Vol. 12 No. 10 (October 2002)

 

CHURCH-STATE RELATIONS IN CRISIS: DEBATING NEUTRALITY by Stephen V. Monsma  (editor).  Lanham, Maryland: Rowman & Littlefield Publishers, 2002.  276 pages.  Cloth  $70.00.   ISBN: 0-7425-1508-7.

 

Reviewed by Prof. Marie Ashe, Suffolk University Law School, Boston, Massachusetts. Email: mashe@suffolk.edu

 

In CHURCH-STATE RELATIONS IN CRISIS: DEBATING NEUTRALITY, Stephen Monsma has compiled a fine set of essays by social scientists, political scientists and law professors, discussing the principle of “neutrality,” whose invocation determined the U.S. Supreme Court’s decision of MITCHELL v. HELMS in 2000.  The “debate” to which the book’s subtitle refers can be seen as a three-way contestation in which the Justices advance competing interpretations of the meaning of the First Amendment Establishment Clause with reference to Federal law permitting the provision to religious schools of Federally-funded materials and equipment, including materials that could be utilized for the teaching of religion.  While the HELMS division shows a plurality of four justices (Thomas, Rehnquist, Scalia and Kennedy) supporting “neutrality theory” over “strict separation,” the opinion includes writing of three justices (Souter, Ginsburg and Stevens) strongly opposing “neutrality theory,” and two (O’Connor and Breyer) who attempt to define a position distinct from – perhaps mediating between – the poles of “neutrality” and “strict separation.”  At the same time, the “debate” designation can characterize the varied and oppositional perspectives of the contributions to the book.  Monsma has structured the book so that two commentaries – one largely supportive and one largely critical --are devoted to each of the three separate opinions of HELMS  – the Thomas plurality opinion, the O’Connor concurring opinion, and the Souter dissent.  These essays are supplemented by two pairs of essays that read HELMS as boding either well or ill for the future of Establishment Clause doctrine and public policy in general.  Monsma himself contributes to the volume a useful introduction and a concluding essay. 

 

Monsma’s book appeared in publication early in 2002, prior to the Supreme Court’s ruling in ZELMAN v. SIMMONS-HARRIS, in which the Court further developed “neutrality theory”— winning a majority of justices invoking the doctrine to uphold the school-voucher scheme through which Ohio made state tax-derived funds available for the payment of tuition to religious schools by the parents of children who had been attending failing public schools in Cleveland.  The ZELMAN development, however, does not in any way diminish the salience of this collection of essays.  Rather, the commentary developed in CHURCH-STATE RELATIONS IN CRISIS facilitates an understanding of ZELMAN itself, and — critically — an informed appreciation of related issues looming ahead, when governmental initiatives supported by the George W. Bush administration will likely demand further consideration of the First Amendment Religion Clauses.  The  Monsma book is most useful in providing a brief history of Establishment Clause doctrine that preceded HELMS;  a clear account of the 1996 Congressional action — the passage of “Charitable Choice” provisions as an element of restructuring the welfare system — that gave rise to the case; and an indication of what can be expected in Constitutional development in the Church-State area.

 

Monsma devotes his ten-page “Introduction” to a straightforward account of the post-World War II rise, and the recent decline, of “strict separation” as the governing legal standard for determination of church-state relations in the United States. He points to the Supreme Court’s invocations of Jefferson and Madison in its first articulation of “strict separation” in 1947 in EVERSON v. BOARD OF EDUCATION, which valorized Jefferson’s “wall” metaphor, characterizing the task of the Court as assuring that the wall “be kept high and impregnable,” and which echoed Madison’s  “Memorial and Remonstrance” concerns in insisting that: “No tax in any amount, large or small, can be levied to support any religious activities or institutions….” 

