First Amendment--Religion and Expression

[[Page 965]]

                             FIRST AMENDMENT


                         RELIGION AND EXPRESSION



        Religion..................................................   969
        An Overview...............................................   969
                Scholarly Commentary..............................   970
                Court Tests Applied to Legislation Affecting 
                    Religion......................................   972
                Government Neutrality in Religious Disputes.......   974
        Establishment of Religion.................................   977
                Financial Assistance to Church-Related 
                    Institutions..................................   977
                Governmental Encouragement of Religion in Public 
                    Schools: Released Time........................   991
                Governmental Encouragement of Religion in Public 
                    Schools: Prayers and Bible Reading............   993
                Governmental Encouragement of Religion in Public 
                    Schools: Curriculum Restriction...............   996
                Access of Religious Groups to School Property.....   997
                Tax Exemptions of Religious Property..............   997
                Exemption of Religious Organizations from 
                    Generally Applicable Laws.....................   999
                Sunday Closing Laws...............................   999
                Conscientious Objection...........................  1000
                Regulation of Religious Solicitation..............  1001
                Religion in Governmental Observances..............  1002
                Miscellaneous.....................................  1004
        Free Exercise of Religion.................................  1005
                The Belief-Conduct Distinction....................  1007
                The Mormon Cases..................................  1009
                The Jehovah's Witnesses Cases.....................  1010
                Free Exercise Exemption from General Governmental 
                    Requirements..................................  1011
                Religious Test Oaths..............................  1019
                Religious Disqualification........................  1019
        Freedom of Expression--Speech and Press...................  1020
        Adoption and Common Law Background........................  1020
        Freedom of Expression: The Philosophical Basis............  1025
        Freedom of Expression: Is There a Difference Between 
            Speech and Press......................................  1026
        The Doctrine of Prior Restraint...........................  1029
                Injunctions and the Press in Fair Trial Cases.....  1031
                Obscenity and Prior Restraint.....................  1033
        Subsequent Punishment: Clear and Present Danger and Other 
            Tests.................................................  1034
                Clear and Present Danger..........................  1036
                The Adoption of Clear and Present Danger..........  1038
                Contempt of Court and Clear and Present Danger....  1040
                Clear and Present Danger Revised: Dennis..........  1042
                Balancing.........................................  1044
                The ``Absolutist'' View of the First Amendment, 
                    with a Note on ``Preferred Position''.........  1048
                Of Other Tests and Standards: Vagueness, 
                    Overbreadth, Least Restrictive Means, and 
                    Others........................................  1050

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                Is There a Present Test?..........................  1051
        Freedom of Belief.........................................  1053
                Flag Salute Cases.................................  1053
                Imposition of Consequences for Holding Certain 
                    Beliefs.......................................  1054
        Right of Association......................................  1056
                Political Association.............................  1061
                Conflict Between Organization and Members.........  1064
        Maintenance of National Security and the First Amendment..  1066
                Punishment of Advocacy............................  1067
                Compelled Registration of Communist Party.........  1069
                Punishment for Membership in an Organization Which 
                    Engages in Proscribed Advocacy................  1070
                Disabilities Attaching to Membership in Proscribed 
                    Organizations.................................  1071
                Employment Restrictions and Loyalty Oaths.........  1073
                Legislative Investigations and the First Amendment  1078
                Interference With War Effort......................  1079
                Suppression of Communist Propaganda in the Mails..  1080
                Exclusion of Certain Aliens as a First Amendment 
                    Problem.......................................  1080
        Particular Government Regulations Which Restrict 
            Expression............................................  1081
                Government as Employer: Political Activities......  1081
                Government as Employer: Free Expression Generally.  1084
                Government as Educator............................  1090
                Government as Regulator of the Electoral Process: 
                    Elections.....................................  1094
                Government as Regulator of the Electoral Process: 
                    Lobbying......................................  1101
                Government as Regulator of Labor Relations........  1102
                Government as Investigator: Journalist's Privilege  1102
                Government and the Conduct of Trials..............  1105
                Government as Administrator of Prisons............  1108
                Government and Power of the Purse.................  1112
        Governmental Regulation of Communications Industries......  1113
                Commercial Speech.................................  1113
                Taxation..........................................  1119
                Labor Relations...................................  1121
                Antitrust Laws....................................  1122
                Radio and Television..............................  1123
                Governmentally Compelled Right of Reply to 
                    Newspapers....................................  1127
        Government Restraint of Content of Expression.............  1127
                Seditious Speech and Seditious Libel..............  1131
                Fighting Words and Other Threats to the Peace.....  1133
                Group Libel, Hate Speech..........................  1135
                Defamation........................................  1136
                Invasion of Privacy...............................  1145
                Emotional Distress Tort Actions...................  1147
                ``Right of Publicity'' Tort Actions...............  1147
                Publication of Legally Confidential Information...  1148
                Obscenity.........................................  1149
                Child Pornography.................................  1159
                Nonobscene But Sexually Explicit and Indecent 
                    Expression....................................  1160
        Speech Plus--The Constitutional Law of Leafleting, 
            Picketing, and Demonstrating..........................  1164
                The Public Forum..................................  1164
                Quasi-Public Places...............................  1171

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                Picketing and Boycotts by Labor Unions............  1173
                Public Issue Picketing and Parading...............  1174
                Leafleting, Handbilling, and the Like.............  1180
                Sound Trucks, Noise...............................  1181
                Door-to-Door Solicitation.........................  1182
                The Problem of ``Symbolic Speech''................  1183
        Rights of Assembly and Petition...........................  1187
        Background and Development................................  1187
                The Cruikshank Case...............................  1189
                The Hague Case....................................  1190

[[Page 969]]

                             FIRST AMENDMENT

                         RELIGION AND EXPRESSION


  Congress shall make no law respecting an establishment of religion, or 
prohibiting the free exercise thereof; or abridging the freedom of 
speech, or of the press; or the right of the people peaceably to 
assemble, and to petition the Government for a redress of grievances.


      An Overview

        Madison's original proposal for a bill of rights provision 
concerning religion read: ``The civil rights of none shall be abridged 
on account of religious belief or worship, nor shall any national 
religion be established, nor shall the full and equal rights of 
conscience be in any manner, or on any pretence, infringed.''\1\ The 
language was altered in the House to read: ``Congress shall make no law 
establishing religion, or to prevent the free exercise thereof, or to 
infringe the rights of conscience.''\2\ In the Senate, the section 
adopted read: ``Congress shall make no law establishing articles of 
faith, or a mode of worship, or prohibiting the free exercise of 
religion, . . .''\3\ It was in the conference committee of the two 
bodies, chaired by Madison, that the present language was written with 
its some

[[Page 970]]
what more indefinite ``respecting'' phraseology.\4\ Debate in Congress 
lends little assistance in interpreting the religion clauses; Madison's 
position, as well as that of Jefferson who influenced him, is fairly 
clear,\5\ but the intent, insofar as there was one, of the others in 
Congress who voted for the language and those in the States who voted to 
ratify is subject to speculation.

        \1\1 Annals of Congress 434 (June 8, 1789).
        \2\The committee appointed to consider Madison's proposals, and 
on which Madison served, with Vining as chairman, had rewritten the 
religion section to read: ``No religion shall be established by law, nor 
shall the equal rights of conscience be infringed.'' After some debate 
during which Madison suggested that the word ``national'' might be 
inserted before the word ``religion'' as ``point[ing] the amendment 
directly to the object it was intended to prevent,'' the House adopted a 
substitute reading: ``Congress shall make no laws touching religion, or 
infringing the rights of conscience.'' 1 Annals of Congress 729-31 
(August 15, 1789). On August 20, on motion of Fisher Ames, the language 
of the clause as quoted in the text was adopted. Id. at 766. According 
to Madison's biographer, ``[t]here can be little doubt that this was 
written by Madison.'' I. Brant, James Madison--Father of the 
Constitution 1787-1800 at 271 (1950).
        \3\This text, taken from the Senate Journal of September 9, 
1789, appears in 2 B. Schwartz (ed.), The Bill of Rights: A Documentary 
History 1153 (1971). It was at this point that the religion clauses were 
joined with the freedom of expression clauses.
        \4\1 Annals of Congress 913 (September 24, 1789). The Senate 
concurred the same day. See I. Brant, James Madison--Father of the 
Constitution 1787-1800, 271-72 (1950).
        \5\During House debate, Madison told his fellow Members that 
``he apprehended the meaning of the words to be, that Congress should 
not establish a religion, and enforce the legal observation of it by 
law, nor compel men to worship God in any Manner contrary to their 
conscience.'' 1 Annals of Congress 730 (August 15, 1789). That his 
conception of ``establishment'' was quite broad is revealed in his veto 
as President in 1811 of a bill which in granting land reserved a parcel 
for a Baptist Church in Salem, Mississippi; the action, explained 
President Madison, ``comprises a principle and precedent for the 
appropriation of funds of the United States for the use and support of 
religious societies, contrary to the article of the Constitution which 
declares that `Congress shall make no law respecting a religious 
establishment.''' 8 The Writings of James Madison (G. Hunt. ed.) 132-33 
(1904). Madison's views were no doubt influenced by the fight in the 
Virginia legislature in 1784-1785 in which he successfully led the 
opposition to a tax to support teachers of religion in Virginia and in 
the course of which he drafted his ``Memorial and Remonstrance against 
Religious Assessments'' setting forth his thoughts. Id. at 183-91; I. 
Brant, James Madison--The Nationalist 1780-1787, 343-55 (1948). Acting 
on the momentum of this effort, Madison secured passage of Jefferson's 
``Bill for Religious Liberty''. Id. at 354; D. Malone, Jefferson the 
Virginian 274-280 (1948). The theme of the writings of both was that it 
was wrong to offer public support of any religion in particular or of 
religion in general.

        Scholarly Commentary.--The explication of the religion clauses 
by the scholars has followed a restrained sense of their meaning. Story, 
who thought that ``the right of a society or government to interfere in 
matters of religion will hardly be contested by any persons, who believe 
that piety, religion, and morality are intimately connected with the 
well being of the state, and indispensable to the administration of 
civil justice,''\6\ looked upon the prohibition simply as an exclusion 
from the Federal Government of all power to act upon the subject. ``The 
situation . . . of the different states equally proclaimed the policy, 
as well as the necessity of such an exclusion. In some of the states, 
episcopalians constituted the predominant sect; in others presbyterians; 
in others, congregationalists; in others, quakers; and in others again, 
there was a close numerical rivalry among contending sects. It was 
impossible, that there should not arise perpetual strife and perpetual 
jealousy on the subject of ecclesiastical ascendancy, if the national 
government were left free to create a religious establishment. The only 
security was in extirpating the power. But this alone would have been an 
imperfect security, if it had not been followed up by a declaration

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of the right of the free exercise of religion, and a prohibition (as we 
have seen) of all religious tests. Thus, the whole power over the 
subject of religion is left exclusively to the state governments, to be 
acted upon according to their own sense of justice, and the state 
constitutions; and the Catholic and the Protestant, the Calvinist and 
the Arminian, the Jew and the Infidel, may sit down at the common table 
of the national councils, without any inquisition into their faith, or 
mode of worship.''\7\

        \6\3 J. Story, Commentaries on the Constitution of the United 
States 1865 (1833).
        \7\Id. at 1873.

        ``Probably,'' Story also wrote, ``at the time of the adoption of 
the constitution and of the amendment to it, now under consideration, 
the general, if not the universal, sentiment in America was, that 
Christianity ought to receive encouragement from the state, so far as 
was not incompatible with the private rights of conscience, and the 
freedom of religious worship. An attempt to level all religions, and to 
make it a matter of state policy to hold all in utter indifference, 
would have created universal disapprobation, if not universal 
indignation.''\8\ The object, then, of the religion clauses in this view 
was not to prevent general governmental encouragement of religion, of 
Christianity, but to prevent religious persecution and to prevent a 
national establishment.\9\

        \8\Id. at 1868.
        \9\For a late expounding of this view, see T. Cooley, General 
Principles of Constitutional Law in the United States 224-25 (3d ed. 

