Government messages and government money: Santa Fe, Mitchell v. Helms, and the arc of the Establishment Clause.

• Author: Lupu, Ira C.
• Position: Government-sponsored religious speech

As dramatically evidenced in the year 2000, the Supreme Court is engaged in a profound reshaping of the ground on which issues of religious establishment are fought. To put the matter simply, the emerging trend is away from concern over government transfers of wealth to religious institutions, and toward interdiction of religiously partisan government speech.

Begin with the question of religious messages. Prior to 1980, the Court's only decisions concerning the constitutionality of government-sponsored religious speech involved cases in which citizens were required by law or custom to participate actively. In the early 1960s, the Court decided a highly controversial series of cases involving prayer and Bible-reading in public schools.(1) Some years earlier, the Court decided a pair of cases involving cooperation between religious entities and public officials in the provision of religious instruction to students in the public schools.(2) All of those pre-1980 cases, however, involved legal and practical coercion of schoolchildren to participate in religious practices. It was not until the early 1980s(3) that the Supreme Court entertained a case of government religious speech unaccompanied by such coercion.

By contrast, beginning with Everson v. Board of Education(4) in 1947, the case reports are thick with decisions about the permissibility of the transfer of material government resources to benefit religious causes and institutions. The issue of aid to sectarian schools dominates this line of cases, but more recent controversies have involved the provision of in-kind benefits, such as space in public buildings(5) and the reimbursement of printing costs,(6) to groups and organizations with a religious mission.

Most contemporary Establishment Clause controversies are about government support for religion through money or messages. Indeed, in the 1999-2000 term of the Supreme Court, the two Religion Clause decisions reflected these themes rather perfectly. In Mitchell v. Helms,(7) a splintered majority of the Court upheld a program that provided federal and state government assistance to elementary and secondary schools,(8) and in Santa Fe Independent School District v. Doe,(9) the Court issued a sweeping opinion condemning a school policy that authorized student-led prayer over the public address system at public high school football games.(10) Santa Fe effectively outlawed any official prodding in the direction of student-led prayer at school functions; Mitchell, despite the conspicuous and important disagreement between plurality Justices and concurring Justices, explicitly overruled several Burger-Era precedents on the subject of school aid(11) and potentially opened the door to substantial provision of in-kind benefits by government to all schools, including the most sectarian among them.

What has not been recognized sufficiently, and what this Essay will demonstrate, is that the law has been tending for the past fifteen to twenty years in the direction captured by the decisions at the end of June 2000. Cases like Mitchell are no longer at the center of our constitutional culture wars, and cases like Santa Fe have replaced them. This appraisal of comparative trends, moreover, is not limited to the legal landscape; within the political culture as well, the center of gravity of Establishment Clause controversy has shifted away from issues involving government money and toward issues of government religious messages.(12) To be sure, the fights about school vouchers and sectarian schools remain. The Mitchell split leaves them unresolved for now, but the constitutional issues in that conflict are for most antagonists a secondary struggle to that concerning public finance, education, and the future of public schools.

What remains of the once popular notion of "separation of church and state" has little if anything to do with churches;(13) rather, the remnants of separationism attach most doggedly to questions of state sponsorship of religious messages and themes. Religious entities are in ever-expanding political partnership with the state in the provision of public service.(14) Although important issues of client access and the scope of regulatory monitoring remain in connection with such partnerships, the voices condemning these arrangements per se on classical separationist grounds are diminishing.(15) By contrast, the political and cultural wars over the place of traditional Judeo-Christian values, themes, prayers, and holidays in public life have never been more strident.(16)

This Essay explains, chronicles, and analyzes this inversion of focus on matters of money and message in the law of the Establishment Clause. Part I briefly describes a set of social and political characteristics that prevailed at the time of the framing of the Constitution and Bill of Rights, and explains why material support of churches by government was a foundational concern of those in the late-eighteenth century. Part II sweeps through a series of social and political changes that the succeeding two centuries have brought and connects these changes to dynamic pressures on the law of nonestablishment. Part III attaches legal developments to the historical recitations of Parts I and II and charts with particularity the evolution of corresponding Establishment Clause controversies and norms. Part IV briefly defends the trend revealed in this evolution, and identifies issues on the cutting edge of matters of money and message.(17) The piece concludes that controversies about both government money and government messages will continue with some intensity in the immediate future, but that their respective trajectories have crossed and are unlikely to recross in the foreseeable future.

1. RELIGION AND GOVERNMENT AT THE TIME OF THE FRAMING

   It would not be sensible to rehash the lengthy and complex history of religious disestablisment in the early American states.(18) Instead, a small number of observations that bear upon questions of government money and government messages, respectively, seems appropriate.

   First, in terms of participation in, control of, and influence over government, the late-eighteenth century was clearly a time of Anglo-Saxon Protestant hegemony.(19) To be sure, early America included some Catholics, a small number of Jews, and a substantial number of non-Christian Native Americans and Africans held to slavery;(20) with the exception of Catholics in Maryland, however, these groups exercised little or no political influence. Indeed, the non-Christians among them either barely belonged to the political culture, as in the case of Jews, or were excluded from that culture altogether, as was true of African Americans. Pan-Protestantism did not exclude the possibility of sectarian rivalries within the Protestant tradition, and such conflicts occasionally enflamed the community.(21) Some were essentially theological, and concerned matters of liturgy and paths to salvation. Others more directly concerned government; these included issues of incorporation of churches, control over church lands, authority to ordain ministers, control over administration of sacraments, and, of course, coercive taxation for support of religious institutions.(22)

   What surely was not an issue was the question of the appropriateness of generic theism and Christianity as themes that government officials might propound, formally and otherwise. As Steven Smith argued so persuasively a decade ago,(23) the early years of American culture reflected the predominance of religious thought, consciousness, and discourse.(24) Although the significance of human rationality had been elevated by the Enlightenment, the concept of "the secular," denoting a sphere separate from the influence of religious conviction and ideology, had not yet fully emerged. It is thus quite unsurprising that, in early postcolonial America, even those who might have been most skeptical of what Professor Smith describes as the religious justifications for religious freedom tended to include religious rhetoric in support of arguments for religious freedom or nonestablishment.(25) For example, Madison, in his famous Memorial and Remonstrance, invokes the allegiance of every man to the "Governor of the Universe" and the "Universal Sovereign" as superior to his obligations to the state or "Civil Society."(26) Yet more strikingly, the Virginia "Bill for Religious Freedom,"(27) authored by Thomas Jefferson, begins with a declaration that "Almighty God hath created the mind free"(28) and goes on in its preamble to assert that state interference with religious freedom is a "departure from the plan of the Holy Author of our religion."(29)

   It is unimaginable that any twenty-first-century enactment by government would include such explicitly theological language, and highly likely that any similarly framed enactment, whatever it otherwise contained, would be attacked as an unconstitutional "endorsement" of religion. In the late-eighteenth century, however, such an attack on legal grounds would have been equally unimaginable.

   What the Virginians and others did fight about, and what then became the primary focus in our legacy of nonestablishment, was not government speech. It was government money. More precisely, it was coercive taxation of the populace to raise money that would be redistributed to the benefit of the established Anglican church, or a state-approved set of Christian churches. Coercive taxation of all Virginians to support the Anglican Church ended only after fierce quarrels in the first, postindependence legislative session in 1776.(30) The subsequent tale of the proposed Virginia "Bill Establishing A Provision for Teachers of the Christian Religion,"(31) against which Madison aimed his Memorial and Remonstrance, reveals all of the key elements of controversy. Arising as it did in an era that, compared to our own, involved far more limited government and far greater...