* (c) 2002, Dr. Steven K. Green. Dr. Steven K. Green is Associate Professor of Law at Willamette University College of Law in Salem, Oregon. The title comes from Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 849 (1995) (O’Connor, J., concurring).
1 According to Professor Esbeck, the debate over the interpretation of “the no-establishment principle has become one of the chief battle sites over who exercises cultural authority in this nation. Quite simply, the Establishment Clause has become where Americans litigate over the meaning of America.” Carl H. Esbeck, A Constitutional Case for Governmental Cooperation with Faith-Based Social Service Providers, 46 Emory L.J. 1, 3 (1997) (citations omitted).
2 See Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001). See generally Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002); Mitchell v. Helms, 530 U.S. 793 (2000); Agostini v. Felton, 521 U.S. 203, 234 (1997).
3 See generally Employment Div. v. Smith, 494 U.S. 872 (1990).
4 Lemon v. Kurtzman, 403 U.S. 602, 625 (1971) (school funding). See generally Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203 (1963) (school prayer and Bible reading).
5 See Allegheny County v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989); Chabad-Lubavitch v. City of Burlington, 936 F.2d 109 (2d Cir. 1991); Smith v. Albermarle County, 895 F.2d 953 (4th Cir. 1989). See generally Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982).
6 See, e.g., Jones v. Wolf, 443 U.S. 595, 602 (1979); Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724, 725 (1976).
7 Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334 (1987); NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 506 (1979).
8 See Walz v. Tax Comm’n. of N.Y., 397 U.S. 664, 673 (1970). But see Jimmy Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378 (1990); Alamo Found. v. Sec’y of Labor, 471 U.S. 290 (1985).
9 See Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985); Stone v. Graham, 449 U.S. 39 (1980); Meek v. Pittenger, 421 U.S. 349 (1975).
10 Allegheny County, 492 U.S. at 573; United States v. Ballard, 322 U.S. 174 (1944).
11 See Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788, 792–93 (1973) (“pursue a course of neutrality toward religion”); Walz, 397 U.S. at 669–70 (referring to a position of “benevolent neutrality” that “derives from an accommodation of the Establishment and Free Exercise Clauses.”); Abington Sch. Dist., 374 U.S. at 251, 222 (“wholesome ‘neutrality’”).
12 330 U.S. 1, 16 (1947). Justice Black, the author of Everson, would later dissent from the Court’s 1968 decision upholding the provision of secular textbooks to public and parochial schools, arguing that neutrality had its limits, especially where it resulted in state finances “actively and directly assist[ing] the teaching and propagation of sectarian religious viewpoints”). See Bd. of Educ. v. Allen, 392 U.S. 236, 253 (1968) (Black, J., dissenting).
13 See Nyquist, 413 U.S. at 781–82 (distinguishing generalized benefits from aid to religious institutions); Allen, 392 U.S. at 243–44 (same).
14 Nyquist, 413 U.S. at 788 (declaring that “our cases require the State to maintain an attitude of ‘neutrality,’ neither ‘advancing’ nor ‘inhibiting’ religion.”); Walz, 397 U.S. at 669 (referring to a regime of “benevolent neutrality”).
15 Bd. of Educ. v. Mergens, 496 U.S. 226, 248 (1990); Abington Sch. Dist., 374 U.S. at 223.
16 See Lemon, 403 U.S. at 622–23.
17 Allen, 392 U.S. at 249 (Harlan, J., concurring).
18 See Epperson v. Arkansas, 393 U.S. 97, 103–04 (1968) (“Government in our democracy . . . must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of nonreligion; and it many not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and religion and nonreligion.”).
19 Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8–9 (1993) (evenhanded); Mueller v. Allen, 463 U.S. 388, 401 (1983) (evenhanded); Meek, 421 U.S. at 372 (secular); Tilton v. Richardson, 403 U.S. 672, 677 (1971) (median); Allen, 392 U.S. at 245 (secular); Everson, 330 U.S. at 18 (median). See Justice Souter’s discussion in Mitchell, 530 U.S. at 878–84.