    

Monsma outlines the consistent invocation of the “strict separation” principle from the late 1960s to the late 1980s, citing the Court’s rulings against state initiatives to provide financial support to sectarian schools; its careful development of distinctions capable of justifying governmental support for religiously-affiliated colleges and universities; its striking down practices of school prayer; its rejection of demands that “creationism” be taught along with evolution in public schools; and its rejection of some displays of religious symbols on public property. “Strictness” began to slide away from Court determinations in the late 1980s, as the Court evinced a readiness to find Constitutionally-permissible a broad variety of religion-related activities that involved receipt of governmental funding or the use of public spaces.  The Court, for example, found permissible all the following: public schools’ provision of space for meetings of religious clubs during non-instructional times; the provision of publicly-funded financial assistance to a blind student who enrolled in a religious seminary; a school district’s provision of a sign language interpreter for a deaf student at a religious school; the erection of a cross by the KKK on the lawn of a state capitol; and New York City’s provision of public school teachers to deliver remedial education on-site to students in private religious schools. 

     

The erosion of “strict separation,” Monsma suggests, is traceable to the expansion of the administrative state and to the turn toward privatization that has occurred during the last two decades.  The beginning of the displacement of “separation” by “neutrality” theory occurred, he observes, with the re-framing of church-state issues that was evident in WIDMAR v. VINCENT in 1981, and that was greatly developed in ROSENBERGER v. RECTOR in 1995.  It was when church-state controversies began to be formulated as raising issues of discrimination—when it was argued, for example, that there was a Constitutional wrong involved in Governmental provision of funding of the speech of student groups in general while denying such funding to religious groups seeking to exercise their freedom of speech—that a strong turn away from “separation” toward “neutrality” occurred.  The privatization, during the last two decades, of many activities that had formerly been performed by government has given rise to requests for governmental funding of “faith-based organizations” to support their delivery of a wide range of social services.  Demands for “evenhanded” funding of religious social service activities—along with funding of non-religious private service deliverers—have become powerfully insistent. It was Federal legislation intended to deliver such “evenhanded” funding to public and private schools that gave rise to the controversy in HELMS.

 

The HELMS case commenced in 1985 when Mary Helms, along with other Louisiana taxpayers, sued the U.S. Department of Education, the Louisiana State Board of Education, and related parties, challenging, as Establishment Clause violations—i.e., as being “law respecting an establishment of religion”—certain provisions of the Education Consolidation and Improvement Act of 1984 contained within its “Chapter 2.” The challenged specifications permitted the provision of Federal funds to state educational agencies (SEAs) which could deliver those funds to local educational agencies (LEAs) by which they could be used for the purchase of educational equipment or materials—including library books, computer hardware and software, audiovisual equipment, and reference materials. The LEAs could then lend the materials and equipment to private (including religious) schools as well as to public schools.  The law specified that the materials provided to the non-public schools should be “secular, neutral, and nonideological,” and that the funding allocated for each recipient school would be determined by reference to the number of students enrolled in that school.   Helms’ claim was successful at the Federal District Court level in 1990 when the District Court found that the Chapter 2 aid had a primary effect of advancing religion by offering “direct aid” to some “pervasively sectarian” schools.  However, in 1997 the District Court reversed its 1990 decision (relying upon the changed interpretation of the Establishment Clause that had evolved through Supreme Court decisions made in the years between 1990 and 1997).   When Helms then appealed to the Fifth Circuit, she was successful, in that the Court of Appeals found the 1997 decision of the District Court to be incorrect and held that Chapter 2 did indeed violate the Establishment Clause.  The government then appealed, and HELMS was ultimately decided by the U.S. Supreme Court in June 2000, fifteen years after its commencement. 

