Chapter § 2.4

• Jurisdiction: Oregon

§ 2.4 ARTICLE I, SECTION 5: NO TAXPAYER SUPPORT OF RELIGION

Article I, section 5, of the Oregon Constitution provides that "[n]o money shall be drawn from the Treasury for the benefit of any religeous [sic], or theological institution, nor shall any money be appropriated for the payment of any religeous [sic] services in either house of the Legislative Assembly."

§ 2.4-1 In the 1960s, the Oregon Supreme Court Interpreted Article I, Section 5, Independently of the First Amendment, and Adopted a Strict Separationist View

§ 2.4-1(a) Aid to Parochial Schools

The first significant case involving application of Article I, section 5, of the Oregon Constitution was Dickman v. School District No. 62C, 232 Or 238, 366 P2d 533, cert den sub nom Carlson v. Dickman, 371 US 823 (1962), in which the Oregon Supreme Court held that a public school district's practice of supplying textbooks without charge to pupils in a Roman Catholic school violated Article I, section 5. The court discussed several United States Supreme Court cases under the Establishment Clause of the First Amendment, but it rested its decision on Article I, section 5, stating that when courts are called upon to determine whether particular governmental activity has violated "the constitutional principle of separation of church and state, . . . it is not only within the power of the state courts, it is their duty to decide whether the state constitution has been violated." Dickman, 232 Or at 260-61.

In Dickman, the court concluded that Article I, section 5, established a principle of strict separation between government, on the one hand, and religious activities and institutions, on the other. The court quoted with approval the United States Supreme Court's statement, with reference to the First Amendment, that "[t]he people . . . reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions." Dickman, 232 Or at 246 n 13 (quoting Everson v. Board of Education, 330 US 1, 11, 67 S Ct 504, 91 L Ed 711 (1947) (ellipsis in original)). The court noted that "strict notions of separation [were] in vogue at the time of the adoption of our [Oregon] constitutional provisions," and it rejected the argument that changing public attitudes on the subject should lead to a relaxation of those "strict notions." Dickman, 232 Or at 258-59. The court said that the twin dangers of controversy among religious denominations seeking public funds and of state interference with religious doctrine "convince us that the wall of separation in this state must . . . be kept 'high and impregnable' to meet the demands of Article I, § 5." Dickman, 232 Or at 259. In the case before it, a public school district "expended approximately $4,000 for textbooks" to be used in "a parochial school maintained and operated by the Catholic church." Dickman, 232 Or at 240, 255. This expenditure, the court held, "constitutes a substantial benefit" to the church, and was "of such a character as to bring it within the proscription of Article I, § 5." Dickman, 232 Or at 255.

The Oregon Supreme Court's recognition of its "duty to decide" whether a governmental practice violated Article I, section 5, before reaching any question under the Establishment Clause of the First Amendment meant that a particular practice might be deemed to violate the state constitution but not the federal constitution. Dickman, 232 Or at 260-61. That possibility became a reality six years after Dickman was decided, when the United States Supreme Court held that a New York law requiring public school districts to lend textbooks without charge to students in parochial schools did not violate the Establishment Clause. Board of Education v. Allen, 392 US 236, 238, 88 S Ct 1923, 20 L Ed 2d 1060 (1968). The United States Supreme Court decided the Allen case before it adopted the Lemon test in 1971, see Lemon v. Kurtzman, 403 US 602, 91 S Ct 2105, 29 L Ed 2d 745 (1971) (discussed in § 2.4-2), but that test would apparently have made no difference to the outcome of Allen, since the court applied the Lemon test several years later in upholding Louisiana's practice of allowing federal education funds to go to parochial schools, Mitchell v. Helms, 530 US 793, 120 S Ct 2530, 147 L Ed 2d 660 (2000).

In the only subsequent Oregon appellate decision involving aid to parochial schools, the Oregon Court of Appeals applied Dickman in holding that the use by a public school district of classroom space at a Roman Catholic school to conduct classes for students of the parochial school constituted a "subsidy" of a religious institution that violated Article I, section 5. Fisher v. Clackamas County School District 12, 13 Or App 56, 64-65, 507 P2d 839 (1973), rev den (June 19, 1973).

§ 2.4-1(b) Christian Crosses on Public Property

The strict separatist principle enunciated in Dickman, 232 Or 238 (discussed in § 2.4-1(a)), was expanded in Lowe v. City of Eugene, 254 Or 518, 451 P2d 117, withdrawn, 254 Or 534, 459 P2d 222 (1969), appeal dismissed, 397 US 591, 90 S Ct 1366, 25 L Ed 2d 597 (1970), the first chapter in a long-running dispute over a cross in Skinner's Butte, a municipal park in Eugene. The plaintiffs challenged the placement of the cross in the park on...