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

• Jurisdiction: Oregon

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

Article I, section 5, provides: "No 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 The Supreme Court Does Not Interpret Article I, Section 5, Independently of the First Amendment

As noted in § 2.2-1, the Oregon Supreme Court, in its early cases interpreting Article I, sections 2 and 3, of the Oregon Constitution, relied entirely on United States Supreme Court interpretations of the Free Exercise Clause of the First Amendment of the United States Constitution. In later cases, the court abandoned that approach and adopted the practice of interpreting those sections independently of the federal clause. In interpreting Article I, section 5, the court made a similar move, but in reverse.

The first significant case involving application of Article I, section 5, was Dickman v. Sch. Dist. No. 62C, Oregon City, Clackamas County, 232 Or 238, 366 P2d 533 (1961), involving a challenge to a public school district's practice of supplying textbooks without charge to pupils in a Roman Catholic school. 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 a 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.

Fifteen years later, the court did an about-face. In Eugene Sand & Gravel, Inc. v. City of Eugene, 276 Or 1007, 558 P2d 338 (1976), the court held that the presence of a large cross on Skinner's Butte, a municipal park in Eugene, did not violate either Article I, section 5, or the Establishment Clause of the First Amendment. In reaching that conclusion, the court abandoned an independent approach in interpreting Article I, section 5, and instead adopted the United States Supreme Court's three-part test for determining whether a law violates the Establishment Clause. That federal test is usually known as the Lemon test, after the case in which it first appeared, Lemon v. Kurtzman, 403 US 602, 91 S Ct 2125, 29 L Ed2d 745 (1971). The Oregon Supreme Court in Eugene Sand & Gravel stated the Lemon test as follows: "(1) the law must 'reflect a clearly secular legislative purpose'; (2) it must 'have a primary effect that neither advances nor inhibits religion' (as distinguished from an 'incidental' effect); and (3) it must 'avoid excessive governmental entanglement with religion.'" Eugene Sand & Gravel, Inc., 276 Or at 1012-13 (quoting Committee for Public Ed. and Religious Liberty v. Nyquist, 413 US 756, 773, 93 S Ct 2955, 37 L Ed2d 948 (1973)). Although the defenders of the cross briefed the state and federal constitutional issues separately, and did not ask the Oregon Supreme Court to apply the federal test to Article I, section 5, the court adopted the Lemon test as a matter of state constitutional law: "We hold that this same test is also appropriate for application in determining whether a law is constitutional under similar provisions of the Oregon Constitution." Eugene Sand & Gravel, Inc., 276 Or at 1013. The court then analyzed the case solely in terms of federal Establishment Clause jurisprudence, saying no more about the Oregon Constitution.

In Powell v. Bunn, 185 Or App 334, 357, 59 P3d 559 (2002), the court of appeals noted that "in the years since the court decided Eugene Sand & Gravel, the Oregon Supreme Court has adopted an independent approach to state constitutional analysis," but held that because "the Supreme Court has never overruled Eugene Sand & Gravel . . . that case remains binding on this court." The plaintiffs in Powell petitioned the Oregon Supreme Court to review that decision, and asked the court to overrule the holding in Eugene Sand & Gravel that Article I, section 5, must be interpreted by applying the Lemon test. The supreme court denied the petition, Powell v. Bunn, 336 Or 60, 77 P3d 635 (2003), and the Lemon test remains the governing test for interpreting Article I, section 5.

COMMENT: The court's adoption of the federal Lemon test in Eugene Sand & Gravel came shortly before the court abandoned its historic pattern of deference to federal constitutional modes of analysis in interpreting the Oregon Constitution. See, e.g., State v. Caraher, 293 Or 741, 653 P2d 942 (1982); Hewitt v. SAIF, 294 Or 33, 653 P2d 970 (1

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