20 See Mitchell, 530 U.S. at 836–41 (O’Connor, J., concurring); id. at 877–85 (Souter, J., dissenting).
21 Compare Douglas Laycock, The Underlying Unity of Separation and Neutrality, 46 Emory L.J. 43 (1997) [hereinafter Underlying Unity], with Esbeck, supra note 1, at 4. See generally 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 (1999); Daniel O. Conkle, The Path of American Religious Liberty: From the Original Theology to Formal Neutrality and an Uncertain Future, 75 Ind. L.J. 1 (2000); Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DePaul L. Rev. 993 (1990) [hereinafter Formal, Substantive, and Disaggregated Neutrality]; Michael W. McConnell, Neutrality Under the Religion Clauses, 81 Nw. U. L. Rev. 146 (1986); Dhananhai Shivakumar, Neutrality and the Religion Clauses, 33 Harv. C.R.-C.L. L. Rev. 505 (1998); Kathleen M. Sullivan, Parades, Public Squares and Voucher Payments: Problems of Government Neutrality, 28 Conn. L. Rev. 243 (1996); John T. Valauri, The Concept of Neutrality in Establishment Clause Jurisprudence, 48 U. Pitts. L. Rev. 83 (1986).
22 Formal, Substantive, and Disaggregated Neutrality, supra note 21, at 994.
23 See Bowen v. Kendrick, 487 U.S. 589, 608–09 (1988); Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481, 490–91 (1986) (Powell, J., concurring); Mueller, 463 U.S. at 398–99.
24 Of course, the neutrality theory has had an even greater impact in the Free Exercise context with the 1990 decision of Employment Division v. Smith, 494 U.S. 872, a decision generally deplored by separationists and accommodationists alike. For a discussion of its relevance in this context, see text accompanying notes 139–144.
25 See Mergens, 496 U.S. 226; Widmar v. Vincent, 450 U.S. 909 (1981).
26 See Good News Club, 533 U.S. at 114.
27 See generally Zobrest, 509 U.S. at 8; Witters, 474 U.S. 481 at 490–91 (Powell, J., concurring); Mueller, 463 U.S. at 398–99.
28 Witters, 474 U.S. at 490–91 (Powell, J., concurring).
29 515 U.S. at 859.
30 Id. at 839.
31 Id. Justice Kennedy did limit the reach of the neutrality principle by implying a different resolution had the Court confronted a case “where, even under a neutral program that includes nonsectarian recipients, the government is making direct money payments to an institution or group that is engaged in religious activity.” Id. at 842.
32 530 U.S. at 810 (Thomas, J., plurality opinion).
33 Id. at 837 (O’Connor, J., concurring).
34 According to Justice O’Connor, the Court’s earlier holdings touting the importance of neutrality “provide no precedent for the use of public funds to finance religious activities.” Rosenberger, 515 U.S. at 847 (O’Connor, J., concurring); accord Zelman, 122 S. Ct. at 2476 (O’Connor, J., concurring).
35 Mitchell, 530 U.S. at 838 (O’Connor, J., concurring).
36 See id. at 809–14.
37 Zelman, 122 S. Ct. at 2476 (O’Connor, J., concurring); Mitchell, 530 U.S. at 838 (O’Connor, J., concurring); id. at 883-84 (Souter, J., dissenting).
38 Rosenberger, 515 U.S. at 849 (O’Connor, J., concurring).
39 Id. (O’Connor, J., concurring).
40 See infra notes 44–92 and accompanying text.
41 See infra notes 93–130 and accompanying text.
42 See infra notes 131–144 and accompanying text.
43 See infra notes 145–157 and accompanying text.
44 See generally Ira C. Lupu, The Trouble with Accommodation, 60 Geo. Wash. L. Rev. 743 (1992); Ira C. Lupu, Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion, 140 U. Pa. L. Rev. 555 (1991).
45 Ira C. Lupu, The Lingering Death of Separationism, 62 Geo. Wash. L. Rev. 230, 230 (1994).
46 See id. at 231, 249. Professor Lupu has adhered to his view of separationism as an anachronism in his more recent scholarship. See generally Ira C. Lupu & Robert Tuttle, Giannella Lecture: The Distinctive Place of Religious Entities in Our Constitutional Order, 47 Vill. L. Rev. 37 (2002); Ira C. Lupu, To Control Faction and Protest Liberty: A General Theory of the Religion Clauses, 7 J. Contemp. Legal Issues 357 (1996).