 

Monsma devotes 40 pages of his book to a very well edited version of the HELMS decision, including key elements of each of the three (plurality, concurring, and dissenting) opinions. The plurality opinion, authored by Justice Clarence Thomas (and joined by Justices Rehnquist, Scalia, and Kennedy), comments on the lack of clarity that afflicted Establishment Clause interpretation during the years after EVERSON and cites AGOSTINI v. FELTON (1997) as having remedied that problem.  While AGOSTINI clearly departed from certain precedential holdings, it did continue to assert the doctrine that governmental aid will run afoul of Establishment clause constraints if it is delivered with a non-secular purpose, and it also specified that when aid does have a secular purpose, it will need to be further examined to inquire into the permissibility of its “effects.”  Justice Thomas cites AGOSTINI for having contributed  “revised criteria” to be applied in determining whether a challenged statute has an impermissible “effect.”  Following AGOSTINI, the review of the “effect” of governmental aid to religion will require three inquiries: whether the aid results in “governmental indoctrination;” whether it “defines its recipients by reference to religion;” and whether it “creates an excessive entanglement.”  In HELMS, neither party had asserted to the Supreme Court that Chapter 2 lacked a secular purpose, and neither party had argued that “excessive entanglement” was produced by Chapter 2.  Thus, the plurality restricted its analysis to the questions whether Chapter 2 results in “governmental indoctrination” and whether it “defines its recipients by relation to religion.”  The plurality found that Chapter 2 had neither of these proscribed effects.  Its inquiry into these questions provided occasion for the plurality’s elaboration of the meaning of “neutrality.” 

 

A permissible “neutrality” will be discovered, Justice Thomas writes, when governmental aid is made available without regard to the religion of the recipients.  “If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of government.”  Further, when it is private parental choice that determines the degree to which particular schools will benefit from governmental aid, it becomes clearer that there is no governmental indoctrination. In other words, if the receipt of government aid by private schools actually depends upon private parental choices to enroll children in those schools, whatever indoctrination is delivered can be seen as the product of parental choice rather than of governmental action.  The Chapter 2 program is “neutral” in its distribution of aid on a “per student” basis, with the amount of aid going to a school being determined by the number of students enrolled in the school.  This method of delivery assures that Chapter 2 does not, by reducing the private cost of such schooling, create “incentives” for parents to choose private education for their children. 

 

The existence of Chapter 2 restrictions limiting materials and equipment to those that are “secular, neutral and nonideological” further supports the finding of neutrality.  It does not matter that the materials and equipment may be “divertible” (or, indeed, that some were in fact diverted) for use in specifically religious teaching.  The Establishment Clause does not require a “no divertibility” rule – whatever earlier cases may have suggested to the contrary.  It will suffice that the aid provided did not itself contain “impermissible content.”  The plurality notes that “we did not…think that the use of governmental aid to further religious indoctrination was synonymous with religious indoctrination BY the government or that such use of aid created any improper incentives.”

 

In a departure from the mono-tonality of most of its opinion, the plurality speaks heatedly when Justice Thomas characterizes as “bizarre” the dissent’s “special hostility” toward “pervasively sectarian” schools.  Insistently, Justice Thomas reproves the dissenters for having even considered the issue of whether schools are “pervasively sectarian” as relevant to their suitability as recipients of governmental aid.  The hostility toward “pervasively sectarian” schools derives, Justice Thomas writes, from a “shameful pedigree that we [the plurality] do not hesitate to disavow”—that pedigree being Congress’ consideration, in 1870, of the proposed “Blaine Amendment” to the Constitution—which had intended to bar any governmental aid to any “sectarian” institution. He notes that the Blaine Amendment was introduced during a period of strong animus against Catholics, when “it was an open secret that ‘sectarian’ was code for ‘Catholic.’”  The doctrine that “pervasively sectarian” schools should be excluded from governmental aid was “born of bigotry” and “should be buried now.”  The rhetoric of this portion of the Thomas opinion strongly implies that the dissenters are afflicted with a Blaine-type bigotry evidenced in their present concern about “pervasive sectarianism.”