        This interpretation has long since been abandoned by the Court, 
beginning, at least, with Everson v. Board of Education,\10\ in which 
the Court, without dissent on this point, declared that the 
Establishment Clause forbids not only practices that ``aid one 
religion'' or ``prefer one religion over another,'' but as well those 
that ``aid all religions.'' Recently, in reliance on published scholarly 
research and original sources, Court dissenters have recurred to the 
argument that what the religion clauses, principally the Establishment 
Clause, prevent is ``preferential'' governmental promotion of some 
religions, allowing general governmental promotion of all religion in 
general.\11\ The Court has not responded, though Justice Souter in a 
major concurring opinion did undertake to rebut the argument and to 
restate the Everson position.\12\

        \10\330 U.S. 1, 15 (1947). Establishment Clause jurisprudence 
since, whatever its twists and turns, maintains this view.
        \11\Wallace v. Jaffree, 472 U.S. 38, 91 (1985) (then-Justice 
Rehnquist dissenting). More recently, dissenters, including now-Chief 
Justice Rehnquist, have appeared reconciled to a ``constitutional 
tradition'' in which governmental endorsement of religion is out of 
bounds, even if it is not correct as a matter of history. See Lee v. 
Weisman, 112 S. Ct. 2649, 2678, 2683-84 (1992) (Justice Scalia, joined 
by the Chief Justice and Justices White and Thomas, dissenting).
        \12\Lee v. Weisman, 112 S. Ct. 2649, 2667 (1992) (Justice 
Souter, joined by Justices Stevens and O'Connor, concurring).


[[Page 972]]

        Court Tests Applied to Legislation Affecting Religion.--Before 
considering the development of the two religion clauses by the Supreme 
Court, one should notice briefly the tests developed by which religion 
cases are adjudicated by the Court. While later cases rely on a series 
of rather well-defined, if difficult-to-apply, tests, the language of 
earlier cases ``may have [contained] too sweeping utterances on aspects 
of these clauses that seemed clear in relation to the particular cases 
but have limited meaning as general principles.''\13\ It is well to 
recall that ``the purpose [of the religion clauses] was to state an 
objective, not to write a statute.''\14\

        \13\Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970).

        In 1802, President Jefferson wrote a letter to a group of 
Baptists in Danbury, Connecticut, in which he declared that it was the 
purpose of the First Amendment to build ``a wall of separation between 
Church and State.''\15\ In Reynolds v. United States,\16\ Chief Justice 
Waite for the Court characterized the phrase as ``almost an 
authoritative declaration of the scope and effect of the amendment.'' In 
its first encounters with religion-based challenges to state programs, 
the Court looked to Jefferson's metaphor for substantial guidance.\17\ 
But a metaphor may obscure as well as illuminate, and the Court soon 
began to emphasize neutrality and voluntarism as the standard of 
restraint on governmental action.\18\

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The concept of neutrality itself is ``a coat of many colors,''\19\ and 
three standards that could be stated in objective fashion emerged as 
tests of Establishment Clause validity. The first two standards were 
part of the same formulation. ``The test may be stated as follows: what 
are the purpose and the primary effect of the enactment? If either is 
the advancement or inhibition of religion then the enactment exceeds the 
scope of legislative power as circumscribed by the Constitution. That is 
to say that to withstand the strictures of the Establishment Clause 
there must be a secular legislative purpose and a primary effect that 
neither advances nor inhibits religion.''\20\ The third test is whether 
the governmental program results in ``an excessive government 
entanglement with religion. The test is inescapably one of degree . . . 
[T]he questions are whether the involvement is excessive, and whether it 
is a continuing one calling for official and continuing surveillance 
leading to an impermissible degree of entanglement.''\21\ In 1971 these 
three tests were combined and restated in Chief Justice Burger's opinion 
for the Court in Lemon v. Kurtzman,\22\ and are frequently referred to 
by reference to that case name.

        \15\16 The Writings of Thomas Jefferson 281 (A. Libscomb ed., 
        \16\98 U.S. 145, 164 (1879).
        \17\Everson v. Board of Education, 330 U.S. 1, 16 (1947); 
Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 211, 212 
(1948); cf. Zorach v. Clauson, 343 U.S. 306, 317 (1952) (Justice Black 
dissenting). In Lemon v. Kurtzman, 403 U.S. 602, 614 (1971), Chief 
Justice Burger remarked that ``the line of separation, far from being a 
`wall,' is a blurred, indistinct and variable barrier depending on all 
the circumstances of a particular relationship.'' Similar observations 
were repeated by the Chief Justice in his opinion for the Court in Lynch 
v. Donnelly, 465 U.S. 668, 673 (1984) (the metaphor is not ``wholly 
accurate''; the Constitution does not ``require complete separation of 
church and state [but] affirmatively mandates accommodation, not merely 
tolerance, of all religions, and forbids hostility toward any'').
        \18\Zorach v. Clauson, 343 U.S. 306, 314 (1952); Engel v. 
Vitale, 370 U.S. 421 (1962); Sherbert v. Verner, 374 U.S. 398 (1963); 
Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Justice 
Goldberg concurring); Walz v. Tax Comm'n, 397 U.S. 664, 694-97 (1970) 
(Justice Harlan concurring). In the opinion of the Court in the latter 
case, Chief Justice Burger wrote: ``The course of constitutional 
neutrality in this area cannot be an absolutely straight line; rigidity 
could well defeat the basic purpose of these provisions, which is to 
insure that no religion be sponsored or favored, none commanded, and 
none inhibited. The general principle deducible from the First Amendment 
and all that has been said by the Court is this: that we will not 
tolerate either governmentally established religion or governmental 
interference with religion. Short of those expressly proscribed 
governmental acts there is room for play in the joints productive of a 
benevolent neutrality which will permit religious exercise to exist 
without sponsorship and without interference.'' Id. at 669.
        \19\Board of Education v. Allen, 392 U.S. 236, 249 (1968) 
(Justice Harlan concurring).
        \20\Abington School District v. Schempp, 374 U.S. 203, 222 
        \21\Walz v. Tax Comm'n, 397 U.S. 664, 674-75 (1970).
        \22\403 U.S. 602, 612-13 (1971).

        Although at one time accepted in principle by all of the 
Justices,\23\ the tests have sometimes been difficult to apply,\24\ have 
recently come under direct attack by some Justices,\25\ and in two in

[[Page 974]]
stances have not been applied at all by the Court.\26\ While continued 
application is uncertain, the Lemon tests nonetheless have served for 
twenty years as the standard measure of Establishment Clause validity 
and explain most of the Court's decisions in the area.\27\ As of the end 
of the Court's 1991-92 Term, there was not yet a consensus among Lemon 
critics as to what substitute test should be favored.\28\ Reliance on 
``coercion'' for that purpose would eliminate a principal distinction 
between establishment cases and free exercise cases and render the 
Establishment Clause largely duplicative of the Free Exercise 

        \23\E.g., Committee for Public Educ. & Religious Liberty v. 
Regan, 444 U.S. 646, 653 (1980), and id. at 665 (dissenting opinion); 
Stone v. Graham, 449 U.S. 39, 40 (1980), and id. at 43 (dissenting 
        \24\The tests provide ``helpful signposts,'' Hunt v. McNair, 413 
U.S. 734, 741 (1973), and are at best ``guidelines'' rather than a 
``constitutional caliper;'' they must be used to consider ``the 
cumulative criteria developed over many years and applying to a wide 
range of governmental action.'' Inevitably, ``no `bright line' guidance 
is afforded.'' Tilton v. Richardson, 403 U.S. 672, 677-78 (1971). See 
also Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 
756, 761 & n.5, 773 n.31 (1973); Committee for Public Educ. & Religious 
Liberty v. Regan, 444 U.S. 646, 662 (1980), and id. at 663 (Justice 
Blackmun dissenting).
        \25\See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636-40 (1987) 
(Justice Scalia, joined by Chief Justice Rehnquist, dissenting) 
(advocating abandonment of the ``purpose'' test); Wallace v. Jaffree, 
472 U.S. 38, 108-12 (1985) (Justice Rehnquist dissenting); Aguilar v. 
Felton, 473 U.S. 402, 426-30 (1985) (Justice O'Connor, dissenting) 
(addressing difficulties in applying the entanglement prong); Roemer v. 
Maryland Bd. of Public Works, 426 U.S. 736, 768-69 (Justice White 
concurring in judgment) (objecting to entanglement test). Justice 
Kennedy has also acknowledged criticisms of the Lemon tests, while at 
the samed time finding no need to reexamine them. See, e.g., Allegheny 
County v. Greater Pittsburgh ACLU, 492 U.S. 573, 655-56 (1989). At least 
with respect to public aid to religious schools, Justice Stevens would 
abandon the tests and simply adopt a ``no-aid'' position. Committee for 
Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671 (1980).
        \26\See Marsh v. Chambers, 463 U.S. 783 (1983) (upholding 
legislative prayers on the basis of historical practice); Lee v. 
Weisman, 112 S. Ct. 2649, 2655 (1992) (rejecting a request to reconsider 
Lemon because the practice of invocations at public high school 
graduations was invalid under established school prayer precedents). The 
Court has also held that the tripartite test is not applicable when law 
grants a denominational preference, distinguishing between religions; 
rather, the distinction is to be subjected to the strict scrutiny of a 
suspect classification. Larson v. Valente, 456 U.S. 228, 244-46 (1982).
        \27\Justice Blackmun, concurring in Lee, contended that Marsh 
was the only one of 31 Establishment cases between 1971 and 1992 not to 
be decided on the basis on the Lemon tests. 112 S. Ct. at 2663, n.4.
        \28\In 1990 Justice Kennedy, joined by Justice Scalia, proposed 
that ``neutral'' accommodations of religion should be permissible so 
long as they do not establish a state religion, and so long as there is 
no ``coercion'' to participate in religious exercises. Westside 
Community Bd. of Educ. v. Mergens, 496 U.S. 226, 260-61. The two 
Justices parted company, however, over the permissiblity of invocations 
at public high school graduation ceremonies, Justice Scalia in dissent 
strongly criticizing Justice Kennedy's approach in the opinion of the 
Court for its reliance on psychological coercion. Justice Scalia would 
not ``expand[ ] the concept of coercion beyond acts backed by threat of 
penalty.'' Lee v. Weisman, 112 S. Ct. 2649, 2684 (1992). Chief Justice 
Rehnquist has advocated limiting application to a prohibition on 
establishing a national (or state) church or favoring one religious 
group over another. Wallace v. Jaffree, 472 U.S. 38, 98, 106 (1985) 
        \29\Abington School District v. Schempp, 374 U.S. 203, 222-23 
(1963). See also Board of Education v. Allen, 392 U.S. 236, 248-49 
(1968); and Tilton v. Richardson, 403 U.S. 672, 689 (1971); Lee v. 
Weisman, 112 S. Ct. 2649, 2673 (Justice Souter concurring) (``a literal 
application of the coercion test would render the Establishment Clause a 
virtual nullity'').

        Government Neutrality in Religious Disputes.--One value that 
both clauses of the religion section serve is to enforce governmental 
neutrality in deciding controversies arising out of religious disputes. 
Schism sometimes develops within churches or between a local church and 
the general church, resulting in secession or expulsion of one faction 
or of the local church. A dispute over which body is to have control of 
the property of the church will then often be taken into the courts. It 
is now established that both religion clauses prevent governmental 
inquiry into religious doctrine in settling such disputes, and instead 
require courts simply to look to the decision-making body or process in 
the church and to give effect to whatever decision is officially and 
properly made.