47 Lupu, supra note 45, at 249.
48 Id. at 250.
49 See generally Stephen G. Gey, Why is Religion Special? Reconsidering the Accommodation of Religion Under Religion Clauses of the First Amendment, 52 U. Pitt. L. Rev. 75 (1990); Suzanna Sherry, Enlightening the Religion Clauses, 7 J. Contemp. Legal Issues 473 (1996); Kathleen M. Sullivan, Exchange; Religious Participation in Public Programs: Religion and Liberal Democracy, 59 U. Chi. L. Rev. 195 (1992).
50 In fairness to Professor Lupu, he sees a continuing, important role for separationism in Establishment Clause jurisprudence. See Lupu, supra note 46, at 370–71 (arguing that the separationist approach should control in the areas of government speech, government-controlled programs such as public schools and disputes over church property and doctrine).
51 See Stephen V. Monsma, Positive Neutrality 68–73 (1993); Carl H. Esbeck, Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause, 13 Notre Dame J.L. Ethics & Pub. Pol’y 285, 289–91 (1999); Esbeck, supra note 1, at 6–20.
52 See Mitchell v. Helms, 530 U.S. 828–29 (2000); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 852–63 (1995) (Thomas, J., concurring); Wallace v. Jaffree, 472 U.S. 38, 91–114 (1985) (Rehnquist, J., dissenting); Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction 8, 11–15, 17 (1982).
53 See McCollum v. Bd. of Educ., 333 U.S. 203, 212 (1948) (Frankfurter, J., concurring).
54 Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947).
55 Everson contains additional statements of the same tenor: “Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.” Id. at 16.
56 Id. at 16 (quoting Reynolds v. United States, 98 U.S. 145, 164 (1890)).
57 Id. at 19 (Jackson, J., dissenting); id. 31–32 (Rutledge, J., dissenting).
58 Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 668 (1970).
59 Id. at 669. “No perfect or absolute separation is really possible.” Id. at 670; accord Lemon v. Kurtzman, 403 U.S. 602, 614 (1971) (noting that the Court’s holdings “do not call for total separation between church and state; total separation is not possible in an absolute sense. . . . [T]he line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”).
60 See Allegheny County v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573 (1989); Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 381, 393 (1985).
61 See Comm. for Pub. Educ. v. Regan, 444 U.S. 646 (1980); Wolman v. Walter, 433 U.S. 229 (1977); Roemer v. Bd. of Pub. Works, 426 U.S. 736 (1976); Tilton v. Richardson, 403 U.S. 672, 679 (1971); Walz, 397 U.S. at 675-76.
62 Lemon, 403 U.S. at 614.
63 See Thomas Jefferson, Jefferson’s Act for Establishing Religious Freedom (1786), in 2 Church and State in American History 73 (John Wilson & Donald L. Drakeman eds., 1987) (“[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors is sinful and tyrannical . . . it tends also to corrupt the principles of that very religion it is meant to encourage.”); James Madison, Memorial and Remonstrance (1785), in 2 Church and State in American History, supra, at 69 (“the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever.”); see also Rosenberger, 515 U.S. at 869–72 (Souter, J., dissenting).
64 Rosenberger, 515 U.S. at 868 (Souter, J., dissenting).
65 See generally Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373 (1981).
66 Madison, supra note 63, at 69.
67 Id. at 68–69.
68 Jefferson, supra note 63, at 73.
69 Letter from Thomas Jefferson to Rev. Samuel Miller (Jan. 23, 1808), in 2 Church and State in American History, supra note 63, at 79.
70 Madison, supra note 63, at 70.
71 Letter from Thomas Jefferson to Rev. Samuel Miller, supra note 69, at 79 (“I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its disciplines, or its doctrines . . . .”).
72 See Kedroff v. Saint Nicholas Cathedral of the Russian Orthodox Church, 344 U.S. 94, 114 (1952); Reynolds, 98 U.S. at 164 (1878); Watson v. Jones, 13 Wall. 679, 728–29 (1871).
73 Kedroff, 344 U.S. at 116.
74 Presbyterian Church in the United States v. Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449, 450 (1969); Kedroff, 344 U.S. at 107, 108.
75 Jones v. Wolf, 443 U.S. 595, 602 (1979); NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 501 (1979); Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976); Blue Hull Mem’l Presbyterian Church, 393 U.S. at 449 (all relying on the First Amendment and non-entanglement).
