First Among Equals (17 page)

The Court struggled for years with doctrinal consistency in this area. Increasingly, it was openly apologizing for its work product. No one could tell in advance what the Court, with its shifting majorities, would uphold. Under the Court's decisions, textbooks were okay but maps were not. The distinctions seemed increasingly fine, to the point of being illusory. As then Justice Rehnquist scornfully noted in one opinion, if textbooks were okay but maps were not, how would the Court resolve the issue of a book of maps?

Consistency proved elusive year after year, and results from case to case seemed arbitrary. Even the principal tool in the justices' toolbox, the
Lemon
test, proved too pliable. It had failed to yield predictable results, and the justices battled over its application in a variety of settings—not just in aid to parochial schools.

A controversial 1983 case made the point well. Nebraska, like other states, had an official chaplain for the legislature, paid for by state funds. In
Marsh v. Chambers,
this long-standing practice was challenged as a violation of the First Amendment. But there was a major problem with this constitutional attack: The U.S. Congress itself had chaplains. In fact, the very Congress that wrote the Bill of Rights had appointed the first chaplains, thus initiating a tradition unbroken over two centuries. That tradition clearly supported the constitutionality of the practice, an outcome just as clearly at odds with the Court's separationist doctrine.

As a method of interpreting the Constitution, history and tradition loom large for the justices. Time and again, the Court considers past arrangements and practices. And if a practice enjoyed the approval of the founding generation, especially of the early Congresses, that historic grounding is viewed by virtually all justices as going far toward establishing its constitutionality. The assumption is that James Madison and his contemporaries well understood the reach of the Constitution, and that it would be presumptuous to invalidate practices the founders themselves approved.

The centrists in the early-to-mid-1980s, led by the aging Justice Powell and the newly appointed Justice O'Connor, reached for this history to decide the
Marsh v. Chambers
case in favor of the chaplains. If the practice of legislative chaplains was sanctioned (indeed inaugurated) by the very Congress that framed the Establishment Clause and succeeding Congresses to the present day had embraced it, then the practice could not be invalidated.

Even so, with history so monolithically in favor of the practice, the Court could not achieve the unanimity (or even near-unanimity) that it had often found in applying the principle. Within the Court was a sharp clash of competing views. Justice Brennan, battling to save
Everson's
doctrine, assailed Chief Justice Burger's history-laden opinion. History, Justice Brennan and his fellow liberals opined, was only one of the various tools the Court uses in constitutional analysis. History did not foreclose other approaches, since even the founding generation could be wrong. It could be morally wrong, as the original Constitution was in its indirect sanctioning of slavery, or it could be legally wrong, as the Federalist-dominated Congress was in 1798 when it passed the Alien and Sedition Acts, which in effect forbade criticism of high government officials.

In particular, Justice Brennan—who would have invalidated the practice of state-paid chaplains—criticized Chief Justice Burger's majority opinion for failing to consider more recent developments in constitutional doctrine. Invoking the three-part
Lemon
test, Justice Brennan concluded that the state may not pay for chaplains.

As Brennan explained, Nebraska's chaplaincy failed all three parts of the
Lemon
test. First, it did not have a primarily secular purpose. If the legislature's goal was to give an air of solemnity and dignity to the proceedings (which would be a permissible, nonreligious purpose), prayer was entirely unnecessary. Other ceremonies would achieve that purpose, including a recitation of the Pledge of Allegiance, readings from the Constitution or Bill of Rights, and the like. Nor—the second part of the
Lemon
test—did the chaplaincy have primarily a secular effect. Prayer was at the heart of religious observance, and an ordained clergyman delivering prayers in a formal legislative setting could only be viewed as having the effect of advancing religion. Finally, a state's employment of a paid chaplain “excessively entangled” the government with the religious community. Issues inevitably emerged as to which chaplain to choose from which faith community, what the chaplain's duties should be, and so on. All of this in Brennan's view brought church and state into too close a relationship.

The intriguing point about the Court's internal debate over the chaplaincy question is that the majority in
Marsh v. Chambers
chose not to respond to the dissent. Ordinarily, a dissenting opinion causes the five or more justices in the majority to set forth replies and rebuttals, if only in one or more footnotes. The majority's response typically moves the dissenters to refine their objections. The two sides go back and forth in a written dialogue among the justices—all behind the scenes and unknown to the public—that then finds expression in the set of opinions formally released by the Court.

In
Marsh,
history seemed sufficient to the Burger Court majority to justify dispensing with the usual judicial conversation. The majority had history on its side, and that was enough. No further commentary or analysis was needed. The majority and the dissent simply talked past each other. The majority used history, and the dissent used the
Lemon
test. The choice of tools determined the outcome. History had the votes; the judicially created
“Lemon
test” fell short.

Marsh
sharply illustrated the divisions over church and state within the Burger Court. In that Court's final year, the justices began searching for a new approach, particularly on school-aid cases. Often the Court's center moved to a position rooted in earlier principles and carried the justices back to a more predictable set of rules. While carefully avoiding an outright overruling of earlier cases, the Court found a different mode of analysis.

With one faction remaining ardently separationist, the Court's center began to emphasize
neutrality,
a principle closely related to the pivotal concept of equality. Like equality, neutrality was one of the large, unifying ideas around which the Court could rally. The issue now became: Does government treat religious institutions and secular (state) institutions in the same manner? Does it, in providing secular assistance, regard public schools and religious schools on the same terms? If government is indeed neutral, under this theory, then there is no Establishment Clause problem.

The neutrality principle was not developed overnight. To the contrary, over a number of years, the Court worked its way through a series of cases raising numerous church-state questions. From this examination of a variety of patterns, constitutional rules slowly emerged, term by term. Facts drove, or at least heavily shaped, the law. This was the lawyer's craft.