[[Page 975]]

        The first such case was Watson v. Jones,\30\ which was decided 
on common-law grounds in a diversity action without explicit reliance on 
the First Amendment. A constitutionalization of the rule was made in 
Kedroff v. St. Nicholas Cathedral,\31\ in which the Court held 
unconstitutional a state statute that recognized the autonomy and 
authority of those North American branches of the Russian Orthodox 
Church which had declared their independence from the general church. 
Recognizing that Watson v. Jones had been decided on nonconstitutional 
grounds, the Court thought nonetheless that the opinion ``radiates . . . 
a spirit of freedom for religious organizations, and independence from 
secular control or manipulation--in short, power to decide for 
themselves, free from state interference, matters of church government 
as well as those of faith and doctrine.''\32\ The power of civil courts 
to resolve church property disputes was severely circumscribed, the 
Court held, because to permit resolution of doctrinal disputes in court 
was to jeopardize First Amendment values. What a court must do, it was 
held, is to look at the church rules: if the church is a hierarchical 
one which reposes determination of ecclesiastical issues in a certain 
body, the resolution by that body is determinative, while if the church 
is a congregational one prescribing action by a majority vote, that 
determination will prevail.\33\ On the other hand, a court confronted 
with a church property dispute could apply ``neutral principles of law, 
developed for use in all property disputes,'' when to do so would not 
require resolution of doctrinal issues.\34\ In a later case the Court 
elaborated on the limits of proper inquiry, holding that an argument 
over a matter of internal church government, the power to reorganize the 
dioceses of a hierarchical church in this country, was ``at the core of 
ecclesiastical affairs'' and a court could not interpret the church 
constitution to make an inde

[[Page 976]]
pendent determination of the power but must defer to the interpretation 
of the body authorized to decide.\35\

        \30\80 U.S. (13 Wall.) 679 (1872).
        \31\344 U.S. 94 (1952). Kedroff was grounded on the Free 
Exercise Clause. Id. at 116. But the subsequent cases used a collective 
``First Amendment'' designation.
        \32\Id. at 116. On remand, the state court adopted the same 
ruling on the merits but relied on a common-law rule rather than the 
statute. This too was struck down. Kreshik v. St. Nicholas Cathedral, 
363 U.S. 190 (1960).
        \33\Presbyterian Church v. Hull Memorial Presbyterian Church, 
393 U.S. 440, 447, 450-51 (1969); Maryland and Virginia Eldership of the 
Churches of God v. Church of God at Sharpsburg, 396 U.S. 367 (1970). For 
a similar rule of neutrality in another context, see United States v. 
Ballard, 322 U.S. 78 (1944) (denying defendant charged with mail fraud 
through dissemination of purported religious literature the right to 
present to the jury evidence of the truthfulness of the religious views 
he urged).
        \34\Presbyterian Church v. Hull Memorial Presbyterian Church, 
393 U.S. 440, 449 (1969); Maryland and Virginia Eldership of the 
Churches of God v. Church of God of Sharpsburg, 396 U.S. 367, 368 
(1970). See also id. at 368-70 (Justice Brennan concurring).
        \35\The Serbian Eastern Orthodox Diocese v. Dionisije 
Milivojevich, 426 U.S. 697, 720-25 (1976). In Gonzalez v. Archbishop, 
280 U.S. 1 (1929), the Court had permitted limited inquiry into the 
legality of the actions taken under church rules. The Serbian Eastern 
Court disapproved of this inquiry with respect to concepts of 
``arbitrariness,'' although it reserved decision on the ``fraud'' and 
``collusion'' exceptions. 426 U.S. at 708-20.

        In Jones v. Wolf,\36\ however, a divided Court, while formally 
adhering to these principles, appeared to depart in substance from their 
application. A schism had developed in a local church which was a member 
of a hierarchical church, and the majority voted to withdraw from the 
general church. The proper authority of the general church determined 
that the minority constituted the ``true congregation'' of the local 
church and awarded them authority over it. The Court approved the 
approach of the state court in applying neutral principles by examining 
the deeds to the church property, state statutes, and provisions of the 
general church's constitution concerning ownership and control of church 
property in order to determine that no language of trust in favor of the 
general church was contained in any of them and that the property thus 
belonged to the local congregation.\37\ Further, the Court held, the 
First Amendment did not prevent the state court from applying a 
presumption of majority rule to award control to the majority of the 
local congregation, provided that it permitted defeasance of the 
presumption upon a showing that the identity of the local church is to 
be determined by some other means as expressed perhaps in the general 
church charter.\38\ The dissent argued that to permit a court narrowly 
to view only the church documents relating to property ownership 
permitted the ignoring of the fact that the dispute was over 
ecclesiastical matters and that the general church had decided which 
faction of the congregation was the local church.\39\

        \36\443 U.S. 595 (1979). In the majority were Justices Blackmun, 
Brennan, Marshall, Rehnquist, and Stevens. Dissenting were Justices 
Powell, Stewart, White, and Chief Justice Burger.
        \37\Id. at 602-06.
        \38\Id. at 606-10. Because it was unclear whether the state 
court had applied such a rule and applied it properly, the Court 
        \39\Id. at 610.

        Thus, it is unclear where the Court is on this issue. Jones v. 
Wolf restated the rule that it is improper to review an ecclesiastical 
dispute and that deference is required in those cases, but by approving 
a neutral principles inquiry which in effect can filter out the 
doctrinal issues underlying a church dispute, the Court seems

[[Page 977]]
to have approved at least an indirect limitation of the authority of 
hierarchical churches.\40\

        \40\The Court indicated that the general church could always 
expressly provide in its charter or in deeds to property the proper 
disposition of disputed property. But here the general church had 
decided which faction was the ``true congregation,'' and this would 
appear to constitute as definitive a ruling as the Court's suggested 
alternatives. Id. at 606.
      Establishment of Religion

        ``[F]or the men who wrote the Religion Clauses of the First 
Amendment the `establishment' of a religion connoted sponsorship, 
financial support, and active involvement of the sovereign in religious 
activity.''\41\ However, the Court's reading of the clause has never 
resulted in the barring of all assistance which aids, however 
incidentally, a religious institution. Outside this area, the decisions 
generally have more rigorously prohibited what may be deemed 
governmental promotion of religious doctrine.

        \41\Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970). ``Two great 
drives are constantly in motion to abridge, in the name of education, 
the complete division of religion and civil authority which our 
forefathers made. One is to introduce religious education and 
observances into the public schools. The other, to obtain public funds 
for the aid and support of various private religious schools. . . . In 
my opinion both avenues were closed by the Constitution.'' Everson v. 
Board of Education, 330 U.S. 1, 63 (1947) (Justice Rutledge dissenting).

        Financial Assistance to Church-Related Institutions.--The 
Court's first opportunity to rule on the validity of governmental 
financial assistance to a religiously affiliated institution occurred in 
1899, the assistance being a federal grant for the construction of a 
hospital owned and operated by a Roman Catholic order. The Court viewed 
the hospital as a secular institution so chartered by Congress and not 
as a religious or sectarian body, thus avoiding the constitutional 
issue.\42\ But when the right of local authorities to provide free 
transportation for children attending parochial schools reached the 
Court, it adopted very restrictive language. ``The `establishment of 
religion' clause of the First Amendment means at least this: Neither a 
state nor the Federal Government can set up a church. Neither can pass 
laws which aid one religion, aid all religions, or prefer one religion 
over another. Neither can force nor influence a person to go to or to 
remain away from church against his will or force him to profess a 
belief or disbelief in any religion. No person can be punished for 

[[Page 978]]
or professing religious beliefs or disbeliefs, for church attendance or 
non-attendance. No tax in any amount, large or small, can be levied to 
support any religious activities or institutions, whatever they may be 
called, or whatever form they may adopt to teach or practice religion. 
Neither a state nor the Federal Government can, openly or secretly, 
participate in the affairs of any religious organizations or groups and 
vice versa. In the words of Jefferson, the clause against establishment 
of religion by law was intended to erect `a wall of separation between 
church and State.'''\43\ But the majority sustained the provision of 
transportation. While recognizing that ``it approaches the verge'' of 
the State's constitutional power, still, Justice Black thought, the 
transportation was a form of ``public welfare legislation'' which was 
being extended ``to all its citizens without regard to their religious 
belief.''\44\ ``It is undoubtedly true that children are helped to get 
to church schools. There is even a possibility that some of the children 
might not be sent to the church schools if the parents were compelled to 
pay their children's bus fares out of their own pockets when 
transportation to a public school would have been paid for by the 
State.''\45\ Transportation benefited the child, just as did police 
protection at crossings, fire protection, connections for sewage 
disposal, public highways and sidewalks. Thus was born the ``child 
benefit'' theory.\46\

        \42\Bradfield v. Roberts, 175 U.S. 291 (1899). Cf. Abington 
School District v. Schempp, 374 U.S. 203, 246 (1963) (Justice Brennan 
concurring). In Cochran v. Board of Education, 281 U.S. 370 (1930), a 
state program furnishing textbooks to parochial schools was sustained 
under a due process attack without reference to the First Amendment. See 
also Quick Bear v. Leupp, 210 U.S. 50 (1908) (statutory limitation on 
expenditures of public funds for sectarian education does not apply to 
treaty and trust funds administered by the Government for Indians).
        \43\Everson v. Board of Education, 330 U.S. 1, 15-16 (1947).
        \44\Id. at 16.
        \45\Id. at 17. It was in Everson that the Court, without much 
discussion of the matter, held that the Establishment Clause applied to 
the States through the Fourteenth Amendment and limited both national 
and state governments equally. Id. at 8, 13, 14-16. The issue is 
discussed at some length by Justice Brennan in Abington School Dist. v. 
Schempp, 374 U.S. 203, 253-58 (1963).
        \46\And see Zorach v. Clauson, 343 U.S. 306, 312-13 (1952) 
(upholding program allowing public schools to excuse students to attend 
religious instruction or exercises).

        The Court in 1968 relied on the ``child benefit'' theory to 
sustain state loans of textbooks to parochial school students.\47\ 
Utilizing the secular purpose and effect tests,\48\ the Court determined 
that the purpose of the loans was the ``furtherance of the educational 
opportunities available to the young,'' while the effect was hardly less 
secular. ``The law merely makes available to all children the benefits 
of a general program to lend school books free of charge. Books are 
furnished at the request of the pupil and ownership remains, at least 
technically, in the State. Thus no funds or books are furnished to 
parochial schools, and the financial benefit is to parents and children, 
not to schools. Perhaps free books make it more likely that some 
children choose to attend a sectarian

[[Page 979]]
school, but that was true of the state-paid bus fares in Everson and 
does not alone demonstrate an unconstitutional degree of support for a 
religious institution.''\49\

        \47\Board of Education v. Allen, 392 U.S. 236 (1968).
        \48\Supra, p.973.
        \49\392 U.S. at 243-44 (1968).

        From these beginnings, the case law on the discretion of state 
and federal governmental assistance to sectarian elementary and 
secondary schools has multiplied. Through the 1970s, at least, the law 
became as restrictive in fact as the dicta in the early cases suggested, 
save for the provision of some assistance to children under the ``child 
benefit'' theory. Recent decisions evince a somewhat more accommodating 
approach permitting public assistance if the religious missions of the 
recipient schools may be only marginally served, or if the directness of 
aid to the schools is attenuated by independent decisions of parents who 
receive the aid initially. Throughout, the Court has allowed greater 
discretion when colleges affiliated with religious institutions are 
aided. Moreover, the opinions reveal a deep division among the Justices 
over the application of the Lemon tripartite test to these 

        A secular purpose is the first requirement to sustain the 
validity of legislation touching upon religion, and upon this standard 
the Justices display little disagreement. There are adequate legitimate, 
non-sectarian bases for legislation to assist nonpublic, religious 
schools: preservation of a healthy and safe educational environment for 
all school children, promotion of pluralism and diversity among public 
and nonpublic schools, and prevention of overburdening of the public 
school system that would accompany the financial failure of private 

        \50\Committee for Public Educ. & Religious Liberty v. Nyquist, 
413 U.S. 756, 773 (1973). See also id. at 805 (Chief Justice Burger 
dissenting), 812-13 (Justice Rehnquist dissenting), 813 (Justice White 
dissenting). And see Wolman v. Walter, 433 U.S. 229, 240 (1977) 
(plurality opinion); Committee for Public Educ. & Religious Liberty v. 
Regan, 444 U.S. 646, 653-654 (1980), and id. at 665 (Justice Blackmun 

        Varied views have been expressed by the Justices, however, upon 
the tests of secular primary effect and church-state entanglement. As to 
the former test, the Court has formulated no hard-and-fast standard 
permitting easy judgment in all cases.\51\ In providing

[[Page 980]]
assistance, government must avoid aiding the religious mission of such 
schools directly or indirectly. Thus, for example, funds may not be 
given to a sectarian institution without restrictions that would prevent 
their use for such purposes as defraying the costs of building or 
maintaining chapels or classrooms in which religion is taught.\52\ Loan 
of substantial amounts of purely secular educational materials to 
sectarian schools can also result in impermissible advancement of 
sectarian activity where secular and sectarian education are 
inextricably intertwined.\53\ Even the provision of secular services in 
religious schools raises the possibility that religious instruction 
might be introduced into the class and is sufficient to condemn a 
program.\54\ The extent to which the religious mission of the entity is 
inextricably intertwined with the secular mission and the size of the 
assistance furnished are factors for the reviewing court to 
consider.\55\ But the fact that public aid to further secular purposes 
of the school will necessarily ``free up'' some of the institution's 
funds which it may apply to its religious mission is not alone 
sufficient to condemn the program.\56\ Rather, it must always be 
determined whether the religious effects are substantial or whether they 
are remote and incidental.\57\ Upon that determination and

[[Page 981]]
upon the guarantees built into any program to assure that public aid is 
used exclusively for secular, neutral, and nonideological purposes rests 
the validity of public assistance.

