Government Aid to Religious Institutions (Update 2)

• Author: Kurt T. Lash
• Pages: 1208-1209

Page 1208

The 1990s witnessed the slow demise of the three-pronged LEMON TEST articulated by the Supreme Court in LEMON V. KURTZMAN (1971) and the ascendancy of the neutrality principle for determining whether government aid to a religious institution violates the ESTABLISHMENT CLAUSE. This doctrinal change has occurred along two fronts, one involving FREEDOM OF SPEECH challenges to government refusals to aid religious expressive activities,

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and the other involving challenges to government programs that benefit religious as well as secular institutions.

In LAMB ' SCHAPELV. CENTER MORICHES UNION FREE SCHOOL DISTRICT (1993), the Court held that public school officials had violated the free speech clause of the FIRST AMENDMENT when they refused to allow a religious group (wanting to show a film) the same access to the school gym granted to secular groups. According to the Court, providing equal access to school facilities after-hours does not amount to government advancement of religion, and therefore there was no compelling justification for this kind of viewpoint discrimination. Extending this rationale to government funding decisions in ROSENBERGER V. RECTORS & VISITORS OF THE UNIVERSITY OF VIRGINIA (1995), the Court held that a public university may not deny a religious group equal access to subsidies for student publications.

In cases decided during the 1990s involving challenges to government aid to religious institutions, the Court has ignored or significantly modified the 1970s-era Lemon test. In Zobrest v. Catalina Foothills School District (1993), the Court ruled that a government-paid sign language interpreter may assist a deaf student attending classes at a Roman Catholic high school. The Court reasoned that because the program provided interpreters to students on a religiously neutral basis, the interpreter's presence in the religious school was the "result of the private decision of individual parents" and "[could] not be attributed to state decision-making." Although the Court in Zobrest did not cite the Lemon test, its holding clearly conflicted with prior decisions under Lemon that had forbidden PUBLIC EMPLOYEES from providing educational services on the grounds of a religious school.

In AGOSTINI V. FELTON (1997), the only modern decision to expressly OVERRULE a Lemon-period PRECEDENT, the Court reversed its earlier holding in AGUILAR V. FELTON (1985) invalidating the use of federal funds to pay for remedial...