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

• Author: Davids, James A.
• Position: P. 93-121

2. CONFUSION IN THE POST-MITCHELL CASES ON THE CONTINUED VITALITY OF THE TEST

   Justice O'Connor's concurring opinion in Mitchell clearly implied the death of the pervasively sectarian test by removing the presumption which provided its foundation and by not applying it in a situation where the Court had previously applied it. She did not in express terms, however, proclaim the burial of the test as had Justice Thomas. This failure by Justice O'Connor to state clearly and finally that the test is dead has resulted in considerable confusion in the lower courts since 2000 and the Mitchell decision. This Part examines by circuit the post-Mitchell cases mentioning the pervasively sectarian test. (167)

   1. Fourth Circuit

      The case which Justice Thomas used as a vehicle to express his displeasure with the pervasively sectarian test (168) yielded an early post-Mitchell appellate opinion on the continued vitality of the test. Columbia Union College v. Oliver involved the college's application for a grant from Maryland's Joseph A. Sellinger Program, which gives public aid directly to private colleges based on neutral criteria. (169) Since the governmental body authorized to make these grants denied Columbia Union's application because of its pervasively sectarian nature, the test was front and center in this case. (170)

      Given the test's centrality, Chief Judge Wilkinson analyzed in detail Justice Thomas's plurality opinion in Mitchell as well as the concurring opinion of Justice O'Connor which Chief Judge Wilkinson considered controlling. (171) With respect to Justice O'Connor's opinion, the Chief Judge noted that Justice O'Connor agreed with the plurality on many issues, and that two specific issues caused her to write a separate concurrence: (172) first, the relative importance of neutrality (Justice O'Connor considered neutrality of public aid to religious institutions important but not dispositive, while the plurality considered it singularly important); (173) and secondly, diversion of aid to religious activity (Justice O'Connor maintained that the plurality opinion approved of "actual diversion of government aid to religious indoctrination," (174) and contended that such diversion would appear as government support to advance religion). (175)

      Of particular significance to the continued vitality of the pervasively sectarian test, according to Chief Judge Wilkinson, was the fact that Justice O'Connor joined the plurality in specifically overruling Meek and Wolman and their presumption that secular instructional materials given to pervasively religious institutions would be diverted for use in religious indoctrination. (176) Instead of this presumption, Justice O'Connor would require plaintiffs to "prove that the aid in question actually is, or has been, used for religious purposes." (177) Chief Judge Wilkinson noted: "By focusing on actual diversion of aid instead of the presumption that any secular class at a religious school would 'inevitably inculcate religion,' Justice O'Connor acknowledged her agreement with the plurality that the pervasively sectarian doctrine was becoming ever more problematic for Establishment Clause purposes." (178)

      After a careful and thorough review of the plurality opinion as well as the controlling concurring opinion by Justice O'Connor, Chief Judge Wilkinson stated that Mitchell

      establishes three fundamental guideposts for Establishment Clause cases. First, the neutrality of aid criteria is an important factor, even if it is not the only factor, in assessing a public assistance program. Second, the actual diversion of government aid to religious purposes is prohibited. Third, and relatedly, "presumptions of religious indoctrination" inherent in the pervasively sectarian analysis "are normally inappropriate when evaluating neutral school-aid programs under the Establishment Clause." The O'Connor concurring opinion, which is the controlling opinion from Mitchell, replaced the pervasively sectarian test with a principle of "neutrality plus." Neutrality is a necessary and important consideration in judging Establishment Clause cases, but it may not be sufficient in and of itself. Instead, courts must examine whether actual diversion of aid occurs and whether the "particular facts of each case" reveal that the Establishment Clause has been violated. (179) The irrebuttable presumption of illegal use of public aid by religious organizations that integrate religion and secular mission was the very foundation of the pervasively sectarian test. Without the presumption, the focus is on conduct. The operative question shifts from what is the nature of the institution to the use of the money. That is, the question becomes whether the institution has diverted any secular aid to inherently religious objects or activities, such as sacred writings, religion classes, chapels, etc. This inquiry is less intrusive and less discriminatory, since it does not require a court to troll through the party's religious practices and it does not categorically deny public funds to any institution which takes its religion "too seriously."

