UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 2WINTER 1985
The Establishment Clause and the Free Exercise Clause of the Washington Constitution-A Proposal to the Supreme Court
Frank J. Conklin and James M. Vache(fn*) (fn**)
I. Introduction
Perhaps the most interesting issue in recent constitutional law jurisprudence is the movement toward enhancement of individual liberties by state courts' independent interpretation of state constitutional provisions.(fn1) This movement has developed because of the United States Supreme Court's recent retreat from the zealous concern for civil liberties exhibited by the Warren Court. In the narrower context of church-state relationships, the Court now evinces a more equivocal attitude than ever before.
The Washington State Supreme Court has reworked constitutional exegesis in several areas.(fn2) At least one such attempt has been severely criticized: "The majority's decision to embrace independent state grounds . . . is unfortunate . . . . This is the type of decision making that has quite justifiably 'resulted in charges that state courts are evading Supreme Court doctrine and engaging in unprincipled, result-oriented use of their state constitutions.' "(fn3)
Despite such criticism, the Washington court seems to relish using the state constitution to break ground on civil liberties issues. For example, the court has accorded significantly more protection to detained persons whose automobiles are searched than is offered by the fourth amendment.(fn4) In so doing, the court is creating a gap between the nationalizing influence of federal constitutional law and state treatment of similar issues. This gap may continue to grow, at least until the next election-or the one after that-limited only by judicial self-restraint and the spectre of a collision between enhanced state liberties of one group and recognized federal liberties of another. With regard to religious liberty and the prohibition of the state's encouragement of religion, there is strong constitutional(fn5) and case law support(fn6) for enhanced protection of individual interests that predates and presages this "new" state constitutional law.
Given recent signs of a relaxation in viewpoint by the United States Supreme Court towards the establishment clause,(fn7) interested groups in this state will likely exert pressure to bring assistance-to-religion issues into public law. Inevitably, the Washington court will be asked to re-examine the state constitution to determine whether the court's adherence to an independent, strict "anti-establishment" position should be maintained or even strengthened.
This Article traces the independent development in the case law interpreting the Washington Constitution and in the drafting of the document itself. It is the position of the authors that the strict approach and consequent rigorous, independent analysis by the Washington court is not a necessary or appropriate method of deciding church-state issues, at least in many contexts. When examining establishment clause issues under the state constitution, the Washington State Supreme Court should therefore modify its previous position and adopt a more common-sense approach in lieu of the doctrinaire rigidity that has characterized prior opinions.
II. The Anti-Establishment Cases in Washington
One particularly strong statement appears in the Washington cases regarding use of public funds that benefit schools under sectarian influence: "[a]ny use of public funds that benefits schools under sectarian control or influence-regardless of whether that benefit is characterized as 'indirect' or 'incidental'-violates [article IX, section 11 of the Washington Constitution]."(fn8) With firm determination and vocal partisan support, the Washington State Supreme Court has turned away from the finely spun distinctions that have permeated the United States Supreme Court's efforts in judging the merits of various state aid plans.(fn9)
Weiss v. Bruno(fn10) involved challenges to public funding of tuition for needy students in kindergarten through twelfth grade in public and private schools and to a tuition supplement program for students in private higher education. Reasoning that both programs supported the schools themselves and that the schools were under sectarian control, the Washington State Supreme Court invalidated the programs under article IX, section 4 of the state constitution, which provides: "[a] 11 schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence."(fn11) The court's view appears firm: the drafters of the state constitution intended an absolute prohibition against use of public funds in support of sectarian schools. This principle transcends related principles under the first amendment and continues to be recognized by the court.
Further support for this position is provided by the holdings of the court in Mitchell v. Consolidated School District No. 201(fn12) and Visser u. Nooksack Valley School District No. 506.(fn13) In both cases the court voided legislation that would have provided publicly funded transportation for students attending any school in accordance with mandatory attendance laws, including private sectarian schools. Such assistance, the court held, violated both article IX, section 4 and article I, section 11: "no public money or property shall be appropriated or applied to any religious worship, exercise or instruction, or the support of any religious establishment."(fn14)
In Visser, the court was confronted by the claim that it should permit publicly funded transportation because the United States Supreme Court had recently interpreted the first amendment to allow public transportation for parochial school students.(fn15) In rejecting this assertion, the court said:Although the decisions of the United States supreme court are entitled to the highest consideration as they bear on related questions before this court, we must, in light of the clear provisions of our state constitution and our decisions thereunder, respectfully disagree with those portions of the Everson majority opinion which might be construed, in the abstract, as stating that transportation, furnished at public expense, to children attending religious schools, is not in support of such schools.(fn16)
In partial summary, the Mitchell, Visser, and Weiss decisions, together with State Higher Education Assistance Authority v. Graham,"(fn17) which struck down a state-sponsored college-student loan program as violative of article IX, section 4 and article I, section 11, severely restrict direct or indirect state financial support of sectarian schools.(fn18)
In a similar manner, the court has been quite consistent in refusing to allow sectarian influence in the public schools. State ex rel. Dearie v. Frazier(fn19) and State ex rel. Clithero v. Showalter(fn20) prohibited the teaching of the Bible in public schools on the ground that such courses contravened article I, section 11 by using public funds for religious instruction. Calvary Bible Presbyterian Church v. Board of Regents,(fn21) a case in which the court refused to enjoin the teaching of a course on the Bible as literature at the University of Washington, is obviously inconsistent with this approach. The distinguishing rationale offered in Calvary Bible was that no religious "instruction" took place because the course consisted of a scholarly examination of the literature, rather than a manifestation of devotion to religious principles.(fn22) When the same course is taught in a church-related school, however, religious instruction obviously occurs because of where the course is taught.(fn23)
Finally, although the court intimated in Perry v. School District No. 81(fn24) that a release-time provision for religious instruction in public schools would be consistent with article I, section 11 and article IX, section 4,(fn25) the particular program was stricken because the schools participated by distributing registration cards and either making announcements about the program in the classroom or allowing representatives of the religious groups to do so.(fn26) In this case, the court seemed to construe the Washington provisions on establishment identically with the United States Supreme Court's then current perception of release time.(fn27) The Washington court's view of the scope of the prohibitions, however, remained unchanged, especially since the court went through great pains to establish that a school district could satisfy the constitutional limits only through total noninvolvement(fn28) (that is, nonsectarian-influenced: no public expenditure). The practical consequence of these separationist rules would seem to fatally discourage release-time programs.
In the area of education, the Washington courts have virtually isolated religion from government, although total separation of church and state may not be their intention. In Weiss, the court noted that total "separation" at some point might violate the free exercise of religion guaranteed by the first amendment.(fn29) Total separation might also violate the free-belief provisions of article I, section 11 of the Washington Constitution,(fn30)
Thus, aside from the dictum in Perry suggesting how a release-time provision could survive state constitutional scrutiny,(fn31) the court has on...
