* Derek H. Davis (B.A., J.D., M.A., Baylor University; Ph.D., University of Texas at Dallas) is Professor of Political Science and Director of the J.M. Dawson Institute of Church-State Studies, Baylor University, and Editor of Journal of Church and State. He is the author, editor, or coeditor of thirteen books, including Religion and the Continental Congress, 1774–1789: Contributions to Original Intent (2000). He acknowledges his appreciation to Chuck McDaniel, a doctoral graduate in Church-State Studies at Baylor University, for assistance in the preparation of this Article.
1 See Stacey Pamela Patton, Providing Education Alternatives; Special Scholarship Fund Gives Low-Income Families A Shot at Private Schooling, Wash. Post, Aug. 17, 2000, at J8.
2 See Swastika Graffiti Greet Students Going Back to Columbine High, N.Y. TIMES, Aug. 18, 1999, at A22.
3 Advertisement: After Columbine What Will You Do? 14 Citizen 29, 29 (2000). Stone v. Graham involved a Kentucky state law that mandated that a copy of the Ten Commandments be posted in all public school classrooms. 449 U.S. 39, 39 (1980). The Supreme Court there determined that the law was plainly religious and lacked any secular purpose and was, therefore, unconstitutional. Id. at 41, 43.
4 See Mark G. Valencia, Take Care of Me When I am Dead: An Examination of American Church-State Development and the Future of American Religious Liberty, 49 SMU L. Rev. 1579, 1632 (1996).
5 See, e.g., Joseph I. Lieberman, “Revolt of the Revolted” Revisited: America’s Values Vacuum and What to Do About It, 35 Harv. J. on Legis. 51, 54–55 (1998).
6 See, e.g., Kim L. Hooper, Historic St. Rita School to Close; Dwindling Enrollment Forces Diocese to Merge the Black Elementary with St. Andrew School, Indianapolis Star, June 21, 2002 at 1B.
7 See 530 U.S. 793, 835–36 (2000).
8 See generally id. at 801–36.
9 Carl H. Esbeck, Equal Treatment: Its Constitutional Status, in Equal Treatment of Religion in a Pluralistic Society 9, 13 (Stephen V. Monsma & J. Christopher Soper eds., 1998).
10 Advocates of other governmental assistance programs such as Charitable Choice, which provides government funds and other resources to the social service organizations of religious groups, also employ this argument about the perceived discriminatory consequences of separation. For a more complete treatment of this topic, see Welfare Reform and Faith-Based Organizations (Derek Davis & Barry Hankins eds., 1990).
11 See infra notes 161–178 and accompanying text.
12 See infra notes 116–160 and accompanying text.
13 See infra notes 98–115 and accompanying text.
14 See infra notes 161–178 and accompanying text.
15 See Christopher L. Eisgruber, Madison’s Wager: Religious Liberty in the Constitutional Order, 89 Nw. U. L. Rev. 347, 384 n.133 (1995).
16 Alexis de Tocqueville, Democracy in America 298 (George Lawrence trans., J.P. Mayer ed., 1969).
17 Id. at 291.
18 See id. at 290–94.
19 Robert S. Ellwood contends that McCarthyism not only attempted to subvert churches supposedly sympathetic to communism but tried to establish “an anticommunist state church.” Robert S. Ellwood, The Fifties Spiritual Marketplace: American Religion in a Decade of Conflict 27 (1997).
20 See infra notes 161–178 and accompanying text.
21 See infra notes 161–178 and accompanying text.
22 See 530 U.S. at 835–36.
23 See id. at 801-36.
24 See generally 530 U.S. 793 (2000).
25 William Lee Miller, The First Liberty: Religion and the American Republic 303 (1986).
26 281 U.S. 370, 375 (1930).
27 See Ellen M. Wasilausky, See Jane Read the Bible: Does the Establishment Clause Allow School Choice Programs to Include Sectarian Schools After Agostini v. Felton?, 56 Wash. & Lee L. Rev. 721, 752–53 (1999).
28 330 U.S. 1, 15–16, 17 (1947).