        \51\Justice White has argued that the primary effect test 
requires the Court to make an ``ultimate judgment'' whether the primary 
effect of a program advances religion. If the primary effect is secular, 
i.e., keeping the parochial school system alive and providing adequate 
secular education to substantial numbers of students, then the 
incidental benefit to religion was only secondary and permissible. 
Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 
822-24 (1973) (dissenting). The Court rejected this view: ``[o]ur cases 
simply do not support the notion that a law found to have a `primary' 
effect to promote some legitimate end under the State's police power is 
immune from further examination to ascertain whether it also has the 
direct and immediate effect of advancing religion.'' Id. at 873 n.39.
        \52\Committee for Public Educ. & Religious Liberty v. Nyquist, 
413 U.S. 756, 774-80 (1973).
        \53\Meek v. Pittenger, 421 U.S. 349, 362-66 (1975). See also 
Wolman v. Walter, 433 U.S. 229, 248-51 (1977) (loan of same 
instructional material and equipment to pupils or their parents).
        \54\Compare Meek v. Pittenger, 421 U.S. 349, 367-72 (1975), with 
Wolman v. Walter, 433 U.S. 229, 238-48 (1977) and Committee for Public 
Educ. & Religious Liberty v. Regan, 444 U.S. 646, 654-57 (1980).
        \55\Lemon v. Kurtzman, 403 U.S. 602, 616-19 (1971). The 
existence of what the Court perceived to be massive aid and of religion-
pervasive recipients constituted a major backdrop in Committee for 
Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973), and 
Meek v. Pittenger, 421 U.S. 349 (1973). When the aid is more selective 
and its permissible use is cabined sufficiently, the character of the 
institution assumes less importance. Committee for Public Educ. & 
Religious Liberty v. Regan, 444 U.S. 646, 661-62 (1980). When the entity 
is an institution of higher education, the Court appears less concerned 
with its religious character but it still evaluates the degree to which 
it is pervasively sectarian. Hunt v. McNair, 413 U.S. 734 (1973); Roemer 
v. Maryland Public Works Bd., 426 U.S. 736 (1976).
        \56\Committee for Public Educ. & Religious Liberty v. Regan, 444 
U.S. 646, 658-59 (1980).
        \57\The form which the assistance takes may have little to do 
with the determination. One group of Justices has argued that when the 
assistance is given to parents, the dangers of impermissible primary 
effect and entanglement are avoided and it should be approved. Committee 
for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 801-05 
(1973) (dissenting). The Court denied a controlling significance to 
delivery of funds to parents rather than schools; government must always 
ensure a secular use. Id. at 780. Another group of Justices has argued 
that the primary effect test does not permit direct financial support to 
sectarian schools, Committee for Public Educ. & Religious Liberty v. 
Regan, 444 U.S. 646, 665-69 (1980) (dissenting), but the Court held that 
provision of direct aid with adequate assurances of nonreligious use 
does not constitute a forbidden primary effect. Id. at 661-62. More 
recently, in Mueller v. Allen, 463 U.S. 388 (1983), the views of the 
first group noted above controlled.

        The greater the necessity of policing the entity's use of public 
funds to ensure secular effect, the greater the danger of impermissible 
entanglement of government with religious matters. Any scheme that 
requires detailed and continuing oversight of the schools and that 
requires the entity to report to and justify itself to public authority 
has the potential for impermissible entanglement.\58\ However, where the 
nature of the assistance is such that furthering of the religious 
mission is unlikely and the public oversight is concomitantly less 
intrusive, a review may be sustained.\59\

        \58\Lemon v. Kurtzman, 403 U.S. 602, 619-20, 621-22 (1971); Meek 
v. Pittenger, 421 U.S. 349, 367-72 (1975); Wolman v. Walter, 433 U.S. 
229, 254-55 (1977). Another aspect of entanglement identified by the 
Court is the danger that an aid program would encourage continuing 
political strife through disputes over annual appropriations and 
enlargements of programs. Lemon, 403 U.S. at 622-24; Committee for 
Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794-98 
(1973); Meek, 421 U.S. at 372. This concern appeared to have lessened 
somewhat in subsequent cases. Roemer v. Maryland Public Works Board, 426 
U.S. 736, 763-66 (1976); Committee for Public Educ. & Religious Liberty 
v. Regan, 444 U.S. 646, 661 n.8 (1980).
        \59\ Committee for Public Educ. & Religious Liberty v. Regan, 
444 U.S. 646, 659-61 (1980); Wolman v. Walter, 433 U.S. 229, 240-41, 
242-44, 248 (1977).

        Thus, government aid which is directed toward furthering secular 
interests in the welfare of the child or the nonreligious functions of 
the entity will generally be permitted where the entity is not so 
pervasively religious that secular and sectarian activities may not be 
separated. But no mere statement of rules can adequately survey the 

        Substantial unanimity, at least in result, has prevailed among 
the Justices in dealing with direct financial assistance to sectarian 
schools, as might have been expected from the argument over the primary 
effect test.\60\ State aid to church-connected schools was first found 
to have gone over the ``verge''\61\ in Lemon v. Kurtzman.\62\ Involved 
were two state statutes, one of which authorized the ``purchase'' of 
secular educational services from nonpublic elementary and secondary 
schools, a form of reimbursement for the cost to religious schools of 
the teaching of such things as mathematics, modern foreign languages, 
and physical sciences, and the other of which provided salary 
supplements to nonpublic school teachers who taught courses similar to 
those found in public

[[Page 982]]
schools, used textbooks approved for use in public schools, and agreed 
not to teach any classes in religion. Accepting the secular purpose 
attached to both statutes by the legislature, the Court did not pass on 
the secular effect test, inasmuch as excessive entanglement was found. 
This entanglement arose because the legislature ``has not, and could 
not, provide state aid on the basis of a mere assumption that secular 
teachers under religious discipline can avoid conflicts. The State must 
be certain, given the Religion Clauses, that subsidized teachers do not 
inculcate religion.''\63\ Because the schools concerned were religious 
schools, because they were under the control of the church hierarchy, 
because the primary purpose of the schools was the propagation of the 
faith, a ``comprehensive, discriminating, and continuing state 
surveillance will inevitably be required to ensure that these 
restrictions [on religious utilization of aid] are obeyed and the First 
Amendment otherwise respected.''\64\ Moreover, the provision of public 
aid inevitably will draw religious conflict into the public arena as the 
contest for adequate funding goes on. Thus, the Court held, both 
programs were unconstitutional because the state supervision necessary 
to ensure a secular purpose and a secular effect inevitably involved the 
state authorities too deeply in the religious affairs of the aided 

        \60\But see discussion infra p., on the Court's recent approval 
of the Adolescent Family Life Act, involving direct grants to religious 
        \61\Everson v. Board of Education, 330 U.S. 1, 16 (1947).
        \62\403 U.S. 602 (1971).
        \63\Id. at 619.
        \65\Only Justice White dissented. Id. at 661. In Lemon v. 
Kurtzman, 411 U.S. 192 (1973), the Court held that the State could 
reimburse schools for expenses incurred in reliance on the voided 
program up to the date the Supreme Court held the statute 
unconstitutional. But see New York v. Cathedral Academy, 434 U.S. 125 

        Two programs of assistance through provision of equipment and 
services to private, including sectarian, schools were invalidated in 
Meek v. Pittenger.\66\ First, the loan of instructional material and 
equipment directly to qualifying nonpublic elementary and secondary 
schools was voided as an impermissible extension of assistance of 
religion. This conclusion was reached on the basis that 75 percent of 
the qualifying schools were church-related or religiously affiliated 
educational institutions and the assistance was available without regard 
to the degree of religious activity of the schools. The materials and 
equipment loaned were religiously neutral, but the substantial 
assistance necessarily constituted aid to the sectarian school 
enterprise as a whole and thus had a primary effect of advancing 
religion.\67\ Second, the provision of auxiliary

[[Page 983]]
services--remedial and accelerated instruction, guidance counseling and 
testing, speech and hearing services--by public employees on nonpublic 
school premises was invalidated because the Court thought the program 
had to be policed closely to ensure religious neutrality and it saw no 
way that could be done without impermissible entanglement. The fact that 
the teachers would, under this program and unlike one of the programs 
condemned in Lemon v. Kurtzman, be public employees rather than 
employees of the religious schools and possibly under religious 
discipline was insufficient to permit the State to fail to make certain 
that religion was not inculcated by subsidized teachers.\68\

        \66\421 U.S. 349 (1975). Chief Justice Burger and Justices 
Rehnquist and White dissented. Id. at 385, 387.
        \67\Id. at 362-66. See also Wolman v. Walter, 433 U.S. 229, 248-
51 (1977). The Court in Committee for Public Educ. & Religious Liberty 
v. Regan, 444 U.S. 646, 661-62 (1980), held that Meek did not forbid all 
aid that benefited religiously pervasive schools to some extent, so long 
as it was conferred in such a way as to prevent any appreciable risk of 
being used to transmit or teach religious views. See also Wolman v. 
Walter, supra at 262 (Justice Powell concurring in part and dissenting 
in part).
        \68\Meek v. Pittenger, 421 U.S. 349, 367-72 (1975). But see 
Wolman v. Walter, 433 U.S. 229, 238-48 (1977).

        The Court in two 1985 cases again struck down programs of public 
subsidy of instructional services provided on the premises of sectarian 
schools, and relied on the effects test as well as the entanglement 
test. In Grand Rapids School District v. Ball,\69\ the Court invalidated 
two programs conducted in leased private school classrooms, one taught 
during the regular school day by public school teachers,\70\ and the 
other taught after regular school hours by part-time ``public'' teachers 
otherwise employed as full-time teachers by the sectarian school.\71\ 
Both programs, the Court held, had the effect of promoting religion in 
three distinct ways. The teachers might be influenced by the 
``pervasively sectarian nature'' of the environment and might ``subtly 
or overtly indoctrinate the students in particular religious tenets at 
public expense''; use of the parochial school classrooms ``threatens to 
convey a message of state support for religion'' through ``the symbolic 
union of government and religion in one sectarian enterprise''; and 
``the programs in effect subsidize the religious functions of the 
parochial schools by taking over a substantial portion of their 
responsibility for teaching secular subjects.''\72\ In Aguilar v. 
Felton,\73\ the Court invalidated a

[[Page 984]]
program under which public school employees provided instructional 
services on parochial school premises to educationally deprived 
children. The program differed from those at issue in Grand Rapids 
because the classes were closely monitored for religious content. This 
``pervasive monitoring'' did not save the program, however, because, by 
requiring close cooperation and day-to-day contact between public and 
secular authorities, the monitoring ``infringes precisely those 
Establishment Clause values at the root of the prohibition of excessive 

        \69\473 U.S. 373 (1985).
        \70\The vote on this ``Shared Time'' program was 5-4, the 
opinion of the Court by Justice Brennan being joined by Justices 
Marshall, Blackmun, Powell, and Stevens. The Chief Justice, and Justices 
White, Rehnquist, and O'Connor dissented.
        \71\The vote on this ``Community Education'' program was 7-2, 
Chief Justice Burger and Justice O'Connor concurring with the ``Shared 
Time'' majority.
        \72\473 U.S. at 397.
        \73\473 U.S. 402 (1985). This was another 5-4 decision, with 
Justice Brennan's opinion of the Court being joined by Justices 
Marshall, Blackmun, Powell, and Stevens, and with Chief Justice Burger 
and Justices White, Rehnquist, and O'Connor dissenting.
        \74\473 U.S. at 413.

