Table of Contents Introduction I. Historical Antecedents of Establishment Clause Doctrine A. The Jeffersonian and Madisonian Tradition of Religious Disestablishment B. America's Historic Trajectory of Church-State Disenfranchisement II. The Establishment Clause and Public Support for Education A. The Evolution of Separation Doctrine in the Supreme Court B. The Weakening of Establishment Doctrine in More Recent Decisions 1. Parental choice and nonendorsement approaches to public funds for religious education 2. The modern Court's growing assent to religious school funding 3. Praying at a public-school event III. Judicial Preferences or Constitutional Mandates IV. Bridging the Gap Between the Religion Clauses Conclusion
Introduction
The First Amendment perspicuously prevents the government from interfering with or involving itself in personal worship. The Supreme Court has long recognized that the framers of the Religion Clauses understood establishment of religion to include state "sponsorship, financial support, and active involvement ... in religious activity." (1) Increasingly, however, the Roberts Court has found states' policies restricting religious schools from obtaining public funding to be unconstitutional. Doctrinal developments constrain the ability of states to exercise judgments about how to avoid entanglement with religious practices. The Court now requires state authorities to help offset the tuition of students who attend both private religious and private secular schools, at least in rural areas where public school alternatives are unavailable. (2) Additionally, a majority of Justices regard prayers led by a coach, while surrounded by students at the end of public-school athletic events, to be protected by free exercise of religion and free speech. (3)
To bolster their departure from precedent, the Justices have painted a veneer of traditional meaning on the weakened edifice of the Establishment Clause. In place of a rampart against coercion and indoctrination, the Court has skewed the line between public officials' secular and religious conduct. The Justices have dodged the complex policy concerns at play when Establishment Clause values conflict with religious choices, providing little "meaningful guidance" to lower court judges who must "decide cases ... on a day-by-day basis." (4) Rather than adopting the "flexibility" needed for states to "navigate the tension between the two Religion Clauses," (5) the Court selectively favored free exercise arguments without adequately weighing them against states' antiestablishment objectives.
This Essay critiques the judicial trend toward rigidly emphasizing free exercise values and downplaying antiestablishment concerns. In the education context, a formalistic method of interpretation omits contextual analysis--of how state funding of religious schools impacts resources available to public schools, affects the choices of students and parents who are opposed to religious tenets, and reflects on government neutrality. Verbal formalism obfuscates the assessment of complimentary policies that separate the spheres of private worship from public education.
I argue, to the contrary, that proportionality analysis is required of courts to bridge the constitutional values of the Establishment and Free Exercise Clauses. The constitutional injunction against religious establishment is meant to advance tolerance, individual liberty, institutional integrity, and division between civic education and religious teaching. Balanced interpretation of the Religion Clauses safeguards religious convictions and practices from government interference. Such an approach to interpretation charts a narrow course between the two, avoiding the clash that would ensue were either of their "absolute terms ... expanded to a logical extreme." (6) Their inherent tensions require contextual judicial assessments. But the Court currently tends to cite the relevance of strict scrutiny without adequately parsing its elements of compelling interest and narrow tailoring.
The first Part of this Essay explores historical antecedents to modern Establishment Clause doctrine: early American efforts to bar governmental support for religious institutions. The second Part recites Supreme Court precedents addressing ritualistic conduct in public schools and tax funded tuition to offset the tuition costs of religious education. The third Part demonstrates how recent decisions increasingly countenance greater government involvement in religious life by emphasizing free exercise claims at the expense of antiestablishment doctrine. The fourth Part reflects on the extent to which recent precedents upend doctrine and water down constitutional text.
