Government Aid to Religious Institutions

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GOVERNMENT AID TO RELIGIOUS INSTITUTIONS

Constitutionality of governmental aid to religious institutions, generally, though not exclusively, in the form of financial subsidies, is most often challenged under the first amendment's ban on laws respecting an establishment of religion. When the purpose of the subsidy is to finance obviously religious activities, such as the erection or repairing of a church building, unconstitutionality is generally recognized. In large measure the purpose of the establishment clause was to forbid such grants, as is indicated by the Court's opinion and Justice wiley rutledge's dissenting opinion in everson v. board of education (1947). On the other hand, where the funds are used for what would generally be considered secular activities, such as maintaining hospitals or providing meals for pupils in church-related (often called parochial) schools, constitutional validity is fairly unanimously assumed.

Constitutional controversy revolves largely around governmental financing of church-related schools that combine the inculcation of religious doctrines and beliefs with what is generally considered the teaching of secular subjects, substantially, though not necessarily entirely, as they are taught in public schools.

In Everson, the Court upheld as a valid exercise of the police power a state statute financing bus transportation to parochial schools, on the ground that the legislative purpose was not to aid religion by financing the operations of the schools but to help insure the safety of children going to or returning from them. A law having the former purpose would violate the establishment clause, which forbids government to set up a church, aid one or more religions, or prefer one religion over others. "No tax in any amount, large or small," the Court said, "can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."

The Everson, or "no-aid," interpretation of the establishment clause as applied to governmental financing of religious schools next reached the Supreme Court in the case of board of education v. allen (1968). There the Court upheld a New York statute providing for the loan to pupils attending nonpublic schools of secular textbooks authorized for use in public schools. The Court concluded that the statute did not impermissibly aid religious schools within the meaning of Everson, nor did it violate the establishment clause ban on laws lacking a secular legislative purpose or having a primary effect that either advances or inhibits religion, as that clause had been interpreted in abington school district v. schempp (1963). In upholding the New York law, the Court recognized that the police power rationale of Everson was not readily applicable to textbook laws, but it adjudged that the processes of secular and religious training are not so intertwined that secular textbooks furnished to students by the public are in fact instrumental in the teaching of religion.

It is fairly obvious that the Allen rationale could be used to justify state aid to religious schools considerably more extensive than mere financing of transportation or provision of secular textbooks. It could, for example, justify state financing of supplies other than textbooks, costs of maintenance and repair of parochial school premises, and, most important, salaries of instructors who teach the nonreligious subjects, which constitute the major part of the parochial school curriculum.

That this extension was intended by Justice byron r. white, the author of the Allen opinion, is indicated by the fact that he thereafter dissented in all the decisions barring aid to church-related schools. The first of these decisions came in the companion cases of lemon v. kurtzman and Earley v. DiCenso (1973). In Lemon, Pennsylvania purchased the services of religious schools in providing secular education to their pupils. In DiCenso, Rhode Island paid fifteen percent of the salaries of religious school teachers who taught only secular subjects.

A year earlier, in walz v. tax commission (1970), the Court had expanded the purpose-effect test by adding a third dimension: a statute violated the establishment clause if it fostered excessive governmental entanglement with religion. The statutes involved in Lemon and DiCenso violated the clause, the Court held, because in order to insure that the teachers did not inject religion into their secular classes or allow religious values to affect the content of secular instruction, it was necessary to subject the teachers to comprehensive, discriminating, and continuing state surveillance, which would constitute forbidden entanglement of church and state.

In other cases the Court held unconstitutional laws enacted to reimburse religious schools for the cost of preparing, conducting, and grading teacher-prepared tests, of maintaining and repairing school buildings, of transporting students on field trips to museums and concerts as part of secular courses, and of purchasing instructional materials and equipment susceptible of diversion to religious use. The Court also held unconstitutional state tuition assistance to the parents of parochial school pupils, whether by direct grant or through state income tax benefits.

On the other hand, the Court has upheld the constitutionality of reimbursement for noninstructional health and welfare services supplied to parochial school pupils, such as meals, medical and dental care, and diagnostic services relating to speech, hearing, and psychological problems. In committee for public education and religious liberty v. regan (1980) the Court allowed reimbursement for the expense of administering state-prepared and mandated objective examinations.

The Court has manifested a considerably more tolerant approach in cases challenging governmental aid to church-related institutions of higher education. While the purpose-effect-entanglement test is in principle equally applicable, the Court held that where a grant is used to finance facilities in colleges and universities used only for secular instruction, the primary effect of the law is not to advance religion. As for entanglement, religion does not necessarily so permeate the secular education provided by church-related colleges nor so seep into the use of their facilities as to require a ruling that in all cases excessive surveillance would be necessary to assure that the facilities were not used for religious purposes. The Court also gave consideration to the skepticism of college students, the nature of college and postgraduate courses, the high degree of academic freedom characterizing many church-related colleges, and their nonlocal constituencies. For all these reasons, in tilton v. richardson (1973) the Court sanctioned substantial governmental financing of church-related institutions of higher education.

In Walz v. Tax Commission the Court upheld the constitutionality of tax exemption accorded to property used exclusively for worship or other religious purposes. Exemption, it held, does not entail sponsorship of religion and involves even less entanglement than nonexemption, since it does not require the government to examine the affairs of the church and audit its books or records. The longevity of exemption, dating as it does from the time the Republic was founded, constitutes strong evidence of its constitutionality.

The Court, in Walz, did not hold that the free exercise clause would be violated if exemption were disallowed (although it was urged to do so in the amicus curiae brief submitted by the National Council of Churches). Nor, on the other hand, did it decide to the contrary. As of the present, therefore, it seems that governments, federal or state, have the constitutional option of granting or denying exemption.

Leo Pfeffer
(1986)