        A state program to reimburse nonpublic schools for a variety of 
services mandated by state law was voided because the statute did not 
distinguish between secular and potentially religious services the costs 
of which would be reimbursed.\75\ Similarly, a program of direct 
monetary grants to nonpublic schools to be used for the maintenance of 
school facilities and equipment failed to survive the primary effect 
test because it did not restrict payment to those expenditures related 
to the upkeep of facilities used exclusively for secular purposes and 
because ``within the context of these religion-oriented institutions'' 
the Court could not see how such restrictions could effectively be 
imposed.\76\ But a plan of direct monetary grants to nonpublic schools 
to reimburse them for the costs of state-mandated record-keeping and of 
administering and grading state-prepared tests and which contained 
safeguards against religious utilization of the tests was sustained even 
though the Court recognized the incidental benefit to the schools.\77\

        \75\Levitt v. Committee for Public Educ. & Religious Liberty, 
413 U.S. 472 (1973). Justice White dissented, Id. at 482. Among the 
services reimbursed was the cost of preparing and grading examinations 
in the nonpublic schools by the teachers there. In New York v. Cathedral 
Academy, 434 U.S. 125 (1977), the Court struck down a new statutory 
program entitling private schools to obtain reimbursement for expenses 
incurred during the school year in which the prior program was voided in 
        \76\Committee for Public Educ. & Religious Liberty v. Nyquist, 
413 U.S. 756, 774-80 (1973). Chief Justice Burger and Justice Rehnquist 
concurred, Id. at 798, and Justice White dissented. Id. at 820.
        \77\Committee for Public Educ. & Religious Liberty v. Regan, 444 
U.S. 646 (1980). Justices Blackmun, Brennan, Marshall, and Stevens 
dissented. Id. at 662, 671. The dissenters thought that the 
authorization of direct reimbursement grants was distinguishable from 
previously approved plans that had merely relieved the private schools 
of the costs of preparing and grading state-prepared tests. See Wolman 
v. Walter, 433 U.S. 229, 238-41 (1977).

        The ``child benefit'' theory, under which it is permissible for 
government to render ideologically neutral assistance and services to 
pupils in sectarian schools without being deemed to be aiding the 
religious mission of the schools, has not proved easy to apply. A number 
of different forms of assistance to students were at issue

[[Page 985]]
in Wolman v. Walter.\78\ The Court approved the following: standardized 
tests and scoring services used in the public schools, with private 
school personnel not involved in the test drafting and scoring; speech, 
hearing, and psychological diagnostic services provided in the private 
schools by public employees; and therapeutic, guidance, and remedial 
services for students provided off the premises of the private schools. 
In all these, the Court thought the program contained adequate built-in 
protections against religious utilization. But while the Court adhered 
to its ruling permitting the States to loan secular textbooks used in 
the public schools to pupils attending religious schools,\79\ it 
declined to extend the precedent to permit the loan to pupils or their 
parents of instructional materials and equipment, such as projectors, 
tape recorders, maps, globes and science kits, although they were 
identical to those used in the public schools.\80\ Nor was a State 
permitted to expend funds to pay the costs to religious schools of field 
trip transportation such as was provided to public school students.\81\

        \78\433 U.S. 229 (1977). The Court deemed the situation in which 
these services were performed and the nature of the services to occasion 
little danger of aiding religious functions and thus requiring little 
supervision that would give rise to entanglement. All the services fell 
``within that class of general welfare services for children that may be 
provided by the States regardless of the incidental benefit that accrues 
to church-related schools.'' Id. at 243, quoting Meek v. Pittenger, 421 
U.S. 349, 371 n. 21 (1975). Justice Brennan would have voided all the 
programs because, considered as a whole, the amount of assistance was so 
large as to constitute assistance to the religious mission of the 
schools. Id. at 433 U.S. at 255. Justice Marshall would have approved 
only the diagnostic services, id. at 256, while Justice Stevens would 
generally approve closely administered public health services. Id. at 
        \79\Meek v. Pittenger, 421 U.S. 349, 359-72 (1975); Wolman v. 
Walter, 433 U.S. 229, 236-38 (1977). Allen was explained as resting on 
``the unique presumption'' that ``the educational content of textbooks 
is something that can be ascertained in advance and cannot be diverted 
to sectarian uses.'' There was ``a tension'' between Nyquist, Meek, and 
Wolman, on the one hand, and Allen on the other; while Allen was to be 
followed ``as a matter of stare decisis,'' the ``presumption of 
neutrality'' embodied in Allen would not be extended to other similar 
assistance. Id. at 251 n.18. A more recent Court majority revived the 
Allen presumption, however, applying it to uphold tax deductions for 
tuition and other school expenses in Mueller v. Allen, 463 U.S. 388 
(1983). Justice Rehnquist wrote the Court's opinion, joined by Justices 
White, Powell, and O'Connor, and by Chief Justice Burger.
        \80\433 U.S. at 248-51. See also id. at 263-64 (Justice Powell 
concurring in part and dissenting in part).
        \81\Id. at 252-55. Justice Powell joined the other three 
dissenters who would have approved this expenditure. Id. at 264.

        Substantially similar programs from New York and Pennsylvania 
providing for tuition reimbursement aid to parents of religious school 
children were struck down in 1973. New York's program provided 
reimbursements out of general tax revenues for tuition paid by low-
income parents to send their children to nonpublic elementary and 
secondary schools; the reimbursements were of fixed amounts but could 
not exceed 50 percent of actual tuition paid.

[[Page 986]]
Pennsylvania provided fixed-sum reimbursement for parents who send their 
children to nonpublic elementary and secondary schools, so long as the 
amount paid did not exceed actual tuition, the funds to be derived from 
cigarette tax revenues. Both programs, it was held, constituted public 
financial assistance to sectarian institutions with no attempt to 
segregate the benefits so that religion was not advanced.\82\

        \82\Committee for Public Educ. & Religious Liberty v. Nyquist, 
413 U.S. 756, 789-798 (1973) (New York); Sloan v. Lemon, 413 U.S. 825 
(1973) (Pennsylvania). The Court distinguished Everson and Allen on the 
grounds that in those cases the aid was given to all children and their 
parents and that the aid was in any event religiously neutral, so that 
any assistance to religion was purely incidental. 413 U.S. at 781-82. 
Chief Justice Burger thought that Everson and Allen were controlling. 
Id. at 798.

        New York had also enacted a separate program providing tax 
relief for low-income parents not qualifying for the tuition 
reimbursements; here relief was in the form of a deduction or credit 
bearing no relationship to the amounts of tuition paid, but keyed 
instead to adjusted gross income. This too was invalidated in Nyquist. 
``In practical terms there would appear to be little difference, for 
purposes of determining whether such aid has the effect of advancing 
religion, between the tax benefit allowed here and the tuition 
[reimbursement] grant. . . . The qualifying parent under either program 
receives the same form of encouragement and reward for sending his 
children to nonpublic schools. The only difference is that one parent 
receives an actual cash payment while the other is allowed to reduce by 
an arbitrary amount the sum he would otherwise be obliged to pay over to 
the State. We see no answer to Judge Hays' dissenting statement below 
that `[i]n both instances the money involved represents a charge made 
upon the state for the purpose of religious education.'''\83\ Some 
difficulty, however, was experienced in distinguishing this program from 
the tax exemption approved in Walz.\84\

        \83\Committee for Public Educ. & Religious Liberty v. Nyquist, 
413 U.S. 756, 789-94 (1973). The quoted paragraph is id. 790-91.
        \84\Id. at 791-94. Principally, Walz was said to be different 
because of the age of exemption there dealt with, because the Walz 
exemption was granted in the spirit of neutrality while the tax credit 
under consideration was not, and the fact that the Walz exemption 
promoted less entanglement while the credit would promote more.

        Two subsidiary arguments were rejected by the Court in these 
cases. First, it had been argued that the tuition reimbursement program 
promoted the free exercise of religion in that it permitted low-income 
parents desiring to send their children to school in accordance with 
their religious views to do so. The Court agreed that ``tension 
inevitably exists between the Free Exercise and the Establishment 
Clauses,'' but explained that the tension is ordinarily re

[[Page 987]]
solved through application of the ``neutrality'' principle: government 
may neither advance nor inhibit religion. The tuition program 
inescapably advanced religion and thereby violated this principle.\85\ 
In the Pennsylvania case, it was argued that because the program 
reimbursed parents who sent their children to nonsectarian schools as 
well as to sectarian ones, the portion respecting the former parents was 
valid and ``parents of children who attended sectarian schools are 
entitled to the same aid as a matter of equal protection. The argument 
is thoroughly spurious. . . . The Equal Protection Clause has never been 
regarded as a bludgeon with which to compel a State to violate other 
provisions of the Constitution.''\86\

        \85\Id. at 788-89. But cf. Lynch v. Donnelly, 465 U.S. 668, 673 
(1984) (due to Free Exercise Clause, Constitution ``affirmatively 
mandates accommodation, not merely tolerance, of all religions'').
        \86\Sloan v. Lemon, 413 U.S. 825, 833-35 (1973). In any event, 
the Court sustained the district court's refusal to sever the program 
and save that portion as to children attending non-sectarian schools on 
the basis that since so large a portion of the children benefitted 
attended religious schools it could not be assumed the legislature would 
have itself enacted such a limited program.
        In Wheeler v. Barrera, 417 U.S. 402 (1974), the Court held that 
States receiving federal educational funds were required by federal law 
to provide ``comparable'' but not equal services to both public and 
private school students within the restraints imposed by state 
constitutional restrictions on aid to religious schools. In the absence 
of specific plans, the Court declined to review First Amendment 
limitations on such services.

        The Nyquist holding was substantially undermined in 1983, the 
Court taking a more accommodationist approach toward indirect subsidy of 
parochial schools. In Mueller v. Allen,\87\ the Court upheld a Minnesota 
deduction from state income tax available to parents of elementary and 
secondary school children for expenses incurred in providing tuition, 
transportation, textbooks, and various other school supplies. Because 
the Minnesota deduction was available to parents of public and private 
schoolchildren alike, the Court termed it ``vitally different from the 
scheme struck down in Nyquist,'' and more similar to the benefits upheld 
in Everson and Allen as available to all schoolchildren.\88\ The Court 
declined to look behind the ``facial neutrality'' of the law and 
consider empirical evidence of its actual impact, citing a need for 
``certainty'' and the lack of ``principled standards'' by which to 
evaluate such evidence.\89\ Also important to the Court's refusal to 
consider the al

[[Page 988]]
leged disproportionate benefits to parents of parochial schools was the 
assertion that, ``whatever unequal effect may be attributed to the 
statutory classification can fairly be regarded as a rough return for 
the benefits . . . provided to the State and all taxpayers by parents 
sending their children to parochial schools.''\90\

        \87\463 U.S. 388 (1983).
        \88\463 U.S. at 398. Nyquist had reserved the question of 
``whether the significantly religious character of the statute's 
beneficiaries might differentiate the present cases from a case 
involving some form of public assistance (e.g., scholarships) made 
available generally without regard to the sectarian-nonsectarian, or 
public-nonpublic nature of the institution benefitted.'' 413 U.S. at 
782-83 n.38.
        \89\463 U.S. at 401. Justice Marshall's dissenting opinion, 
joined by Justices Brennan, Blackmun, and Stevens, argued that the 
tuition component of the deduction, unavailable to parents of most 
public schoolchildren, was by far the most significant, and that the 
deduction as a whole ``was little more that a subsidy of tuition 
masquerading as a subsidy of general educational expenses.'' 463 U.S. at 
408-09. Cf. Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985), 
where the Court emphasized that 40 of 41 nonpublic schools at which 
publicly funded programs operated were sectarian in nature; and Widmar 
v. Vincent, 454 U.S. 263, 275 (1981), holding that a college's open 
forum policy had no primary effect of advancing religion ``[a]t least in 
the absence of evidence that religious groups will dominate [the] 
forum.'' But cf. Bowen v. Kendrick, 487 U.S. 589 (1988), permitting 
religious institutions to be recipients under a ``facially neutral'' 
direct grant program.
        \90\463 U.S. at 402.