I. Historical Antecedents of Establishment Clause Doctrine
The Court's latest decision addressing religious freedoms at schools, Kennedy v. Bremerton School District, asserted that interpretation of the Religion Clauses must "focus[] on original meaning and history." (7) Yet the majority scarcely developed its interpretive method in the context of K-12 education. Earlier Supreme Court holdings had--with varying degrees of success--expounded historically significant information about the founding generation's understandings. (8) The limiting statement in Kennedy, however, did not constrain the majority to the founders' commitment to separation between civil and religious functions. (9)
A. The Jeffersonian and Madisonian Tradition of Religious Disestablishment
Jeffersonian and Madisonian principles of religious separation and religious liberty dominated Supreme Court understandings starting from the late-nineteenth century and evolved throughout most of the twentieth. The Roberts Court, however, has been steadily moving away from the separation metaphor. (10)
Jefferson's perspective is particularly informative of early American thought. In 1779, he foresightedly advocated for a bill to provide public education. (11) His Notes on the State of Virginia articulated his view that schools should "teach[] all children of the state reading, writing,... common arithmetic," and other secular subjects. (12) Madison demonstrated support for Jefferson's position through his speech against religious assessments and advocacy for the public-school bill. (13)
While Jefferson and Madison wrote about founding-era Virginia politics, their separation principle remains jurisprudentially relevant. Justice Brennan explained that Virginia's "efforts to separate church and state provided the direct antecedents of the First Amendment." (14) Andrew Koppelman contends that Madison's thoughts about the separation of church and state are "the most useful source[s] of anti-establishment thinking." (15) Other authors assert that, as a statement of original meaning, Madison's Memorial and Remonstrance Against Religious Assessments is an "enduring contribution" that is "probably the fullest and most thoughtful exposition of the disestablishmentarian thinking at the time of the founding." (16)
Ratification of the Religion Clauses of the First Amendment in 1791 followed on the coattails of Virginia's passage of the Act for Establishing Religious Freedom of 1786. (17) The law had originally been drafted by Jefferson in 1777 with a natural rights component, a mode of thinking also present in the Declaration of Independence. (18) Jefferson's underlying premise was that people's opinions fare best without the purview of civil government. (19) To require anyone to contribute money to disseminate views that "he disbelieves and abhors, is sinful and tyrannical." (20) Even forcing a person "to support this or that teacher of his own religious persuasion" impinges on the liberty of a person to select the recipient of his religious, charitable contribution. (21)
Almost a decade later, Madison convinced the Virginia legislature to adopt the statute and its ideal of church-state separation. (22) Madison's pamphlet on the subject, the Memorial and Remonstrance, (23) informed the law's antiestablishment principle. (24) His tract opposed the payment of public tithes to religious institutions, even when the taxes favored no particular Christian denomination. (25)
Both the Act for Establishing Religious Freedom and the Memorial and Remonstrance reflected the values that led the young nation in 1791 to adopt the Religion Clauses into the Bill of Rights. (26) Justice Powell asserted that "Madison's Memorial and Remonstrance [is] recognized today as one of the cornerstones of the First Amendment's guarantee of government neutrality toward religion." (27)
Decades after ratification of the First Amendment, Madison returned to the subject in a letter. He acknowledged that while it "may not be easy" to "separat[e] ... the rights of religion and the Civil authority," the disjunction between them is necessary to "avoid collisions [and] doubts on unessential points" and to prevent factions from usurping other citizens' essential interests. (28)
As President, Jefferson adhered to a balanced and pluralistic understanding of the Religion Clause. On the free exercise side of the ledger, he wrote to the Danbury Baptist Association that "religion is a matter which lies solely between man and his God." (29) On the Establishment Clause side "a wall of separation between church and State" restrains the "legislative powers of government" from encroaching upon the religious ideas "of the whole American people." (30)
The constitutional meaning of Jefferson's views on the Religion Clauses drew from an even older tradition of separation. In the mid-seventeenth century, Roger Williams, a devout minister who was the founder of Providence Plantation (now Rhode Island), contended that separation between church and state was necessary to prevent governmental intrusion into sacral matters. (31) Separation between them, he proclaimed, protected religious autonomy. (32) This view, however, did not reflect the reality in other...