 

In her separate concurrence (in which Justice Breyer joins), Justice O’Connor demurs from the plurality’s elevation of “neutrality,” which, she notes, “comes close to assigning that factor singular importance in future adjudication of Establishment Clause challenges to governmental school aid programs.”  While concurring with the plurality in finding the Chapter 2 aid permissible, Justice O’Connor makes her analysis on the basis of a reading and application of the AGOSTINI criteria different from that of the plurality.   O’Connor is unwilling to regard the Chapter 2 per-capita allocation scheme as being “the same as true private-choice programs” that have been considered in earlier cases, seeing the per-capita provision by itself as not fully undoing the suggestion of governmental endorsement of religion. (Here Justice O’Connor manifests her continuing commitment to inquiring into the appearance of “endorsement” by government, which she has developed, in the years since  LYNCH v. DONNELLY,  as perhaps the most telling indicator of unconstitutional establishment.)  She also differs from the plurality in rejecting its conclusion that actual diversion of aid to support religious teaching does not constitute an Establishment violation.  Ultimately, Justice O’Connor’s concurrence in HELMS relies heavily upon her determination that the “program safeguards” established by Chapter 2 are constitutionally adequate as assurances that actual diversion will not flourish and her belief that any actual diversion that may have occurred was de minimis.

 

Justice Souter (joined by Justices Stevens and Ginsburg) emphasizes in dissent that the plurality, in its focus on neutrality, in reality “espouses a new conception of neutrality as a practically sufficient test of constitutionality that would, if adopted by the Court, eliminate enquiry into a law’s effects.”  Insisting that this position “breaks fundamentally with Establishment Clause principle and with the methodology painstakingly worked out in support of it,” Justice Souter offers his own history of the evolution of the use of the term “neutrality” in Establishment Clause jurisprudence.   In EVERSON, in which a rather strict “no aid” principle was expressed, the Court attempted to draw a line between “universal general service” and “subsidizing or favoritism.”  The Court did this by adopting the principle that government must “be a neutral in its relations with groups of religious believers and non-believers.”  The difficulty of locating governmental support on one or the other side of the line dividing acceptable general support from impermissible aid was evident in the divided opinion in EVERSON itself, as well as in later cases, in all of which it became clear that “neutrality” was not, and could not be, captured by a single test—an “evenhandedness test,” for example—that could determine whether establishment had occurred.  Rather, the inquiry into “neutrality” demanded a method of probing into such factors as the “true intent inferable behind the law, the feasibility of distinguishing in fact between religious and secular teaching in church schools, and the reality or sham of lending books to pupils instead of supplying books to schools.”   Souter’s dissent cites approvingly Justice Harlan’s concurring comment in BOARD OF EDUCATION  v. ALLEN, decided in 1968, that “neutrality is…a coat of many colors,” and Justice Goldberg’s insistence that there exists “no single and clear measure…by which this or any [religious school aid] case may readily be decided.”

 

The evolution of the “neutrality” notion from EVERSON to the plurality’s formulation in HELMS, Justice Souter argues, occurred through three stages.  In the first, expressed in EVERSON and twenty years later in ALLEN, the term was used to characterize the median position that government was required by the Establishment Clause to occupy between religion and non-religion.  Thus, it was a term used “to describe the requisite state of government equipoise between the forbidden encouragement and discouragement of religion.”  In LEMON v. KURTZMAN (1971), the Court utilized the term in a different sense, largely equating the meanings of “neutral” and “secular.”  Thus, in LEMON, the term “neutral” was used to describe a benefit that was non-religious.  In the 1980s, the Court began to use the term “neutrality” in a third way, to designate “evenhandedness” in distribution of government aid, with the usage first emerging in ROEMER’s proposition that “Religious institutions need not be quarantined from public benefits that are neutrally available to all.”  While this third meaning of “neutrality”—“evenhandedness”—is not irrelevant in Establishment Clauses analyses, the Souter opinion sums up, it “is not alone sufficient to qualify aid as constitutional.  It is to be considered only along with other characteristics of aid, its administration, its recipients, or its potential that have been emphasized over the years as indicators of just how religious the intent and effect of a given aid scheme really is.  Thus, the basic principle of establishment scrutiny of aid remains the principle as stated in EVERSON, that there may be no public aid to religion or support for the religious mission of any institution.”