        A second factor important in Mueller, present but not 
controlling in Nyquist, was that the financial aid was provided to the 
parents of schoolchildren rather than to the school, and thus in the 
Court's view was ``attenuated'' rather than direct; since aid was 
``available only as a result of decisions of individual parents,'' there 
was no ```impramatur of state approval.''' The Court noted that, with 
the exception of Nyquist, ``all . . . of our recent cases invalidating 
state aid to parochial schools have involved the direct transmission of 
assistance from the State to the schools themselves.''\91\ Thus Mueller 
seemingly stands for the proposition that state subsidies of tuition 
expenses at sectarian schools are permissible if contained in a facially 
neutral scheme providing benefits, at least nominally, to parents of 
public and private schoolchildren alike.\92\

        \91\463 U.S. at 399.
        \92\See also Witters v. Washington Dept. of Services for the 
Blind, 474 U.S. 481 (1986), in which the Court held that provision of 
vocational assistance for the blind to a student who used the aid for 
tuition at a sectarian college did not have a primary effect of 
advancing religion. Without citing Mueller, the Court relied on the fact 
that the aid is paid directly to the student for use at the institution 
of his or her choice, so that religious institutions received aid ``only 
as a result of the genuinely independent and private choices of aid 
recipients,'' and on the additional fact that there was nothing in the 
record to indicate that ``any significant portion of the aid'' from the 
program as a whole would go to religious education. 474 U.S. at 487, 

        The Court, although closely divided at times, has approved quite 
extensive public assistance to institutions of higher learning. On the 
same day that it first struck down an assistance program for elementary 
and secondary private schools, the Court sustained construction grants 
to church-related colleges and universities.\93\ The specific grants in 
question were for construction of two library buildings, a science 
building, a music, drama, and arts building, and a language laboratory. 
The law prohibited the financing of any facility for, or the use of any 
federally-financed building for, reli

[[Page 989]]
gious purposes, although the restriction on use ran for only twenty 
years.\94\ The Court found that the purpose and effect of the grants 
were secular and that, unlike elementary and secondary schools, 
religious colleges were not so permeated with religious 
inculcations.\95\ The supervision required to ensure conformance with 
the non-religious-use requirement was found not to constitute 
``excessive entanglement,'' inasmuch as a building is nonideological in 
character, unlike teachers, and inasmuch as the construction grants were 
onetime things and did not continue as did the state programs.

        \93\Tilton v. Richardson, 403 U.S. 672 (1971). This was a 5-4 
        \94\Because such buildings would still have substantial value 
after twenty years, a religious use then would be an unconstitutional 
aid to religion, and the period of limitation was struck down, Id. at 
        \95\It was no doubt true, Chief Justice Burger conceded, that 
construction grants to religious-related colleges did in some measure 
benefit religion, since the grants freed money that the colleges would 
be required to spend on the facilities for which the grants were made. 
Bus transportation, textbooks, and tax exemptions similarly benefited 
religion and had been upheld. ``The crucial question is not whether some 
benefit accrues to a religious institution as a consequence of the 
legislative program, but whether its principal or primary effect 
advances religion.'' Id. at 679.

        Also sustained was a South Carolina program under which a state 
authority would issue revenue bonds for construction projects on 
campuses of private colleges and universities. The Court did not decide 
whether this special form of assistance could be otherwise sustained, 
because it concluded that religion was neither advanced nor inhibited, 
nor was there any impermissible public entanglement. ``Aid normally may 
be thought to have a primary effect of advancing religion when it flows 
to an institution 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.''\96\ The colleges involved, though they were 
affiliated with religious institutions, were not shown to be so 
pervasively religious--no religious test existed for faculty or student 
body, a substantial part of the student body was not of the religion of 
the affiliation--and state law precluded the use of any state-financed 
project for religious activities.\97\

        \96\Hunt v. McNair, 413 U.S. 734, 743 (1973).
        \97\Id. at 739-40, 741-45. Justices Brennan, Douglas, and 
Marshall, dissenting, rejected the distinction between elementary and 
secondary education and higher education and foresaw a greater danger of 
entanglement than did the Court. Id. at 749.

        The kind of assistance permitted by Tilton and by Hunt v. McNair 
seems to have been broadened when the Court sustained a Maryland program 
of annual subsidies to qualifying private institutions of higher 
education; the grants were noncategorical but could not be used for 
sectarian purposes, a limitation to be policed

[[Page 990]]
by the administering agency.\98\ The plurality opinion found a secular 
purpose; found that the limitation of funding to secular activities was 
meaningful,\99\ since the religiously affiliated institutions were not 
so pervasively sectarian that secular activities could not be separated 
from sectarian ones; and determined that excessive entanglement was 
improbable, given the fact that aided institutions were not pervasively 
sectarian. The annual nature of the subsidy was recognized as posing the 
danger of political entanglement, but the plurality thought that the 
character of the aided institutions--``capable of separating secular and 
religious functions''--was more important.\100\

        \98\Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976). 
Justice Blackmun's plurality opinion was joined only by Chief Justice 
Burger and Justice Powell. Justices White and Rehnquist concurred on the 
basis of secular purpose and no primary religious benefit, rejecting 
entanglement. Id. at 767. Justice Brennan, joined by Justice Marshall, 
dissented, and Justices Stewart and Stevens each dissented separately. 
Id. at 770, 773, 775.
        \99\Id. 755. In some of the schools mandatory religion courses 
were taught, the significant factor in Justice Stewart's view, id. at 
773, but overweighed by other factors in the plurality's view.
        \100\Id. at 765-66. The plurality also relied on the facts that 
the student body was not local but diverse, and that large numbers of 
non-religiously affiliated institutions received aid. A still further 
broadening of governmental power to extend aid affecting religious 
institutions of higher education may be discerned in the Court's summary 
affirmance of two lower-court decisions upholding programs of 
assistance--scholarships and tuitions grants--to students at college and 
university as well as vocational programs in both public and private--
including religious--institutions; one of the programs contained no 
secular use restriction at all and in the other one the restriction 
seemed somewhat pro forma. Smith v. Board of Governors of Univ. of North 
Carolina, 434 U.S. 803 (1977), aff'g 429 F. Supp. 871 (W.D.N.C. 1977); 
Americans United v. Blanton, 434 U.S. 803 (1977), aff'g 433 F. Supp. 97 
(M.D. Tenn. 1977). In Witters v. Washington Dep't of Services for the 
Blind, 474 U.S. 481 (1986), the Court upheld use of a vocational 
rehabilitation scholarship at a religious college, emphasizing that the 
religious institution received the public money as a result of the 
``genuinely independent and private choices of the aid recipients,'' and 
not as the result of any decision by the State to sponsor or subsidize 

        In Bowen v. Kendrick\101\ the Court by a 5-4 vote upheld the 
Adolescent Family Life Act (AFLA)\102\ against facial challenge. The Act 
permits direct grants to religious organizations for provision of health 
care and for counseling of adolescents on matters of pregnancy 
prevention and abortion alternatives, and requires grantees to involve 
other community groups, including religious organizations, in delivery 
of services. All of the Justices agreed that AFLA had valid secular 
purposes; their disagreement related to application of the effects and 
entanglement tests. The Court relied on

[[Page 991]]
analogy to the higher education cases rather than the cases involving 
aid to elementary and secondary schools.\103\ The case presented 
conflicting factual considerations. On the one hand, the class of 
beneficiaries was broad, with religious groups not predominant among the 
wide range of eligible community organizations. On the other hand, there 
were analogies to the parochial school aid cases: secular and religious 
teachings might easily be mixed, and the age of the targeted group 
(adolescents) suggested susceptibility. The Court resolved these 
conflicts by holding that AFLA is facially valid, there being 
insufficient indication that a significant proportion of the AFLA funds 
would be disbursed to ``pervasively sectarian'' institutions, but by 
remanding to the district court to determine whether particular grants 
to pervasively sectarian institutions were invalid. The Court emphasized 
in both parts of its opinion that the fact that ``views espoused [during 
counseling] on matters of premarital sex, abortion, and the like happen 
to coincide with the religious views of the AFLA grantee would not be 
sufficient to show [an Establishment Clause violation].''\104\

        \101\487 U.S. 589 (1988). Chief Justice Rehnquist wrote the 
Court's opinion, and was joined by Justices White, O'Connor, Scalia, and 
Kennedy; in addition, Justice O'Connor and Justice Kennedy, joined by 
Justice Scalia, filed separate concurring opinions. Justice Blackmun's 
dissenting opinion was joined by Justices Brennan, Marshall, and 
        \102\Pub. L. 97-35, 95 Stat. 578 (1981), codified at 42 U.S.C. 
Sec. 300z et seq.
        \103\The Court also noted that the 1899 case of Bradfield v. 
Roberts had established that religious organizations may receive direct 
aid for support of secular social-welfare cases.
        \104\487 U.S. at 621.

        Although the Court applied the Lemon three-part test in 
Kendrick, the case may signal a changing approach to direct aid cases. 
The distinction between facial and as-applied invalidity is new in this 
context, and may have implications for other Establishment Clause 
challenges. Also noteworthy is the fact that the Court expressed 
tolerance for a level of monitoring that would be impermissible for 
``pervasively sectarian'' organizations, rejecting the ```Catch-22' 
argument'' that excessive entanglement would result. Perhaps most 
significant is the fact that Justice Kennedy indicated in his separate 
concurring opinion that he would look behind the ``pervasively 
sectarian'' nature of aid recipients and focus on how aid money is 
actually being spent; only if aid is being spent for religious purposes 
would he hold that there has been a violation.\105\ This apparent 
contrast with the approach previously advocated by Justice Powell 
suggests that the balance on the Court may have shifted toward a less 
restrictive approach in the parochial school aid context.

        \105\Id. at 624-25.

        Governmental Encouragement of Religion in Public Schools: 
Released Time.--Introduction of religious education into the public 
schools, one of Justice Rutledge's ``great drives,''\106\ has

[[Page 992]]
also occasioned a substantial amount of litigation in the Court. In its 
first two encounters, the Court voided one program and upheld another, 
in which the similarities were at least as significant as the 
differences. Both cases involved ``released time'' programs, the 
establishing of a period during which pupils in public schools were to 
be allowed, upon parental request, to receive religious instruction. In 
the first, the religious classes were conducted during regular school 
hours in the school building by outside teachers furnished by a 
religious council representing the various faiths, subject to the 
approval or supervision of the superintendent of schools. Attendance 
reports were kept and reported to the school authorities in the same way 
as for other classes, and pupils not attending the religious instruction 
classes were required to continue their regular studies. ``The operation 
of the State's compulsory education system thus assists and is 
integrated with the program of religious instruction carried on by 
separate religious sects. Pupils compelled by law to go to school for 
secular education are released in part from their legal duty upon the 
condition that they attend the religious classes. This is beyond all 
question a utilization of the tax-established and tax-supported public 
school system to aid religious groups to spread their faith. And it 
falls squarely under the ban of the First Amendment . . . .''\107\ The 
case was also noteworthy because of the Court's express rejection of the 
contention ``that historically the First Amendment was intended to 
forbid only government preference of one religion over another, not an 
impartial governmental assistance of all religions.''\108\

        \106\Everson v. Board of Education, 330 U.S. 1, 63 (Justice 
Rutledge dissenting) (quoted supra p.977, n.41).
        \107\Illinois ex rel. McCollum v. Board of Education, 333 U.S. 
203, 209-10 (1948).
        \108\Id. at 211.

        Four years later, the Court upheld a different released-time 
program.\109\ In this one, schools released pupils during school hours, 
on written request of their parents, so that they might leave the school 
building and go to religious centers for religious instruction or 
devotional exercises. The churches reported to the schools the names of 
children released from the public schools who did not report for 
religious instruction; children not released remained in the classrooms 
for regular studies. The Court found the differences between this 
program and the program struck down in McCollum to be constitutionally 
significant. Unlike McCollum, where ``the classrooms were used for 
religious instruction and force of the public school was used to promote 
that instruction,'' religious instruction was conducted off school 
premises and ``the public schools do

[[Page 993]]
no more than accommodate their schedules.''\110\ We are a religious 
people whose institutions presuppose a Supreme Being,'' Justice Douglas 
wrote for the Court. ``When the state encourages religious instruction 
or cooperates with religious authorities by adjusting the schedule of 
public events to sectarian needs, it follows the best of our traditions. 
For it then respects the religious nature of our people and accommodates 
the public service to their spiritual needs. To hold that it may not 
would be to find in the Constitution a requirement that the government 
show a callous indifference to religious groups. That would be 
preferring those who believe in no religion over those who do 

        \109\Zorach v. Clauson, 343 U.S. 306 (1952). Justices Black, 
Frankfurter, and Jackson dissented. Id. at 315, 320, 323.
        \110\Id. at 315. See also Abington School Dist. v. Schempp, 374 
U.S. 203, 261-63 (1963) (Justice Brennan concurring) (suggesting that 
the important distinction was that ``the McCollum program placed the 
religious instruction in the public school classroom in precisely the 
position of authority held by the regular teachers of secular subjects, 
while the Zorach program did not'').
        \111\Id. at 313-14. These cases predated formulation of the 
Lemon three-part test for religious establishment, and the status of 
that test--as well as the constitutional status of released-time 
programs--is unclear. The degree of official and church cooperation may 
well not rise to a problem of excessive entanglement, but quaere, what 
is the secular purpose and secular effect of such programs? Some 
guidance may be provided by Grand Rapids School District v. Ball, 473 
U.S. 373 (1985), and Aguilar v. Felton, 473 U.S. 402 (1985), striking 
down programs using public school teachers for instruction of parochial 
school students in parochial school facilities, but these were 5-4 
decisions and the Court's membership has since changed.