76 Underlying Unity, supra note 21, at 46. To be sure, in its more recent church dispute cases the Court ruled that, where possible, courts should apply “neutral principles of law” to resolve intra-church controversies. See Jones, 443 U.S. at 602–03. Still, the Court applied the neutral principles approach in a manner that recognized and protected the distinctiveness of religious entities: “the neutral principles [of law] approach . . . promises to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice.” Id.
77 Letter from James Madison to Jasper Adams (1833), in 2 Church and State in American History, supra note 63, at 80.
78 See Gordon S. Wood, The Creation of the American Republic, 1776–1787, at 425–29 (1998).
79 See The Federalist Nos. 10, 51 (James Madison).
80 Madison, supra note 63, at 69, 71.
81 Id. at 70 (“[E]clesiastical establishments, instead of maintaining the purity and efficacy of religion, have had a contrary operation.”); Letter from James Madison to Edward Livingston (Jul. 10, 1822), in James Madison on Religious Liberty 82–83 (Robert S. Alley, ed., 1985) (asserting that “Religion flourishes in greater purity, without than with the aid of [government].”)
82 Wood, supra note 78, at 425–29.
83 See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1410, 1416 (1990).
84 See Lupu, supra note 45, at 250.
85 Brownstein, supra note 21, at 256–67 (“Equality and freedom of speech interests are simply too essential a part of the constitutional framework relating to religion to be dismissed as irrelevant or secondary.”); Lupu, supra note 46, at 360 (discussing “the Religion Clauses’ other animating concerns—to protect religious equality and to control religious factionalism . . . .”); Sullivan, supra note 49, at 197–99.
86 Federalist 51 states this concern most clearly: “In a free government, the security for civil rights must be the same as for religious rights. It consists in one case in the multiplicity of interests, and in the other, in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects.” The Federalist Papers 324 (Rossiter ed., 1961).
87 In a letter to Thomas Jefferson during the fight over ratification of the Constitution, Madison warned that “[i]n our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense or its constituents, but from acts in which the Government is the mere instrumentality of the major number of the constituents.” Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), in The Republic of Letters: The Correspondence Between Thomas Jefferson and James Madison 1776–1826, at 1:564 (James Morton Smith ed., 1995). This statement follows immediately on an extended discussion about the need for a bill of rights to prevent religious tests and establishments. Id.
88 Memorial and Remonstrance, in James Madison on Religious Liberty, supra note 81, at 57.
89 Id. The theme of religious equality as distinct from religious liberty runs throughout the Memorial. See id. at 56 (expressing concern that “the majority may trespass on the rights of the minority”); id. at 58 (declaring that a “just Government” must protect “every Citizen in the enjoyment of his Religion with the same equal hand . . . .”); id. at 59–60 (reaffirming the “‘equal right of every citizen to the free exercise of his Religion according to the dictates of conscience’”).
90 See Federalist Nos. 10, 51 (James Madison).
91 See Lemon, 403 U.S. at 622 (noting that “political division along religious lines was one of the principle evils which the First Amendment was intended to protect.”); Federalist No. 10 (James Madison); Memorial and Remonstrance, supra note 88, at 58–59; see also Marci A. Hamilton, Power, the Establishment Clause, and Vouchers, 31 Conn. L. Rev. 807, 832 (1999); Lupu, supra note 46, at 357.
92 See Memorial and Remonstrance, supra note 88, at 58; see also Detached Memoranda, in James Madison on Religious Liberty, supra note 81, at 90 (describing the constitutional “separation between Religion & Govt” as “[s]trongly guard[ing] . . . [against] the danger of encroachments by Ecclesiastical Bodies”).
93 See Mitchell v. Helms, 530 U.S. 793, 809–10 (2000).
94 Conkle, supra note 21, at 2.
95 See id. See generally Lupu & Tuttle, supra note 46, at 38; McConnell, supra note 83, at 1415.
96 Letter from James Madison to Edward Everett (Mar. 19, 1823), in James Madison on Religious Liberty, supra note 81, at 84.
97 Memorial and Remonstrance, supra note 88, at 56.
98 See City of Boerne v. Flores, 521 U.S. 507, 563 (O’Connor, J., dissenting) (“Foremost, these early leaders accorded religious exercise a special status.”). See generally Edwin S. Gaustad, Faith of Our Fathers: Religion and the New Nation (1987).