 

Souter concludes his dissent with observations on “the plurality’s choice to employ imputations of bigotry and irreligion as terms in the Court’s debate….”   Here he is responding to the plurality’s characterization of the dissent as having expressed a “hostility toward religion” akin to that manifested by supporters of the Blaine Amendment.  That rhetorical move by the plurality, Souter suggests, “makes one point clear: that in rejecting the principle of no aid to a school’s religious mission the plurality is attacking the most fundamental assumption underlying the Establishment Clause, that government can in fact operate with neutrality in its relation to religion.” It is because he himself believes in that possibility, Justice Souter concludes, that he must “respectfully dissent.”

 

Monsma’s selections from HELMS very effectively capture both the intricacy of the Court’s doctrinal considerations and the strikingly charged rhetoric of deep dividedness: the accusatory tones of Justice Thomas; and Justice Souter’s constrained but firmly indignant resistance.  Monsma’s own commitment to a kind of “neutrality” is evident in his attempt to “balance” the opinions expressed in the essays commenting on HELMS. This effort contributes to a real value of the book as offering a representative sampling of responses to the Court’s turn in HELMS.  The downside of Mosma’s commitment to inclusiveness, however, is that the essays included seem to be of very mixed quality.   While they are all of interest in expressing a variety of perspectives, some are powerful and fresh statements; while others seem quite predictable.

 

The discussion of the Thomas opinion by Frank Guliuzza III, seems not entirely adequate in advocating a “true neutrality” without ever interrogating either element of that notion, and in unquestioningly advocating “harmony” as a transparent and important value in jurisprudence.  Guluizza also disappointingly relies on verbal play that has been tired and trite for a very long while (e.g., “If there was ever a court case that was aptly named, it was LEMON.”).  Derek Davis, more interestingly, focuses on the real political implications of HELMS, arguing that in spite of the fact that HELMS may seem to offer a “religious booster shot,” it is likely to have the effect of undermining religious vitality. Davis predicts that HELMS’ “neutrality” principle will, in its operation, prefer mainstream over non-mainstream religious groups and that it will breed conflicts among religious groups.

 

The O’Connor opinion is assessed in a pair of essays by Gregory Hamilton and Julia Stronks.  Hamilton offers a history of Justice O’Connor’s contributions to Religion Clause doctrine, with a clear and coherent exposition of the evolution of her “endorsement” test. Julia Stronks echoes Hamilton in a largely positive assessment of Justice O’Connor’s work, pointing to her flexibility and her capacity for coalitional alliance, her bridge-building capability and commitment.  Stronks goes on, however, to identify and explore what she sees as a critical weakness of logic in O’Connor’s Free Exercise theory—namely, that while O’Connor evidences a readiness to require compelling interest to justify governmental burdening of religious activity, she evidences no comparable readiness to require compelling interest to justify regulation of activity that stems from “worldview belief.”   Stronks, importantly, identifies a weakness not exclusive to Justice O’Connor—involving the challenge of giving definition to the meaning of “religion.” Stronks both invites and demonstrates a method of recourse to commentary on religion—from philosophical or, perhaps “religious studies” perspectives—that problematizes notions too casually handled by members of the Court and by observer-commentators. In this regard, Stronks focuses particularly on a book by Roy Clouser which is titled (with irresistible appropriateness for the occasion) THE MYTH OF RELIGIOUS NEUTRALITY.

 

In commentary on the Souter dissent, Kevin Hasson and Roman Storzer characterize its contribution as “a failed argument.”  Hasson and Storzer’s criticism of the Souter writing may have value in evidencing how it will be received as unpersuasive by some readers.  However their particular concentration on developing the accusations of “hostility” that Justice Thomas raised in the plurality opinion, are, for me, disappointing. That focus seems, to me, clearly intended to trigger or to cultivate feelings of resentment in Catholic readers and in members of other religious groups inclined to imagine that they are present-day targets of governmental “hostility.”  It will necessarily strike many readers—including, probably, even some who happen to have passed through “pervasively sectarian” educational experiences—that the fixation on the experiences of Catholics in the United States in the late nineteenth century can seem irrelevant—and almost paranoid—at the beginning of the twenty-first century. Hasson and Storzer’s writing is, in places, marked by a saddening kind of gloating (e.g., “…Justice Souter’s dissent represents the anti-aiders final, futile salvo….”) that expresses no commitment to a project of respectful dialogue about difficult issues.