The degree to which the sheer facts in a case influence the Court's decision-making is often neglected, even by full-time observers of the Court's work. The Court's concern for the facts is not surprising, since it is a lawyers' Court, not one of politicians. Politicians make policy in the less rigorous setting of the executive branch or Congress. In these venues, debate about what is good for society—whether tax cuts, on the one hand, or budget-deficit reduction on the other—occurs in mainly general terms. “No tax cuts for the top 1 percent,” or “free small businesses from the heavy hand of government regulation” are familiar examples from the political arena. Not so in the Supreme Court. The justices focus closely on the specific facts of the case.

Congress typically graces legislation with a “preamble” or its equivalent. Those opening provisions of a law will set forth findings in general terms. The substance then follows.

The Court's work is much different. Nuances count. The Court's rigorous focus on the facts leads to a decision, then another, and eventually a body of law is produced. This is exactly what happened with the issue of aid to religious schools.

The Court, in effect, jettisoned (or ignored) much of its more recent doctrine and returned to what it saw as first principles. The analysis, in short, was this: Government assists a host of activities, some of which are undertaken by religious organizations. Congress (or other levels of government) should be able to finance those activities, as long as the activities are secular and the government aid is being provided neutrally and across the board.

A breakthrough came in the waning days of the Burger Court when, in 1986, it addressed
Witters v. Washington,
a case involving a blind student who wanted to use state-provided vocational education funds to attend a Bible college to prepare for the ministry. Authorities in Washington state refused. Train for some secular vocation, they helpfully suggested, and the state will gladly provide assistance, but the state cannot pay for a person to become a minister or church worker, as that would violate the Establishment Clause.

The Supreme Court disagreed, unanimously. The program in question—and this fact the Court deemed critical—provided aid to
the student himself,
who then used the assistance as he saw fit to prepare for a vocation of his choosing. This was
not
a government payment to the Inland Empire School of the Bible, where the blind student was training for the ministry; it was, to the contrary, aid paid directly to the student, who then decided for himself, without state encouragement or direction, what he would study. As the Court saw the case, the fact that the student wished to become a minister should not have concerned the state. Choice of vocation—religious or secular—was entirely that of the student.

This set of facts guided the Court to embrace neutrality as a core principle. The state should not have directed the blind student into a particular vocational path. Rather, it should simply have provided assistance, neutrally, to a category of persons, blind adults, who were seeking vocational training. Applied this way, neutrality is a form of
equality.

Neutrality is at stake in the bitterly fought contest over government programs, such as the Milwaukee and Cleveland voucher programs, that enable schoolchildren from poor families to attend private, often church-related schools. In Milwaukee's program, the state provides payments (in the form of “vouchers”) to qualifying families, who then choose where they will use the vouchers. The state gives no guidance, direction, or even a hint about what school—religious or secular—is right for any child. The family chooses. The state's money simply follows the
family's choice
for the child. Voucher programs extend the neutrality principle in the
Witters
case to children in grades kindergarten through twelve. The Court is preparing to resolve that question in the closely watched Cleveland case, argued on February 20, 2002.

All in all, the Court has permitted Congress more flexibility in recent years to provide assistance to religious schools. The Court, led again by the centrists—Justices O'Connor and Kennedy—has emphasized the need for neutrality in school-aid programs. A neutral program, one that allows aid to all schools regardless of their private or church-related nature, seeks to foster and improve education, but neither supports nor attacks religion. No hint has been detected in these congressional programs of a financial bailout for financially struggling religious schools, a feature that doomed a New York program of aid in an opinion authored early on in the Burger Court by Justice Powell.

The pivotal year for the Rehnquist Court was 1997, when it upheld a federal aid-to-education program established during the Great Society of President Lyndon Johnson. Under a statute passed thirty years earlier, Congress authorized federal funding—on a neutral basis—for remedial educational services provided by public school personnel on the premises of religious schools. This kind of program had been struck down by the Burger Court in 1985. But the Rehnquist Court took a different view. The Court rejected the Powell plurality's prohibition on “substantial aid to the educational function” of the schools. That was no longer the law, the Court held. In the intervening years, a whole host of decisions, including the blind-student case
(Witters),
had eroded the premise of the Powell approach.

The Rehnquist Court had found new ground. It had shifted from a strictly separationist perspective and become more tolerant about government aid to religious schools—as long as the aid is distributed on the basis of “criteria that neither favor nor disfavor religion” and in a form that does not lead to “government inculcation of religious beliefs” or “excessive entanglement.” The Court confirmed this approach in the spring of 2000, when it decided that a federal school-aid program under which states and localities lend materials and equipment to both public and private schools does not violate the Establishment Clause. Here again, the Court overruled prior decisions, either in whole or in part. In doing so, the majority showed little concern about the value of stability and “staying the course.” It seemed, rather, to be focused on clearing out some of the confused precedents of the Burger Court.

As in so many arenas, the Court had engaged in a multi-year careful refining of its own precedents. Trial and error, the methodology of common-law judges slowly developing an elaborate body of law, was the same method at work in constitutional law.

All the while, as the religion cases continue to press for the Court's resolution, the marshal begins the Court's daily sessions with the traditional cry, invoking God's blessing: “God save the United States, and this Honorable Court.” Looking on from his permanent seat high above the justices, a marble Moses holds forever the Ten Commandments. Notwithstanding the Warren and Burger Courts' drive toward separation, religious tradition continues to find its way into public life, as demonstrated by the outpouring of religious sentiment and patriotism in the wake of the terrorist attacks of September 11, 2001. For its part, the Rehnquist Court seems increasingly comfortable with those traditions. Moderation and flexibility have replaced doctrinal rigidity.