take “steps adequate to abolish.” See 391 U.S. at 437.
86 See Berg, supra note 1, at 158–59.
87 Id.
88 Martin Gansburg, Bias in State Seen at Critical Stage, N.Y. Times, Feb. 6, 1967, at 1, reprinted in Richard E. Morgan, The Politics of Religious Conflict: Church and State in America 46 (1968) (quoting Dr. Eugene Reed).
89 See Laycock, supra note 1, at 61–62 & nn.116, 117.
90 Id. at 62.
91 Books in Review: Briefly Noted, 88 Christian Century 1103, 1103 (1971).
92 Berg, supra note 1, at 159.
93 Id. at 159 & nn.210–11 (citations omitted).
94 John Deedy, Trouble for the Catholic Schools, N.Y. Times, July 4, 1971, � 4, at 7.
95 The unbroken string of decisions approving particular forms of aid since the early 1980s now includes Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002); Mitchell v. Helms, 530 U.S. 793 (2000); Agostini v. Felton, 521 U.S. 203 (1997); Rosenberger v. Rectors of Univ. of Va., 515 U.S. 819 (1995); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993); Bowen v. Kendrick, 487 U.S. 589 (1988); Witters v. Dept. of Servs., 474 U.S. 481 (1986); Mueller v. Allen, 463 U.S. 388 (1983). Two of the most recent decisions, Mitchell and Agostini, overrule separationist decisions from the 1970s. Mitchell, 530 U.S. at 808; Agostini, 521 U.S. at 235. Each decision in the last two decades includes qualifying language suggesting that other forms of aid might remain unconstitutional, see, for example, Agostini, 521 U.S. at 230–33; but the trend is obviously away from separation and toward a principle of treating religious entities equally in evaluating aid.
96 Employment Div. v. Smith, 494 U.S. 872, 877–81 (1990) (holding that religious practice may be substantially restricted if pursuant to a neutral and generally applicable law).
97 See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98, 119 (2001) (upholding right of religious groups to engage in activities in school rooms on same terms as other groups); Marsh v. Chambers, 463 U.S. 783, 793–95 (1983) (upholding prayers in legislative sessions).
98 C. Eric Lincoln, Race, Religion, and the Continuing American Dilemma 96 (1984); see also Dena S. Davis, Ironic Encounter: African-Americans, American Jews, and the Church-State Relationship, 43 Cath. U. L. Rev. 109, 129–30 (1993) (“It is simply not possible to understand the phenomenon of black political activism without coming to terms with the ubiquitous presence of the black church.”).
99 In a 1997 survey, sixty-two percent of blacks supported vouchers compared with forty-nine percent of the total population. Lowell C. Rose et al., The 29th Annual Phi Delta Kappa Gallup Poll of Public Attitudes Toward the Public Schools 48–49 (1997). In another, fifty-seven percent of blacks supported vouchers compared with forty-seven percent of whites. Joseph P. Viteritti, Choosing Equality: School Choice, the Constitution, and Civil Society 5–6 & nn.14–16 (1999) (citing David Bositis, 1997 National Opinion Poll—Children’s Issues 7 (Joint Center for Political and Economic Studies 1997)). For further statistics, see Zelman, 122 S. Ct. at 2488 n.7 (Thomas, J. concurring), and figures cited therein.
100 See Davis, supra note 98, at 112 (citing Steven M. Cohen, The Dimensions of American Jewish Liberalism 44 (1989)) (reporting that seventy-four percent of African-Americans supported an amendment to permit prayer in public schools, compared with seventy-one percent of non-Jewish whites).
101 For example, a recent national survey study showed that “64% of predominantly African-American congregations were interested in government funds” to provide social services under the charitable choice plan, as compared with forty-five percent of congregations overall. See White House Office of Faith-Based and Community Initiatives, Unlevel Playing Field: Barriers to Participation by Faith-Based and Community Organizations in Federal Social Service Programs n.7 (Aug. 16, 2001), available at http://www.whitehouse.gov/news/ releases/2001/08/unlevelfield2.html (citing Mark Chaves, Religious Congregations and Welfare Reform: Who Will Take Advantage of “Charitable Choice”?, 64 Am. Soc. Rev. 836, 839, 841 (1999)).
102 Id.
103 Associated Press, Elders Attacks Family Planning Limits: Medicaid ‘Had to Be Developed by a White Male Slave Owner’, Wash. Post, Feb. 27, 1994, at A14, available at 1994 WL 2273634.
104 See Powe, supra note 12, at 189 (citing William Beaney & Edward Beiser, Prayer and Politics: The Impact of Engel and Schempp on the Political Process, 13 J. Pub. Law 475, 482 (1964)).
105 See Brief of the NAACP Legal Defense and Education Fund, Inc. et al. as Amici Curiae at 3, Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002) (Nos. 00–1751, 00–1777, 00–1779), available at 2001 WL 1638648.
106 See Jeffries & Ryan, supra note 1, at 340–58.
107 See Howard E. Kershner, The Church and Social Problems, Christianity Today, Mar. 4, 1966, at 35.
108 See Stanley W. Carlson-Thies, “Don’t Look to Us”: The Negative Responses of the Churches to Welfare Reform, 11 Notre Dame J.L. Ethics & Pub. Pol’y 667, 682 (1997).
109 Id.
110 Marvin Olasky, The Tragedy of American Compassion 9 (1992) (quoting Gertrude Himmelfarb, The Idea of Poverty 33 (1984)).