99 Thomas J. Curry, The First Freedoms 134–92 (1986); Leonard W. Levy, The Establishment Clause 25–62 (1986).
100 Levy, supra note 99, at 25–62. Although the constitutions of Maryland, South Carolina and Georgia allowed for multiple establishments, none of those states enacted authorizing legislation. Id. at 47. All three states rescinded such authority in later constitutions. The Federal and State Constitutions 800–01, 1702, 3264 (Francis Newton Thorpe ed., 1909).
101 N.H. Const. of 1784, art. VI, reprinted in The Federal and State Constitutions, supra note 100, at 2454.
102 See The Complete Bill of Rights: The Drafts, Debates, Sources and Origins 13–44 (Neil H. Cogan ed., 1997).
103 Del. Const. of 1776, art. 29; Ga. Const. of 1789, art. I, � 18; N.Y. Const. of 1777, art. 39; S.C. Const. of 1778, art. 21.
104 Religious tests: Delaware, Massachusetts, New Jersey, North Carolina, Pennsylvania, South Carolina; Free exercise restrictions on non-Protestants or non-Christians: Maryland, New Hampshire, New Jersey, Pennsylvania, South Carolina; Clergy disqualifications: Delaware, Georgia, New York, South Carolina. The Federal and State Constitutions, supra note 100, passim; Gaustad, supra note 98, at 161–74.
105 McConnell, supra note 83, at 1467–69.
106 Id. at 1461–62.
107 Id. Although disagreement exists over the extent to which the early states exempted religiously motivated conduct from generally applicable laws, see generally Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915 (1992), that debate does not detract from the fact that state constitutions and laws viewed religion and religious entities as distinct from similarly situated conduct and institutions of a secular character.
108 The Debate on the Constitution 1:524 (Bernard Bailyn ed., 1993).
109 See generally Guardians of the Poor v. Greene, 5 Binn. 554 (Pa. 1813).
110 First Methodist Episcopal Church v. City of Atlanta, 76 Ga. 181, 194 (1886).
111 See Nathan Dane, A General Abridgement and Digest of American Law 664–84 (1824); Joseph Story, Commentaries on the Constitution of the United States 698–703 (1833).
112 Thomas Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 580–97 (4th ed. 1878); Christopher G. Tiedeman, A Treatise on the Limitations of Police Power in the United States 156–88 (1886).
113 See McDaniel v. Paty, 435 U.S. 618, 625 (1978) (noting that eleven of the thirteen original states disqualified clergy from various types of public office-holding).
114 See Veto Messages to Congress February 21 & 28, 1811, in James Madison on Religious Liberty, supra note 81, at 79–80.
115 See People ex rel. Roman Catholic Orphan Asylum Soc. v. Bd. of Educ., 13 Barb. 400 (N.Y.S. 1851); Diane Ravitch, The Great School Wars 20–76 (1974).
116 Ray Allen Billington, The Protestant Crusade, 1800–1860, at 1–52 (1938); Vincent P. Lannie, Alienation in America: The Immigrant Catholic and Public Education in Pre-Civil War America, 32 Rev. of Pol. 503–21 (1970).
117 William Oland Bourne, History of the Public School Society of New York 103 (1870); Ravitch, supra note 115, at 20–22. See generally Holy Trinity Church v. United States, 143 U.S. 457 (1892); Steven K. Green, Justice David Josiah Brewer and the ‘Christian Nation’ Maxim, 63 Alb. L. Rev. 427, 427 (1999).
118 See 143 U.S. at 463.
119 See id. at 456–58. The Contract Labor Act of 1885 prohibited the importation of foreigners into the United States under contracts of employment. See Act of 1885, ch. 164, 8 U.S.C. � 141 (repealed 1952).
120 Holy Trinity, 143 U.S. at 463.
121 See Green, supra note 117, at 445–46.
122 See Holy Trinity, 143 U.S. at 465–72.
123 Id.
124 Id. at 470–71.
125 Id.
126 Id. at 470.
127 Holy Trinity, 143 U.S. at 470.
128 Id. at 470–71.
129 See Lee v. Weisman, 505 U.S. 577, 641 (1992) (referring to Holy Trinity as an aberration to the rule prohibiting “government sponsored endorsement of religion.”); Lynch v. Donnelly, 465 U.S. 668, 717–18 (1984) (Brennan, J., dissenting) (referring to Brewer’s declaration as “arrogant[]”); Green, supra note 117, at 427–29.
