Government Aid to Religious Institutions (Update 1)

• Author: Jesse H. Choper
• Pages: 1207-1208

Page 1207

A theme of equality has dominated recent Supreme Court decisions in the area of church-state relations. This may be seen most dramatically in the shrunken protection for RELIGIOUS LIBERTY under the Court's peyote ruling in EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON V. SMITH (1990), which held that the free-exercise clause of the FIRST AMENDMENT affords no religious exemption from a neutral law that regulates conduct even though that law imposes a substantial burden on religious practice. Similarly, on the subject of RELIGION IN PUBLIC SCHOOLS, the Court held in BOARD OF EDUCATION OF WEST-SIDE COMMUNITY SCHOOLS V. MERGENS (1990) that the First Amendment's ban on laws respecting an ESTABLISHMENT OF RELIGION permits student religious groups in secondary schools to meet for religious purposes (including prayer) on school premises during noninstructional time as long as other non-curriculum-related student groups are allowed to do so. This theme of neutral treatment of religious and secular groups has been prominent in regard to the subject of governmental aid as well.

It has long been the rule that a government subsidy to religious institutions violates the ESTABLISHMENT CLAUSE when the subsidy's purpose or primary effect is to finance religious (rather than secular) activities. The decision in BOWEN V. KENDRICK (1988) affirmed this proposition and also revealed the present Court's inclination to give a generous interpretation to the term "secular" activities. The case upheld the constitutionality of Congress's granting funds to a variety of public and private agencies (including religious organizations) to provide counseling for prevention of adolescent sexual relations and to promote adoption as an alternative to ABORTION. Whereas this program may be fairly characterized as having a "secular" purpose (even though it coincides with the approach of certain prominent religious groups), there appears to be a substantial danger that the program's primary effect will be to further religious precepts when religiously employed

Page 1208

counselors deal with a subject so closely and inextricably tied to religious doctrine.

Substantial constitutional controversy continues to revolve around government financing of church-related schools that combine the inculcation of religious doctrines with the teaching of secular subjects substantially, although not necessarily entirely, as they are taught in public...