 

A contrasting – sympathetic but powerfully critical –assessment of the Souter dissent is offered by Alan Brownstein, who succinctly characterizes it as “correct but inadequate.”  Brownstein’s essay seems to me among the most interesting in the collection, in its combination of straightforwardness and imagination. Appreciative of what he sees as the realism and honesty of Souter’s dissent, Brownstein discovers a weakness in its failure to explain the “importance of [the] core constitutional axioms” which it values and on which it relies.  Brownstein criticizes Souter’s failure to consider “the possibility that the traditional model he endorses may need to be reevaluated.”  Essentially, Brownstein wants to see “new and more coherent explorations” justifying separationism, as the old justifications seem to have lost persuasive force.  Brownstein’s essay thus undertakes an original and vigorous variation on—or reformulation of—Souter’s writing, to articulate a stronger defense of separationism.  The writing here is pragmatic, rich and imaginative.  It is also deeply moving.  He notes: “I join in Souter’s dissent because I want my children to live in a different world than that which may be promised by the plurality’s vision.”  (Wanting my children, also, to occupy that different world, I’ve decided that the Brownstein essay must become a “must-read” for my students.)

 

The remaining essays in Monsma’s book, including his own “Concluding Observations” are all worth reading.  They include Fred Gedicks’ positive assessment of the “neutrality” principle; Clarke Cochran’s proposal that “neutrality” is a good standard for “establishment” determinations but a bad one for “free exercise” determination (and his frank acknowledgment that this proposition seems to be asking for “special treatment for religion under the free exercise clause, but equivalent treatment with secular groups under the establishment clause”); and Gregg Ivers’ brave, sticking-his-neck-out, pre-ZELMAN prediction that “[b]y no stretch of the imagination did vouchers and charitable choice get the constitutional green light” in HELMS.  Among the closing essays, I found most affecting the brief, deeply serious—and deeply pained—contribution of Erwin Chemerinsky, reading Justice Thomas’ “neutrality” approach as, ultimately, – “so frightening.” 

 

Stephen Monsma has put together an important, substantial and accessible book.  I hope very much that it will appear in paperback and that it will be widely read, in this present time of crisis and change, by students (including some undergraduates) as well as by the full range of Court observers and others deeply concerned about the future of the church-state relationship in the United States.

 

 

REFERENCES:

 

Clouser, Roy.  1992.  THE MYTH OF RELIGIOUS NEUTRALITY. Notre Dame, IN: University of Notre Dame Press.

 

CASE REFERENCES:

 

AGOSTINI v. FELTON, 521 U.S. 203 (1997).

 

BOARD OF EDUCATION v. ALLEN, 392 U.S. 236 (1968).

 

EVERSON v. BD. OF EDUCATION OF EWING TOWNSHIP, 330 U.S. 1 (1947).

 

LEMON v. KURTZMAN, 403 U.S. 602 (1971).

 

LYNCH v. DONNELLY, 465 U.S. 668 (1984).

 

MITCHELL v. HELMS, 530 U.S 793 (2000).

 

ROEMER v. BD. OF PUBLIC WORKS OF MARYLAND, 426 U.S. 736 (1976).

 

ROSENBERGER v. RECTOR AND VISITORS OF UNIVERSITY OF VIRGINIA, 515 U.S. 819 (1995)

 

WIDMAR v. VINCENT, 454 U.S. 263 (1981).

 

ZELMAN v. SIMMONS-HARRIS, 122 S. Ct. 2460 (2002).

                                                                       

 

  

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Copyright 2002 by the author, Marie Ashe.