29 Compare id. at 15–16, with Helms, 530 U.S. at 835–36.
30 See Everson, 330 U.S. at 17–18.
31 Id. at 15–16 (quoting Reynolds v. United States, 98 U.S. 145, 164 (1878)).
32 Id. at 15–16, 17.
33 Compare id., with Helms, 530 U.S. at 835–36.
34 530 U.S. at 801–03.
35 Id. at 803.
36 Id. Of the forty-one private religious schools participating in the program, thirty-four were Roman Catholic. Id.
37 See id. at 807–15. Agostin v. Felton involved Title I of the Elementary and Secondary Education Act of 1965 that entitled all educationally and economically disadvantaged children in public or private schools to publicly funded remedial education services. 521 U.S. 203, 209–10 (1997). The Court there held that the Title I program was constitutional and rejected three prior criteria for evaluating such cases: (1) permitting public employees to work within religious schools inevitably results in the state-sponsored indoctrination of religion; (2) permitting public employees to work within religious schools necessarily constitutes a symbolic union between church and state; and (3) any government aid that enhances the educational function of religious schools violates the separation between church and state. Id. at 223–30, 234–35.
38 Helms, 530 U.S. at 807.
39 Id. at 829.
40 See id. at 809.
41 Id. at 815–20.
42 Id. at 816.
43 Helms, 530 U.S. at 816.
44 Id. Grand Rapids School District v. Ball involved a Michigan shared time program in which public school teachers were employed by private religious schools to teach secular subjects on a part-time basis. 473 U.S. 373, 375 (1985). The Supreme Court found this practice unconstitutional, citing the sectarian environment and effective subsidization of religious schools. Id. at 397–98.
45 Helms, 530 U.S. at 816 (citing Witters v. Wash. Dep’t of Servs. for the Blind,, 474 U.S. 481, 488–89 (1986)(stating “[n]or does the mere circumstance that petitioner has chosen to use neutrally available state aid to help pay for his religious education confer any message of state endorsement of religion.”)).
46 Id. at 837 (O’Connor, J., concurring).
47 Id. at 841 (O’Connor, J., concurring) (citing Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 10 (1993); Witters, 474 U.S. at 487).
48 Helms, 530 U.S. at 841 (O’Connor, J., concurring).
49 509 U.S. at 12.
50 See Helms, 530 U.S. at 835–36.
51 Id. at 816.
52 See id.
53 See id.
54 See id.
55 See Helms, 530 U.S. at 816.
56 See id. at 815–20.
57 Id. at 837 (O’Connor, J., concurring).
58 Id. at 834.
59 Id. at 820; see id. at 840 (O’Connor, J., concurring).
60 Helms, 530 U.S. at 824.
61 See id.
62 See id.
63 See id.
64 Id.
65 See Louis R. Cohen, Historic Preservation Grants and the Establishment Clause, SG040 A.L.I.-A.B.A. 721, 735 (2001).
66 See Helms, 530 U.S. at 834.
67 See id.
68 See id. at 826. The pervasively sectarian nature of the recipient institution was used as a criterion to distinguish an unconstitutional aid to religion program in Meek v. Pittinger, 421 U. S. 349 (1975), from a similar Ohio plan reviewed in Wolman v. Walter, 433 U.S. 229 (1977), where the services provided were found to be constitutional because they were performed away from the “pervasively sectarian atmosphere of the church-related school.” Helms, 530 U.S. at 247.
69 Helms, 530 U.S. at 826.
70 Id. at 826–27.
71 Id. at 827.
72 See id.
73 Id. at 828–29. In Hunt v. McNair, the Court upheld a general revenue bond program excluding from participation facilities used for religious purposes. 413 U.S. 734, 736 (1973).
74 See Helms, 530 U.S. at 807–29.
75 See id.
76 See id.
77 See id.
78 See generally 530 U.S. at 801–36.
79 Helms, 530 U.S. at 837 (O’Connor, J., concurring).
80 See id. at 837–39 (O’Connor, J., concurring).
81 Id. at 837–38 (O’Connor, J., concurring).
82 See generally id. at 801–36.
83 See id. at 837–44 (O’Connor, J., concurring).
84 See Helms, 530 U.S. at 820–25.
85 See id.
86 See generally id. at 801–36.
87 See id. at 867–69 (Souter, J., dissenting).
88 Id. at 885 (Souter, J., dissenting).
89 See Helms, 530 U.S. at 885 (Souter, J., dissenting).
90 See, e.g., David S. Petron, Finding Direction in Indirection: The Direct/Indirect Aid Distinction in Establishment Clause Jurisprudence, 75 Notre Dame L. Rev. 1233, 1236 (2000).