        Governmental Encouragement of Religion in Public Schools: 
Prayers and Bible Reading.--Upon recommendation of the state governing 
board, a local New York school required each class to begin each school 
day by reading aloud the following prayer in the presence of the 
teacher: ``Almighty God, we acknowledge our dependence upon Thee, and we 
beg Thy blessing upon us, our parents, our teachers and our country.'' 
Students who wished to do so could remain silent or leave the room. Said 
the Court: ``We think that by using its public school system to 
encourage recitation of the Regents' prayer, the State of New York had 
adopted a practice wholly inconsistent with the Establishment Clause. 
There can, of course, be no doubt that New York's program of daily 
classroom invocation of God's blessings as prescribed in the Regents' 
prayer is a religious activity. . . . [W]e think that the constitutional 
prohibition against laws respecting an establishment of religion must at 
least mean that in this country it is no part of the business of 
government to compose official prayers for any group of the American 
people to recite as a part of a religious program carried on by 
government.''\112\ ``Neither the fact that the prayer may be 
nondenominationally neutral nor the fact that its observance on 

        \112\Engel v. Vitale, 370 U.S. 421, 424, 425 (1962).

[[Page 994]]

    the part of the students is voluntary can serve to free it from the 
    limitations of the Establishment Clause, as it might from the Free 
    Exercise Clause. . . . The Establishment Clause . . . does not 
    depend upon any showing of direct governmental compulsion and is 
    violated by the enactment of laws which establish an official 
    religion whether those laws operate directly to coerce nonobserving 
    individuals or not.''\113\

        \113\Id. at 430. Justice Black for the Court rejected the idea 
that the prohibition of religious services in public schools evidenced 
``a hostility toward religion or toward prayer.'' Id. at 434. Rather, 
such an application of the First Amendment protected religion from the 
coercive hand of government and government from control by a religious 
sect. Dissenting alone, Justice Stewart could not ``see how an `official 
religion' is established by letting those who want to say a prayer say 
it. On the contrary, I think that to deny the wish of these school 
children to join in reciting this prayer is to deny them the opportunity 
of sharing in the spiritual heritage of our Nation.'' Id. at 444, 445.

        Following the prayer decision came two cases in which parents 
and their school age children challenged the validity under the 
Establishment Clause of requirements that each school day begin with 
readings of selections from the Bible. Scripture reading, like prayers, 
the Court found, was a religious exercise. ``Given that finding the 
exercises and the law requiring them are in violation of the 
Establishment Clause.''\114\ Rejected were contentions by the State that 
the object of the programs was the promotion of secular purposes, such 
as the expounding of moral values, the contradiction of the 
materialistic trends of the times, the perpetuation of traditional 
institutions, and the teaching of literature\115\ and that to forbid the 
particular exercises was to choose a ``religion of secularism'' in their 
place.\116\ Though the ``place of religion in our society is an exalted 
one,'' the Establishment Clause, the Court continued, prescribed that in 
``the relationship between man and religion,'' the State must be 
``firmly committed to a position of neutrality.''\117\

        \114\Abington School Dist. v. Schempp, 374 U.S. 203, 223 (1963). 
``[T]he States are requiring the selection and reading at the opening of 
the school day of verses from the Holy Bible and the recitation of the 
Lord's Prayer by the students in unison. These exercises are prescribed 
as part of the curricular activities of students who are required by law 
to attend school. They are held in the school buildings under the 
supervision and with the participation of teachers employed in those 
schools. None of these factors, other than compulsory school attendance, 
was present in the program upheld in Zorach v. Clauson.'' Id.
        \115\Id. at 223-24. The Court thought the exercises were clearly 
        \116\Id. at 225. ``We agree of course that the State may not 
establish a `religion of secularism' in the sense of affirmatively 
opposing or showing hostility to religion, thus `preferring those who 
believe in no religion over those who do believe.' Zorach v. Clauson, 
supra, at 314. We do not agree, however, that this decision in any sense 
has that effect.''
        \117\Id. 226. Justice Brennan contributed a lengthy concurrence 
in which he attempted to rationalize the decisions of the Court on the 
religion clauses and to delineate the principles applicable. He 
concluded that what the establishment clause foreclosed ``are those 
involvements of religious with secular institutions which (a) serve the 
essentially religious activities of religious institutions; (b) employ 
the organs of government for essentially religious purposes; or (c) use 
essentially religious means to serve governmental ends, where secular 
means would suffice.'' Id. at 230, 295. Justice Stewart again dissented 
alone, feeling that the claims presented were essentially free exercise 
contentions which were not supported by proof of coercion or of punitive 
official action for nonparticipation.
        While numerous efforts were made over the years to overturn 
these cases, through constitutional amendment and through limitations on 
the Court's jurisdiction, the Supreme Court itself has had no occasion 
to review the area again. But see Stone v. Graham, 449 U.S. 39 (1980) 
(summarily reversing state court and invalidating statute requiring the 
posting of the Ten Commandments, purchased with private contributions, 
on the wall of each public classroom).


[[Page 995]]

        In Wallace v. Jaffree,\118\ the Court held invalid an Alabama 
statute authorizing a 1-minute period of silence in all public schools 
``for meditation or prayer.'' Because the only evidence in the record 
indicated that the words ``or prayer'' had been added to the existing 
statute by amendment for the sole purpose of returning voluntary prayer 
to the public schools, the Court found that the first prong of the Lemon 
test had been violated, i.e. that the statute was invalid as being 
entirely motivated by a purpose of advancing religion. The Court 
characterized the legislative intent to return prayer to the public 
schools as ``quite different from merely protecting every student's 
right to engage in voluntary prayer during an appropriate moment of 
silence during the schoolday,''\119\ and both Justices Powell and 
O'Connor in concurring opinions suggested that other state statutes 
authorizing moments of silence might pass constitutional muster.\120\

        \118\472 U.S. 38 (1985).
        \119\Id. at 59.
        \120\Justice O'Connor's concurring opinion is notable for its 
effort to synthesize and refine the Court's Establishment and Free 
Exercise tests (see also the Justice's concurring opinion in Lynch v. 
Donnelly), and Justice Rehnquist's dissent for its effort to redirect 
Establishment Clause analysis by abandoning the tripartite test, 
discarding any requirement that government be neutral between religion 
and ``irreligion,'' and confining the scope to a prohibition on 
establishing a national church or otherwise favoring one religious group 
over another.

        The school prayer decisions served as precedent for the Court's 
holding in Lee v. Weisman\121\ that a school-sponsored invocation at a 
high school commencement violated the Establishment Clause. The Court 
rebuffed a request to reexamine the Lemon test, finding ``[t]he 
government involvement with religious activity in this case [to be] 
pervasive, to the point of creating a state-sponsored and state-directed 
religious exercise in a public school.'' State officials not only 
determined that an invocation and benediction should be given, but also 
selected the religious participant and provided him with guidelines for 
the content of nonsectarian prayers. The Court, in an opinion by Justice 
Kennedy, viewed this state participation

[[Page 996]]
as coercive in the elementary and secondary school setting.\122\ The 
state ``in effect required participation in a religious exercise,'' 
since the option of not attending ``one of life's most significant 
occasions'' was no real choice. ``At a minimum,'' the Court concluded, 
the Establishment Clause ``guarantees that government may not coerce 
anyone to support or participate in religion or its exercise.''

        \121\112 S. Ct. 2649 (1992).
        \122\The Court distinguished Marsh v. Chambers, 463 U.S. 783, 
792 (1983), holding that the opening of a state legislative session with 
a prayer by a state-paid chaplain does not offend the Establishment 
Clause. The Marsh Court had distinguished Abington on the basis that 
state legislators, as adults, are ``presumably not readily susceptible 
to `religious indoctrination' or `peer pressure,''' and the Lee Court 
reiterated this distinction. 112 S. Ct. at 2660.

        Governmental Encouragement of Religion in Public Schools: 
Curriculum Restriction.--In Epperson v. Arkansas,\123\ the Court struck 
down a state statute which made it unlawful for any teacher in any 
state-supported educational institution ``to teach the theory or 
doctrine that mankind ascended or descended from a lower order of 
animals,'' or ``to adopt or use in any such institution a textbook that 
teaches'' this theory. Agreeing that control of the curriculum of the 
public schools was largely in the control of local officials, the Court 
nonetheless held that the motivation of the statute was a fundamentalist 
belief in the literal reading of the Book of Genesis and that this 
motivation and result required the voiding of the law. ``The law's 
effort was confined to an attempt to blot out a particular theory 
because of its supposed conflict with the Biblical account, literally 
read. Plainly, the law is contrary to the mandate of the First . . . 
Amendment to the Constitution.''\124\

        \123\393 U.S. 97 (1968).
        \124\Id. at 109.

        Similarly invalidated as having the improper purpose of 
advancing religion was a Louisiana statute mandating balanced treatment 
of ``creation-science'' and ``evolution-science'' in the public schools. 
``The preeminent purpose of the Louisiana legislature,'' the Court found 
in Edwards v. Aguillard, ``was clearly to advance the religious 
viewpoint that a supernatural being created humankind.''\125\ The Court 
viewed as a ``sham'' the stated purpose of protecting academic freedom, 
and concluded instead that the legislature's purpose was to narrow the 
science curriculum in order to discredit evolution ``by counterbalancing 
its teaching at every turn with the teaching of creation science.''\126\

        \125\483 U.S. 578, 591 (1987).
        \126\483 U.S. at 589. The Court's conclusion was premised on its 
finding that ``the term `creation science,' as used by the legislature 
. . . embodies the religious belief that a supernatural creator was 
responsible for the creation of humankind.'' Id. at at 592.

[[Page 997]]

        Access of Religious Groups to School Property.--Although 
government may not promote religion through its educational facilities, 
it may not bar student religious groups from meeting on public school 
property if it makes those facilities available to nonreligious student 
groups. To allow religious groups equal access to a public college's 
facilities would further a secular purpose, would not constitute an 
impermissible benefit to religion, and would pose little hazard of 
entanglement.\127\ These principles apply to public secondary schools as 
well as to institutions of higher learning.\128\ In 1990 the Court 
upheld application of the Equal Access Act\129\ to prevent a secondary 
school from denying access to school premises to a student religious 
club while granting access to such other ``noncurriculum'' related 
student groups as a scuba diving club, a chess club, and a service 

        \127\Widmar v. Vincent, 454 U.S. 263, 270-75 (1981).
        \128\Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226 
(1990). The Court had noted in Widmar that university students ``are 
less impressionable than younger students and should be able to 
appreciate that the University's policy is one of neutrality toward 
religion,'' 454 U.S. at 274 n.14. The Mergens plurality ignored this 
distinction, suggesting that the secondary school's neutrality was also 
evident to its students. 496 U.S. at 252.
        \129\Pub. L. 98-377, title VIII, 98 Stat. 1302 (1984); 20 U.S.C. 
Sec. Sec. 4071-74.
        \130\There was no opinion of the Court on Establishment Clause 
issues, a plurality of four led by Justice O'Connor applying the three-
part Lemon test, and concurring Justices Kennedy and Scalia proposing a 
less stringent test under which ``neutral'' accommodations of religion 
would be permissible as long as they do not in effect establish a state 
religion, and as long as there is no coercion of students to participate 
in a religious activity. Id. at 2377.

        While the greater number of establishment cases have involved 
educational facilities, in other areas as well there have been 
contentions that legislative policies have been laws ``respecting'' the 
establishment of religion.