130 The 1899 case of Bradfield v. Roberts, 175 U.S. 291 (1899), is not to the contrary. There, the Court upheld as against an Establishment Clause challenge a public grant to a Catholic hospital for the construction of a medical ward. Id. at 299, 300. Contrary to first impression, the Court did not base its holding on the theory that the religious hospital could receive the grant under a neutral program made generally available to religious and non-religious entities alike, but rather that the functions and legal character of the hospital were not religious. Id. at 298, 298.
131 See Formal, Substantive, and Disaggregated Neutrality, supra note 21, at 998.
132 See generally Brownstein, supra note 21, at 257–67; Formal, Substantive, and Disaggregated Neutrality, supra note 21, at 995–98.
133 See Larson v. Valente, 456 U.S. 228, 244 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”).
134 U.S. Const. amend. I.
135 See Rust v. Sullivan, 500 U.S. 173, 194 (1991). Compare Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 840 (1995), with Nat’l Endowment for the Arts v. Finely, 524 U.S. 569, 587–88 (1978).
136 Brownstein, supra note 21, at 256–67 (“Equality and freedom of speech interests are simply too essential a part of the constitutional framework relating to religion to be dismissed as irrelevant or secondary.”); Lupu, supra note 46, at 360 (discussing the Religion Clauses’ “other animating concerns—to protect religious equality and to control religious factionalism”); Sullivan, supra note 49, at 197–99.
137 See Esbeck, supra note 1, at 4–5; Underlying Unity, supra note 21, at 45; Formal, Substantive, and Disaggregated Neutrality, supra note 21, at 1001.
138 Esbeck, supra note 1, at 21.
139 Monsma, supra note 51, at 188–89; Esbeck, supra note 1, at 4–5
140 Conkle, supra note 21, at 25. See generally Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).
141 See generally Employment Div. v. Smith, 494 U.S. 872 (1990).
142 Alan E. Brownstein, Constitutional Questions About Charitable Choice, in Welfare Reform and the Role of Faith-Based Organizations 248 (Davis ed., 1999); see also Conkle, supra note 21, at 25.
143 Texas Monthly v. Bullock, 489 U.S. 1, 38–39 (1989)(Scalia, J., dissenting).
144 See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
145 454 U.S. 263 (1981).
146 508 U.S. 384 (1993).
147 515 U.S. 753 (1995).
148 See Capitol Square, 515 U.S. at 777 (O’Connor, J., concurring).
149 In contrast, the neutrality of the access program at issue in Good News Club v. Milford Cent. Sch. should not have been controlling due to the special nature of public elementary schools with greater potential for appearances of official endorsement and subtle coercion of impressionable school children. See 533 U.S. 98, 141–45 (2001) (Souter, J., dissenting).
150 397 U.S. 669 (1970).
151 Texas Monthly v. Bullock, 489 U.S. 1, 14–15 (1989); Walz, 397 U.S. at 673.
152 Walz, 597 U.S. at 674–75.
153 Id. at 675–76.
154 Compare Mueller v. Allen, 463 U.S. 388, 399 (1983), and Bd. of Educ. v. Allen, 392 U.S. 236, 244 (1968) (aid to individuals), with Bowen v. Kendrick, 487 U.S. 589, 621 (1988), and Meek v. Pittenger, 421 U.S. 349, 362–64 (1975) (aid to religious institutions).
155 330 U.S. 1, 16 (1947).
156 For a related discussion, see Lupu & Tuttle, supra note 46, at 82.
157 As Esbeck describes it:
in neutrality theory, it makes no difference whether a provider is ‘pervasively sectarian’ or whether the nature of the direct aid is such that it can be diverted to a religious use. Most importantly, the courts no longer need to ensure that governmental funds are used exclusively for ‘secular, neutral, and nonideological purposes,’ as opposed to worship or religious instruction. Neutrality theory eliminates the need for the judiciary to engage in such alchemy.”
Esbeck, supra note 1, at 37; see also id. at 17 n.68 (“The neutrality principle . . . requires only that the Court examine the outcome of the welfare program with an eye to determining whether the public purpose is being served by the social service provider. If so, then the judicial inquiry is at an end, for the government has received full ‘secular’ value in exchange for taxpayer funds.”).