91 See Helms, 530 U.S. at 885 (Souter, J., dissenting).
92 See generally id. at 793.
93 See id. at 801–36.
94 See 530 U.S. 793, 827 (2000).
95 See Rebecca G. Rees, “If We Recant, Would We Qualify?”: Exclusion of Religious Providers from State Social Service Voucher Programs,, 56 Wash. & Lee L. Rev. 1291, 1313–14 (1999).
96 See, e.g., Julie B. Kaplan, Military Mirrors on the Wall: Nonestablishment and the Military Chaplaincy, 95 Yale L.J. 1210, 1229–30 (1986).
97 Helms, 530 U.S. at 827.
98 See 530 U.S. 793, 801–36 (2000).
99 403 U.S. 602, 651 (1971).
100 See 530 U.S. at 809–14.
101 See id.
102 See id.
103 See generally 494 U.S. 872 (1990).
104 Id. at 874, 890.
105 Id.
106 See generally id. at 872. In fact, many states do exempt religious rituals from state laws prohibiting the provision of alcohol to minors. However, these exemptions support Justice Scalia’s concern in Smith: the necessity of creating positive exemptions in law to allow for specific religious practices. See id. at 878–79. The problem is that the Supreme Court appears content that such exemptions are in place to accommodate the majority faiths and it is unwilling to extend legal exemptions to minority religions, reflecting the current majoritarian mood of the Court.
107 See Gary J. Simson, Endangering Religious Liberty, 84 Cal L. Rev. 441, 492 (1996) (reviewing Jesse H. Choper, Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses (1995)).
108 See Helms, 530 U.S. at 801–36.
109 Jacquielynn Floyd, Why All the Intolerance, Pray Tell?, Dallas Morning News,, Oct. 5, 2000, at 29A, available at 2000 WL 28108330.
110 Id.
111 Bob Jones University v. United States demonstrates how the Court might rule in cases where government aid is made contingent on the conformity of religious belief and practice to public morality. See 461 U.S. 574, 602–05 (1983). In that case, the Supreme Court held that the IRS could deny tax-exempt status to the university because of its racially discriminatory admissions policies, even though the school contended that those policies were rooted in deeply and sincerely held religious beliefs. Id. at 602–05.
112 See Helms, 530 U.S. at 809–14.
113 See generally George M. Marsden, The Soul of the American University (1994).
114 See generally id.
115 Id. at 257.
116 See supra notes 98–115 and accompanying text.
117 See Peter Steinfels, The Health Care Debate: The Catholic Church; Bishops Enter Health Battle with a Warning on Abortion, N.Y. Times, July 13, 1994, at A1.
118 See id.
119 See, e.g., David Sapsted, Explosion at Abortion Clinic Kills Policeman, Daily Telegraph, Jan. 30, 1998, at 16.
120 See 508 U.S. 520, 526 (1993).
121 Id. at 526.
122 Id. at 542.
123 See id.
124 See, e.g., Stephen V. Monsma, Substantive Neutrality as a Basis for Free Exercise-No Establishment Common Ground, 42 J. Church & St. 19 (2000).
125 See id. at 25–35.
126 Id. at 23–24.
127 See id. at 24.
128 See id. at 25–35.
129 See Monsma, supra note 124, at 27.
130 Id.
131 See Emp. Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 878–79 (1990).
132 See id.
133 Monsma, supra note 124, at 29. This conclusion is Professor Monsma’s and not this author’s. See id.
134 See id. at 27.
135 See id.
136 See id.
137 See id. at 29.
138 See 530 U.S. 793, 809–14 (2000).
139 See Monsma, supra note 124, at 25–35.
140 See infra notes 141–178 and accompanying text.
141 Monsma, supra note 124, at 28.
142 Id. at 29.
143 Id.
144 See id.
145 See id.
146 See Monsma, supra note 124, at 29.
147 Id. at 30; see also Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995).
148 515 U.S. at 844–46.