111 Ronald J. Sider & Heidi Rolland Unruh, Evangelism and Church-State Partnerships, 43 J. Church & St. 267, 276 (2001).
112 See, e.g., Kershner, supra note 107, at 35.
113 See Jeffries & Ryan, supra note 1, at 340–58.
114 See Stanley Carlson-Thies, Charitable Choice: Bringing Religion Back into American Welfare, 13 J. Policy Hist. 109, 110–15 (2001). See generally Welfare Reform and Faith-Based Organizations (Derek Davis & Barry Hankins eds., 1999).
115 See Personal Responsibility and Work Opportunity Reconciliation Act of 1996 � 104, 42 U.S.C. � 604A (West 2002).
116 See, e.g., Freedom from Religion Found., Inc. v. McCallum, 179 F. Supp 2d 950, 982 (W.D. Wis. 2002) (striking down direct state grant to faith-based alcohol and drug rehabilitation program, although leaving open whether contract-for-services mechanism used in federal charitable choice would be constitutional).
117 Public Agenda Foundation, Time to Move On: African-American and White Parents Set an Agenda for Public Schools 11, 26 (1998) (quoted in Viteritti, supra note 99, at 33 & n.60).
118 School Daze, Policy Maze, 88 Christian Century 1071, 1071 (1971).
119 See Milliken v. Bradley, 418 U.S. 717, 752 (1974).
120 A 1979 statement of the American bishops vowed that “[n]o sacrifice can be so great, no price can be so high, no short-range goals can be so important as to warrant the lessening of our commitment to Catholic education in minority neighborhoods.” Anthony S. Bryk et al., Catholic Schools and the Common Good 52–53 (1993) (quoting National Conference of Catholic Bishops, Brothers and Sisters to Us 13 (1979)).
121 See Thomas Vitullo-Martin, How Federal Policies Discourage the Racial and Economic Integration of Private Schools, in Private Schools and the Public Good: Policy Alternatives for the Eighties 25, 28–29 (Edward McGlynn Gaffney, Jr. ed., 1981).
122 See id. at 30 (quoting statistics from New York and Chicago Catholic school systems); see also Bryk, supra note 120, at 69 (Catholic high schools nationwide had twenty-two percent minority enrollment in 1990).
123 See, e.g., Andrew M. Greeley, Catholic High Schools and Minority Students, in Private Schools and the Public Good, supra note 121, at 6, 11.
124 Jay P. Greene, Choice and Community: The Racial, Economic, and Religious Context of Parental Choice in Cleveland 7–8 (Oct. 8, 1999), available at http://www.school-choiceinfo.org/servlets/SendArticle/31/Clevint.pdf.
125 Id. at 7.
126 Howard L. Fuller & George Mitchell, The Impact of School Choice on Integration in Milwaukee Private Schools (June 2000), available at http://www.schoolchoiceinfo. org/servlets/SendArticle/6/integ600.pdf. The various studies indicating that religious schools serve minorities and achieve better integration than public schools are summarized in Brief for Amici Curiae on Behalf of the Association of Christian Schools et al. at 8–19, Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002) (Nos. 00–1751, 00–1777, 00–1779), available at 2001 WL 1699133.
127 Robert K. Vischer, Racial Segregation in American Churches and Its Implications for School Vouchers, 53 Fla. L. Rev. 193, 203 (2001).
128 See supra notes 120–123 and accompanying text.
129 Vischer, supra note 127, at 207–13.
130 See id. at 196–97.
131 Zelman, 122 S. Ct. at 2484 (Thomas, J., concurring).
132 See supra notes 10–14 and accompanying text.
133 This is the debate, for example, over the recent United States Court of Appeals for the Ninth Circuit decision striking down the inclusion of “under God” in the Pledge of Allegiance. Compare Newdow v. United States Congress, 292 F.3d 597, 608 (9th Cir. 2002) (quoting County of Allegheny v. ACLU, 492 U.S. 573, 673 (1989) (Kennedy, J., dissenting)) (“‘To be sure, no one is obligated to recite this phrase, . . . . but it borders on sophistry to suggest that the reasonable atheist would not feel less than a full member of the political community every time his fellow Americans recited, as part of their expression of patriotism and love for country, a phrase he believed to be false.’”), with id. at 614 (Fernandez, J., dissenting) (“[S]uch phrases . . . have no tendency to establish a religion in this country or to suppress anyone’s exercise, or non-exercise, of religion. . . . I recognize that some people may not feel good about hearing the phrases recited in their presence, but, then, others might not feel good if they are omitted.”).
134 See, e.g., Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290 (2000); Lee v. Weisman, 505 U.S. 577 (1992); Allegheny , 492 U.S. 573.
135 494 U.S. at 890.
136 Id.
137 Alan E. Brownstein, Evaluating School Voucher Programs Through a Liberty, Equality, and Free Speech Matrix, 31 Conn. L. Rev. 871, 877 (1999) [hereinafter Brownstein, Evaluating School Voucher Programs]; see also Alan E. Brownstein, Interpreting the Religion Clauses in Terms of Liberty, Equality, and Free Speech Values—A Critical Analysis of “Neutrality Theory” and Charitable Choice, 13 Notre Dame J.L. Ethics & Pub. Pol’y 243, 252–66 (1999).
138 Brownstein, Evaluating School Voucher Programs, supra note 137, at 877.
139 Brief of National Jewish Commission on Law and Public Affairs (“COLPA”) as Amicus Curiae in Support of Petitioners, at 3–4, Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002) (Nos. 00–1751, 00–1777, 00–1779), available at 2001 WL 1480708.