Pounding a final stake in the heart of the invidiously discriminatory 'pervasively sectarian' test.

• Author: Davids, James A.
• Position: P. 59-93

INTRODUCTION

An inquiry into an organization's religious views to determine if it is "pervasively sectarian is not only unnecessary but also offensive." It is well established, in numerous other contexts, that courts should refrain from trolling through a person's or institution's religious beliefs. (1)

~ Judge Benton

Judge Benton's scolding in Americans United for Separation of Church & State v. Prison Fellowship Ministries, one of the highest profile Establishment Clause cases of the decade, was the direct result of the district court's deliberate (actually painstaking) dissection of the beliefs, philosophy, and practices of perhaps the world's most effective provider of rehabilitation services to prisoners. (2) Indeed, through seven pages of an almost eighty-page opinion, the district court trolled through Prison Fellowship Ministries' mission statement, the Statement of Faith which all Prison Fellowship Ministries employees must sign, Prison Fellowship Ministries' nature as an "Evangelical Christian" para-church organization, and the characteristics of "Evangelical Christianity." (3) Although claiming to make "absolutely no value judgment" about Prison Fellowship Ministries' beliefs, Chief Judge Pratt thought these beliefs material to his First Amendment analysis, particularly to determine whether the State of Iowa "impermissibly sanctioned the evangelization of the inmates in its care into a particular form of the Christian faith" (4) which was at odds with other Christian faiths. (5) According to Chief Judge Pratt, Evangelical Christianity (of which he concluded Prison Fellowship Ministries is a part) is

suspicious, if not contemptuous, of Roman Catholic reliance on papal authority, Marian devotion, and the veneration of saints. The Prison Fellowship Ministries ... belief in the substitutionary and atoning death of Jesus, which reflects a legalistic understanding of the sacrifice of Jesus, likewise, is not shared by many Christians. The Prison Fellowship Ministries ... belief in the literal, bodily resurrection of Jesus is also not shared by many other, non-Evangelical Christians. Similarly, belief in an imminent, personal, and visible second coming of Jesus Christ, as held by Prison Fellowship Ministries ..., does not comport with the belief held by other non-Evangelical Christians that, if a second coming of Christ occurs, its nature is unknown, or is more spiritualized. (6) Chief Judge Pratt concluded that given these major doctrinal differences between Evangelical Christianity (and therefore Prison Fellowship Ministries) and other Christian groups, Prison Fellowship Ministries' program was not acceptable to inmates or state employees who considered themselves Christian but not Evangelical Christian. (7)

Chief Judge Pratt's claimed authority for this odious incursion into a party's religious and philosophical beliefs was the "pervasively sectarian" test. Birthed in the 1970s, this invidiously discriminatory test demonstrates outright hostility to religion by denying public funds to any religious institution that takes its religious mission seriously and integrates faith and practice. (8) To determine whether an institution is "too religious" to obtain funding, a court must pry into the institution's character and beliefs to determine the level of its religiosity. (9) For these and other reasons, Justice Thomas scathingly attacked the pervasively sectarian test when he wrote for the plurality in Mitchell y. Helms. Justice Thomas stated that the test "arose at a time of pervasive hostility to the Catholic Church and to Catholics in general" and further declared that the test required unacceptable "trolling through a person's or institution's religious beliefs" and required unconstitutional "discriminati[on] in the distribution of public benefits based upon religious status or sincerity." (10)

This Article in Part I traces the rise and fall of the pervasively sectarian test from its creation in the 1970s through Justice Thomas's attack in Mitchell v. Helms, and highlights the ever-shifting standards and lack of clarity in this area of First Amendment jurisprudence. Part II focuses on the post-Mitchell confusion in the lower courts due to the Court's shifting standards and lack of clarity. Part III examines the executive branch's approach to the test as demonstrated in the Faith-Based and Community Initiative. Finally, Part IV considers the best hope to both eliminate the confusion in the lower courts and correct the flaws in the executive branch's approach, by following the Tenth Circuit's recent analysis in Colorado Christian University v. Weaver and driving the stake of neutrality through the heart of the invidiously discriminatory pervasively sectarian test. (11)

1. THE RISE AND FALL OF THE "PERVASIVELY SECTARIAN" TEST

The pervasively sectarian test arose out of the 1971 case of Lemon W. Kurtzman. (12) In Lemon, Chief Justice Burger noted that contrary to Thomas Jefferson's misleading wall of separation metaphor, total separation between church and state is simply impossible, since some relationship is inevitable (the Chief Justice cited fire inspections, compulsory school attendance laws, and building and zoning regulations as examples of contact between church and state). (13) This inevitability of relationship, however, did not permit an evenhanded distribution of funds between religious and secular institutions, even if these funds were collected in part from supporters of the religious organizations, and even if the religious organizations performed a public function, thereby relieving the state of some of its responsibilities. (14) Rather, according to Chief Justice Burger, the courts must "examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority." (15) To determine the constitutionality of a relationship between the state and a religious institution, the Court created the three-part Lemon test. (16) "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; [third], the statute must not foster an excessive government entanglement with religion." (17)

Regarding the character and purposes of the Roman Catholic schools benefited by the Rhode Island program at issue, the Chief Justice examined the proximity between the churches and the religious schools, the religious symbols in the school buildings, the time spent daily in direct religious instruction, the clerical nature of the teachers (two-thirds of the teachers in the parochial schools were nuns), the "atmosphere" of the school, and the governance of the school. (18) Regarding the type of aid at issue (the Rhode Island statute directly supplemented the salaries of teachers of secular subjects in non-public schools), Chief Justice Burger doubted whether direct payments could ever be permitted, since the teachers were members of a particular faith, employed by a religious organization, subject to the discipline of religious authorities, and worked in a system devoted to raising children in a particular faith. (19) Without trying to accuse the parochial school teachers of bad faith, the Court found that the programs in question failed the "excessive entanglement" prong and the Chief Justice stated that the Court

simply recognize[d] that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral. Doctrines and faith are not inculcated or advanced by neutrals. With the best of intentions such a teacher would find it hard to make a total separation between secular teaching and religious doctrine. What would appear to some to be essential to good citizenship might well for others border on or constitute instruction in religion. (20) The Lemon Court's level of suspicion and resulting examination of the "religiosity" of the recipients of public funds created the environment which spawned the pervasively sectarian test and allowed it to loom over Establishment Clause jurisprudence for the next three decades.

The phrase "pervasively sectarian" first appeared two years later in the U.S. Supreme Court case of Hunt v. McNair, (21) which involved the constitutionality of a state statute authorizing the issuance of revenue bonds for use in the construction of facilities at public and private colleges and universities. (22) Justice Powell, writing for the majority, first acknowledged that the Supreme Court has consistently rejected an interpretation of the Establishment Clause that prohibits funding of "any program which in some manner aids an institution with a religious affiliation." (23) To repeat his point, Justice Powell stated that "the Court has not accepted the recurrent argument that all aid is forbidden because aid to one aspect of an institution frees it to spend its other resources on religious ends." (24) Having acknowledged the constitutional propriety of public aid to some religious programs, Justice Powell reversed course and purposely discriminated against organizations that take their religion too seriously by prohibiting governmental funding of "institution[s] in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting." (25) That is, the government would violate the Establishment Clause (more specifically, the second prong of the Lemon test) if it funded a religious activity (whether voluntary or not) or if it funded an institution which integrates its faith and its mission. (26) If an institution does not segregate its faith from its practice, then all funding is prohibited.

The implications...