149 Monsma, supra note 124, at 30.
150 See, e.g., Ashby D. Boyle II, Fear and Trembling at the Court: Dimensions of Understanding in the Supreme Court’s Religion Jurisprudence, 3 Seton Hall Const. L.J. 55, 90 (1993).
151 See, e.g., Vincent Blasi, School Vouchers and Religious Liberty: Seven Questions from Madison’s Memorial and Remonstrance, 87 Cornell L. Rev. 783, 789 (2002).
152 See Luba L. Shur, Content-Based Distinctions in a University Funding System and the Irrelevance of the Establishment Clause: Putting Wide Awake to Rest, 81 Va. L. Rev. 1665, 1678 (1995).
153 See id.
154 Lack of recognition of this critical subtlety also can be noted in the arguments of those accommodationists who contend that the Establishment Clause intended only that a single religion not be established by the state. This argument is easily refuted by the historical facts of American constitutional development. The Hamilton Plan submitted on June 18, 1787, for example, clearly states that “[n]or shall any Religious Sect, or denomination, or religious test for any office or place, be ever established by law.” 3 The Records of the Federal Convention of 1787, at 628 (Max Farrand ed., 1966). In fact, four of the eleven First Amendment proposals that went before the House of Representatives between July 28, 1789 and August 25, 1789 contained wording that barred only the establishment of a national religion or certain religions over others. Two versions included the wording that “[n]o religion shall be established;” one stated that “[n]o religious doctrine shall be established;” and another began “[n]o national religion shall be established . . . .” See id. Had the framers desired only that no single religion be established by the state, they had ample opportunity to select an amendment that reflected that position. They most assuredly had more in mind, however, because of their recognition of what such a lesser prohibition on government establishment would mean to the society. Madison particularly recognized that the interaction of political and religious institutions invariably leads to the intermixing of values and a collusive union favoring the consolidation of power and denying individual conscience. See id.
155 See, e.g., Thomas C. Berg, Religious Liberty in America at the End of the Century, 16 J.L. & Religion 187, 191 (2001).
156 See id.
157 See, e.g., Ira C. Lupu, Government Messages and Government Money: Santa Fe, Mitchell v. Helms, and the Arc of the Establishment Clause, 42 WM. & MARY L. REV. 771, 820 (2001).
158 530 U.S. at 801–36.
159 See, e.g., Stephen Hegarty, Voucher Complaints Chase Pair, St. Petersburg Times (Florida), Apr. 7, 2002, at 1B.
160 See, e.g., Charlton Heston Steers His Chariot Against British Council Bureaucrats, The Guardian (London), July 4, 1994, at 6.
161 See, e.g., Joan Biskupic, Who’s Next for the Court? Election May Decide Who Gets to Name Up to 3 New Justices, USA Today, Sept. 28, 2000, at 1A.
162 See, e.g., Ann McFeatters, Values at the Root of Gore-Bush Split, Pitt. Post-Gazette, Oct. 8, 2000, at A20; Litmus Tests, Wash. Post, June 16, 1999, at A36.
163 530 U.S. 793, 801–36 (2000).
164 Id. at 911 (Souter, J., dissenting).
165 See id. at 809–14.
166 See, e.g., ,Richard Hooker, Discovery and Reformation: The Wars of Religion, available at http://www.wsu.edu/~dee/REFORM/WARS.HTM (1996).
167 In a multitude of European nations, neutrality principles are applied to make available government money to private religious schools, church-sponsored social programs, and a range of other religious-based services. See generally Stephen V. Monsma & J. Christopher Soper, The Challenge of Pluralism: Church and State in Five Democracies (1997).
168 Id. at 17.
169 Id.
170 Id. at 53.
171 Id. at 122. Active church membership was described in this survey as attending church once or more per week. Id.
172 Monsma & Soper, supra note 167, at 17.
173 See generally id.
174 See generally id.
175 See generally id.
176 See generally id.
177 Monsma & Soper, supra note 167, at 219–21.
178 See id. at 51–82, 121–50, 155–92.
179 See id. at 221.
180 Miller, supra note 25, at 230.