Movement toward Neutrality in First Amendment Jurisprudence

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Prior to the mid-20th century, the U.S. Supreme Court considered very few cases involving the Establishment Clause of the First Amendment. By the 1970s, the Court had interpreted the Clause to prohibit government aid to religious organizations deemed to be “pervasively sectarian,” meaning that groups with strong religious orientation were prohibited from participating in otherwise widely-available public programs. The Court’s early cases nearly all dealt with the government providing direct financial assistance (cash or in kind) to religious schools.9 This pervasively sectarian doctrine required the courts to examine the religious beliefs and practices of religious organizations on a case-by-case basis to determine whether a “substantial portion of its functions are subsumed in [its] religious mission….”10

In the 1980s, the Court began moving away from a strict separationist paradigm to a philosophy of neutrality, which promotes pluralism and nondiscrimination and refrains from using the power of the government purse to coerce individuals’ or organizations’ religious beliefs or practices. A neutral policy provides equal access to government-sponsored programs and forums without requiring forfeiture of religious speech or character. Under the neutrality paradigm, the constitutionality of financial assistance provided directly to an organization rests on the type and use of such aid, instead of focusing on the nature or beliefs of the organization.11
In its modern neutrality precedents, the Supreme Court made clear that faith-based organizations may participate as grantees of Federal social service programs, provided there is “nothing inherently religious” about services provided under the program.12 Indeed, the Court added that Congress may “recognize[e] the important part that religion or religious organizations may play in resolving certain secular problems.”13 The Court abandoned the “pervasively sectarian” standard, permitting religious organizations to participate in neutral, secular direct aid programs, provided the aid is limited to secular uses and not diverted to religious uses.14 The constitutionality of a Federal program rests on the use of the aid provided, rather than the character of the organization receiving the aid.

The Supreme Court has also set forth distinct guidelines for programs that allow participants real choice among multiple service providers. Such programs do not provide government funds directly to organizations, but rather to individual participants, so the funding approach is referred to as “indirect aid.” In choice-based programs that deliver services using “indirect aid,” the Supreme Court shifted its focus from the nature of the organization providing the services to the nature of the choice provided to the individual beneficiary.15 The Court held that “where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of beneficiaries who, in turn, direct government aid to religious [organizations] wholly as a result of their own genuine and independent private choice” the program is constitutional.16 In such programs, faith-based organizations are not required to alter their religious identity or separate religious activities, as any religious indoctrination that may take place is the result of the choice of the individual, rather than government.17

This is an excerpt from an article that may be viewed at:
http://www.whitehouse.gov/government/fbci/qr2.html

References:
9 See Aguilar v. Felton, 473 U.S. 402 (1985) (invalidating remedial education for disadvantaged students that was delivered by public school teachers on campuses of religious schools); Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985) (invalidating supplemental courses taught by public school teachers on campuses of religious schools); Wolman v. Walter, 433 U.S. 229 (1977) (invalidating State program to provide instructional materials to religious schools); Roemer v. Maryland Pub. Works Bd., 426 U.S. 736 (1976) (permitting State program providing noncategorical grants to religiously affiliated colleges, provided the colleges are not pervasively sectarian and the grants are not used for sectarian purposes); Meek v. Pettinger, 421 U.S. 349 (1975) (invalidating State program to provide instructional materials to religious schools); Hunt v. McNair, 413 U.S. 734, 743 (1973) (permitting State program to provide bonds for construction of buildings at religiously affiliated colleges, provided college not pervasively sectarian and buildings not used for sectarian purposes); Levitt v. Committee for Pub. Ed., 413 U.S. 472 (1973) (invalidating State payments for State-required tests designed and graded by teachers in religious schools); Lemon v. Kurtzman, 403 U.S. 602, (1971) (invalidating State payments for portion of salaries of teachers in religious schools, textbooks and instructional materials); Tilton v. Richardson, 403 U.S. 672 (1971) (permitting federal program to provide grants for construction of buildings at religiously affiliated colleges, provided college not pervasively sectarian and buildings not used for sectarian purposes). See also Ira C. Lupu & Robert W. Tuttle, Government Partnerships with Faith-Based Providers: State of the Law (2002); Ira C. Lupu, testimony before the Committee on the Judiciary, Subcommittee on the Constitution, U.S House of Representatives, June 7, 2001; Douglas Laycock, The Underlying Unity of Separation and Neutrality, 46 Emory L.J. 43 (1997).
10 Hunt, 413 U.S. 734, 743 (1973).
11 See Ira C. Lupu & Robert W. Tuttle, Government Partnerships with Faith-Based Providers: State of the Law (2002); Ira C. Lupu, testimony before the Committee on the Judiciary, Subcommittee on the Constitution, U.S House of Representatives, June 7, 2001; Eric W. Treene, Religion, the Public Square, and the Presidency, 24 Harv. J.L. & Pub. Pol’y 573 (2001); Carl H. Esbeck, Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause, 13 Notre Dame J.L. Ethics & Pub. Pol’y 285 (1999); Douglas Laycock, The Underlying Unity of Separation and Neutrality, 46 Emory L.J. 43 (1997); Stephen V. Monsma and J. Christopher Sopher, eds., Equal Treatment of Religion in a Pluralistic Society (1998).
12 See Mitchell v. Helms, 530 U.S. 793 (2000) (permitting State-administered program loaning secular educational materials and equipment to public and private schools, including religious schools); Agostini v. Felton, 521 U.S. 203 (1997) (permitting remedial education for disadvantaged students that was delivered by public school teachers on campuses of religious schools); Bowen v. Kendrick, 487 U.S. 589 (1988) (upholding participation of religious organizations in adolescent pregnancy education and services grant program).
13 Bowen, 487 U.S. at 607.
14 Mitchell, 530 U.S. 793, 853-60 (O’Connor, J., concurring in the judgment).
15 See Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (upholding a State program permitting parents to use vouchers at religiously affiliated schools); Zobrest v. Catalinia Foothills Sch. Dist., 509 U.S. 1 (1993) (permitting a student to receive State- funded sign language interpretation services at his at a religiously affiliated school); Witters v. Washington, 474 U.S. 481 (1986) (upholding a program permitting tuition grants to be used at religiously affiliated colleges and for ministerial studies); Mueller v. Allen, 463 U.S. 388 (1983) (upholding a State tax deduction for private school tuition paid to religiously affiliated schools).
16 Zelman, 536 U.S. at 652.
17 See Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (upholding a State program permitting parents to use vouchers at religiously affiliated schools); Zobrest v. Catalinia Foothills Sch. Dist., 509 U.S. 1 (1993) (permitting a student to receive State- funded sign language interpretation services at his at a religiously affiliated school); Witters v. Washington, 474 U.S. 481 (1986) (upholding a program permitting tuition grants to be used at religiously affiliated colleges and for ministerial studies); Mueller v. Allen, 463 U.S. 388 (1983) (upholding a State tax deduction for private school tuition paid to religiously affiliated schools).

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