   2. Sixth Circuit

      The Sixth Circuit examined the post-Mitchell vitality of the pervasively sectarian test in Steele v. Industrial Development Board, which involved a bond issue for a private religious college. (180) In response to the defendants' claim that the pervasively sectarian test did not survive Mitchell, the district court stated that because neither Justice O'Connor nor Justice Breyer joined in any part of the Mitchell plurality, the test remained. (181) The district court declared that it "w[ould] not abandon a recognized and applicable test under Establishment Clause jurisprudence unless and until the Supreme Court has clearly determined that it is no longer a valid approach." (182) The district court then applied the test, conducted an examination deemed "unnecessary" and "offensive" by Justice Thomas in Mitchell, (183) and found that the bond issue violated the Establishment Clause. (184)

      The Sixth Circuit, in a split decision, reversed the district court and held that the proposed revenue bonds issued to the university were constitutional as they were "part of a neutral program to benefit education ... and confer[red] at best only an indirect benefit to the school." (185) Though the Sixth Circuit reversed the district court's holding, the court did not disagree with the lower court's opinion regarding the pervasively sectarian test. The court stated that while "[t]he vitality of the pervasively sectarian test is questionable[,] ... there is no single part of any opinion that commands the support of a majority of the Court," and therefore "the only binding precedent of Mitchell is the holding." (186) In other words, since Mitchell was a plurality opinion, the lower courts remain bound by pre-Mitchell law as to the pervasively sectarian test, particularly since the Supreme Court has stated that lower courts must treat prior Supreme Court decisions as controlling until the Supreme Court overrules them. (187) "It is for the Supreme Court, not this Court, to jettison the pervasively sectarian test, which it has not done." (188)

      Undoubtedly more daring, but clearly in line with the analysis of Justice O'Connor's concurring Mitchell opinion, is the opinion of Judge Cohn in American Atheists, Inc. v. City of Detroit Downtown Development Authority. (189) In preparation for the 2005 Major League Baseball All-Star Game and the 2006 National Football League Super Bowl, the City of Detroit issued grants to building owners and lessees that reimbursed them for up to half of the cost of exterior building improvements. (190) Plaintiffs challenged the constitutionality of giving grants to three churches. (191)

      Judge Cohn, in a lengthy opinion, analyzed the facts using the Agostini test and reviewed the status of the pervasively sectarian test after Mitchell. (192) In this regard, he noted that "[al review of Mitchell establishes that ... there has been a jurisprudential shift in the Supreme Court's view of government aid to pervasively sectarian institutions," which he was bound to recognize. (193) What he recognized was that "the viability of the 'pervasively sectarian" doctrine is in serious decline as the plurality in Mitchell expressly abandoned it and Justice O'Connor and Justice Breyer implicitly abandoned it by concurring with the decision to uphold the Chapter 2 program." (194)

      Judge Cohn agreed with Chief Judge Wilkinson in Columbia Union College v. Oliver regarding the "three fundamental guideposts for Establishment Clause cases." (195) These guideposts of neutrality, no actual diversion of government aid to religious purposes, and no presumption of religious indoctrination, shift the focus from who the recipient is to what the recipient does. If there is no presumption of religious indoctrination in pervasively sectarian institutions, then there is no need to "troll" through the religious beliefs of the organization, and a court's inquiry is limited to whether the organization actually diverted public aid impermissibly to inherently religious activities. (196)

   3. Second Circuit

      Decided two months before Columbia Union College v. Oliver, the Second Circuit in DeStefano v. Emergency Housing Group, Inc., did not have the benefit of Chief Judge Wilkinson's opinion, but yet came to nearly the same conclusion regarding post-Mitchell Establishment Clause law. (197) DeStefano involved an Establishment Clause challenge to New York's funding of a private alcohol treatment facility which incorporated Alcoholics Anonymous (and its twelve step process including references to God) in its treatment program. (198) The court began its analysis of Mitchell by looking at the plurality's emphasis on the neutral administration of government aid. (199) According to the court's analysis, the Mitchell plurality stands for the proposition that so long as government funds "are equally...