        Tax Exemptions of Religious Property.--Every State and the 
District of Columbia provide for tax exemptions for religious 
institutions, and the history of such exemptions goes back to the time 
of our establishment as a polity. The only expression by a Supreme Court 
Justice prior to 1970 was by Justice Brennan, who deemed tax exemptions 
constitutional because the benefit conferred was incidental to the 
religious character of the institutions concerned.\131\ Then, in 1970, a 
nearly unanimous Court sustained a state exemption from real or personal 
property taxation of ``property used exclusively for religious, 
educational or charitable purposes'' owned by a corporation or 
association which was conducted exclusively for

[[Page 998]]
one or more of these purposes and did not operate for profit.\132\ The 
first prong of a two-prong argument saw the Court adopting Justice 
Brennan's rationale. Using the secular purpose and effect test, Chief 
Justice Burger noted that the purpose of the exemption was not to single 
out churches for special favor; instead, the exemption applied to a 
broad category of associations having many common features and all 
dedicated to social betterment. Thus, churches as well as museums, 
hospitals, libraries, charitable organizations, professional 
associations, and the like, all non-profit, and all having a beneficial 
and stabilizing influence in community life, were to be encouraged by 
being treated specially in the tax laws. The primary effect of the 
exemptions was not to aid religion; the primary effect was secular and 
any assistance to religion was merely incidental.\133\

        \131\``If religious institutions benefit, it is in spite of 
rather than because of their religious character. For religious 
institutions simply share benefits which government makes generally 
available to educational, charitable, and eleemosynary groups.'' 
Abington School Dist. v. Schempp, 374 U.S. 203, 301 (1963) (concurring 
        \132\Walz v. Tax Comm'n, 397 U.S. 664 (1970). Justice Douglas 
        \133\Id. at 672-74.

        For the second prong, the Court created a new test, the 
entanglement test,\134\ by which to judge the program. There was some 
entanglement whether there were exemptions or not, Chief Justice Burger 
continued, but with exemptions there was minimal involvement. But 
termination of exemptions would deeply involve government in the 
internal affairs of religious bodies, because evaluation of religious 
properties for tax purposes would be required and there would be tax 
liens and foreclosures and litigation concerning such matters.\135\

        \134\Supra, p.973.
        \135\397 U.S. at 674-76.

        While the general issue is now settled, it is to be expected 
that variations of the exemption upheld in Walz will present the Court 
with an opportunity to elaborate the field still further.\136\ For 
example, the Court determined that a sales tax exemption applicable only 
to religious publications constituted a violation of the Establishment 
Clause,\137\ and, on the other hand, that application of a general sales 
and use tax provision to religious publications violates neither the 
Establishment Clause nor the Free Exercise Clause.\138\

        \136\For example, the Court subsequently accepted for review a 
case concerning property tax exemption for church property used as a 
commercial parking lot, but state law was changed, denying exemption for 
purely commercial property and requiring a pro rata exemption for mixed 
use, and the Court remanded so that the change in the law could be 
considered. Differderfer v. Central Baptist Church, 404 U.S. 412 (1972).
        \137\Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989).
        \138\Jimmy Swaggart Ministries v. California Bd. of 
Equalization, 493 U.S. 378 (1990). Similarly, there is no constitutional 
impediment to straightforward application of 26 U.S.C. Sec. 170 to 
disallow a charitable contribution for payments to a church found to 
represent a reciprocal exchange rather than a contribution or gift. 
Hernandez v. Commissioner, 490 U.S. 680 (1989).


[[Page 999]]

        Exemption of Religious Organizations from Generally Applicable 
Laws.--The Civil Rights Act's exemption of religious organizations from 
the prohibition against religious discrimination in employment\139\ does 
not violate the Establishment Clause when applied to a religious 
organization's secular, nonprofit activities. The Court held in 
Corporation of the Presiding Bishop v. Amos\140\ that a church-run 
gymnasium operated as a nonprofit facility open to the public could 
require that its employees be church members. Declaring that ``there is 
ample room for accommodation of religion under the Establishment 
Clause,''\141\ the Court identified a legitimate purpose in freeing a 
religious organization from the burden of predicting which of its 
activities a court will consider to be secular and which religious. The 
rule applying across-the-board to nonprofit activities and thereby 
``avoid[ing] . . . intrusive inquiry into religious belief'' also serves 
to lessen entanglement of church and state.\142\ The exemption itself 
does not have a principal effect of advancing religion, the Court 
concluded, but merely allows churches to advance religion.\143\

        \139\Section 703 of the Civil Rights Act of 1964, 42 U.S.C. 
Sec. 2000e-2, makes it unlawful for any employer to discriminate in 
employment practices on the basis of an employee's religion. Section 
702, 42 U.S.C. Sec. 2000e-1, exempts from the prohibition ``a religious 
corporation . . . with respect to the employment of individuals of a 
particular religion to perform work connected with the carrying on by 
such corporation . . . of its activities.''
        \140\483 U.S. 327 (1987).
        \141\483 U.S. at 338.
        \142\Id. at 339.
        \143\``For a law to have forbidden `effects' . . . it must be 
fair to say that the government itself has advanced religion through its 
own activities and influence.'' 483 U.S. at 337. Justice O'Connor's 
concurring opinion suggests that practically any benefit to religion can 
be ``recharacterized as simply `allowing' a religion to better advance 
itself,'' and that a ``necessary second step is to separate those 
benefits to religion that constitutionally accommodate the free exercise 
of religion from those that provide unjustifiable awards of assistance 
to religious organizations.'' Id. at 347, 348.

        Sunday Closing Laws.--The history of Sunday Closing Laws goes 
back into United States colonial history and far back into English 
history.\144\ Commonly, the laws require the observance of the Christian 
Sabbath as a day of rest, although in recent years they have tended to 
become honeycombed with exceptions. The Supreme Court rejected an 
Establishment Clause challenge to Sunday Closing Laws in McGowan v. 
Maryland.\145\ The Court acknowledged

[[Page 1000]]
that historically the laws had a religious motivation and were designed 
to effectuate concepts of Christian theology. However, ``[i]n light of 
the evolution of our Sunday Closing Laws through the centuries, and of 
their more or less recent emphasis upon secular considerations, it is 
not difficult to discern that as presently written and administered, 
most of them, at least, are of a secular rather than of a religious 
character, and that presently they bear no relationship to establishment 
of religion. . . .''\146\ ``[T]he fact that this [prescribed day of 
rest] is Sunday, a day of particular significance for the dominant 
Christian sects, does not bar the State from achieving its secular 
goals. To say that the States cannot prescribe Sunday as a day of rest 
for these purposes solely because centuries ago such laws had their 
genesis in religion would give a constitutional interpretation of 
hostility to the public welfare rather than one of mere separation of 
church and State.''\147\ The choice of Sunday as the day of rest, while 
originally religious, now reflected simple legislative inertia or 
recognition that Sunday was a traditional day for the choice.\148\ Valid 
secular reasons existed for not simply requiring one day of rest and 
leaving to each individual to choose the day, reasons of ease of 
enforcement and of assuring a common day in the community for rest and 
leisure.\149\ More recently, a state statute mandating that employers 
honor the Sabbath day of the employee's choice was held invalid as 
having the primary effect of promoting religion by weighing the 
employee's Sabbath choice over all other interests.\150\

        \144\The history is recited at length in the opinion of the 
Court in McGowan v. Maryland, 366 U.S. 420, 431-40 (1961), and in 
Justice Frankfurter's concurrence. Id. at 459, 470-551 and appendix.
        \145\366 U.S. 420 (1961). Decision on the establishment question 
in this case also controlled the similar decision on that question in 
Two Guys from Harrison-Allentown v. McGinley, 366 U.S. 582 (1961), 
Braunfeld v. Brown, 366 U.S. 599 (1961), and Gallagher v. Crown Kosher 
Super Market, 366 U.S. 617 (1961). On free exercise in these cases, see 
infra, pp.1011-12.
        \146\McGowan v. Maryland, 366 U.S. 420, 444 (1961).
        \147\Id. at 445.
        \148\Id. at 449-52.
        \149\Id. Justice Frankfurter, with whom Justice Harlan 
concurred, arrived at the same conclusions by a route that did not 
require approval of Everson v. Board of Education, from which he had 
        \150\Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985).

        Conscientious Objection.--Historically, Congress has provided 
for alternative service for men who had religious scruples against 
participating in either combat activities or in all forms of military 
activities; the fact that Congress chose to draw the line of exemption 
on the basis of religious belief confronted the Court with a difficult 
constitutional question, which, however, the Court chose to avoid by a 
somewhat disingenuous interpretation of the stat

[[Page 1001]]
ute.\151\ In Gillette v. United States,\152\ a further constitutional 
problem arose in which the Court did squarely confront and validate the 
congressional choice. Congress had restricted conscientious objection 
status to those who objected to ``war in any form'' and the Court 
conceded that there were religious or conscientious objectors who were 
not opposed to all wars but only to particular wars based upon 
evaluation of a number of factors by which the ``justness'' of any 
particular war could be judged; ``properly construed,'' the Court said, 
the statute did draw a line relieving from military service some 
religious objectors while not relieving others.\153\ Purporting to apply 
the secular purpose and effect test, the Court looked almost exclusively 
to purpose and hardly at all to effect. Although it is not clear, the 
Court seemed to require that a classification must be religiously based 
``on its face''\154\ or lack any ``neutral, secular basis for the lines 
government has drawn''\155\ in order that it be held to violate the 
Establishment Clause. The classification here was not religiously based 
``on its face,'' and served ``a number of valid purposes having nothing 
to do with a design to foster or favor any sect, religion, or cluster of 
religions.''\156\ These purposes, related to the difficulty in 
separating sincere conscientious objectors to particular wars from 
others with fraudulent claims, included the maintenance of a fair and 
efficient selective service system and protection of the integrity of 
democratic decision-making.\157\

        \151\In United States v. Seeger, 380 U.S. 163 (1965), a 
unanimous Court construed the language of the exemption limiting the 
status to those who by ``religious training and belief'' (that is, those 
who believed in a ``Supreme Being''), to mean that a person must have 
some belief which occupies in his life the place or role which the 
traditional concept of God occupies in the orthodox believer. After the 
``Supreme Being'' clause was deleted, a plurality in Welsh v. United 
States, 398 U.S. 333 (1970), construed the religion requirement as 
inclusive of moral, ethical, or religious grounds. Justice Harlan 
concurred on constitutional grounds, believing that the statute was 
clear that Congress had intended to restrict conscientious objection 
status to those persons who could demonstrate a traditional religious 
foundation for their beliefs and that this was impermissible under the 
Establishment Clause. Id. at 344. The dissent by Justices White and 
Stewart and Chief Justice Burger rejected both the constitutional and 
the statutory basis. Id. at 367.
        \152\401 U.S. 437 (1971).
        \153\Id. at 449.
        \154\Id. at 450.
        \155\Id. at 452.
        \157\Id. at 452-60.

        Regulation of Religious Solicitation.--Although the solicitation 
cases have generally been decided under the free exercise or free speech 
clauses,\158\ in one instance the Court, intertwining establishment and 
free exercise principles, voided a provision in a state charitable 
solicitations law that required only those religious organizations that 
received less than half their total contributions

[[Page 1002]]
from members or affiliated organizations to comply with the registration 
and reporting sections of the law.\159\ Applying strict scrutiny equal 
protection principles, the Court held that by distinguishing between 
older, well-established churches that had strong membership financial 
support and newer bodies lacking a contributing constituency or that may 
favor public solicitation over general reliance on financial support 
from the members, the statute granted denominational preference 
forbidden by the Establishment Clause.\160\

        \158\Infra, p.1182.
        \159\Larson v. Valente, 456 U.S. 228 (1982). Two Justices 
dissented on the merits, id. at 258 (Justices White and Rehnquist), 
while two other Justices dissented on a standing issue. Id. at 264 
(Chief Justice Burger and Justice O'Connor).
        \160\Id. at 246-51. Compare Heffron v. ISKCON, 452 U.S. 640, 
652-53 (1981), and id. at 659 n.3 (Justice Brennan, concurring in part 
and dissenting in part) (dealing with a facially neutral solicitation 
rule distinguishing between religious groups that have a religious tenet 
requiring peripatetic solicitation and those who do not).

        Religion in Governmental Observances.--The practice of opening 
legislative sessions with prayers by paid chaplains was upheld in Marsh 
v. Chambers,\161\ a case involving prayers in the Nebraska Legislature. 
The Court relied almost entirely on historical practice. Congress had 
paid a chaplain and opened sessions with prayers for almost 200 years; 
the fact that Congress had continued the practice after considering 
constitutional objections in the Court's view strengthened rather than 
weakened the historical argument. Similarly, the practice was well 
rooted in Nebraska and in most other states. Most importantly, the First 
Amendment had been drafted in the First Congress with an awareness of 
the chaplaincy practice, and this practice was not prohibited or 
discontinued. The Court did not address the lower court's findings,\162\ 
amplified in Justice Brennan's dissent, that each aspect of the Lemon v. 
Kurtzman tripartite test had been violated. Instead of constituting an 
application of the tests, therefore, Marsh can be read as representing 
an exception to their application.\163\

        \161\463 U.S. 783 (1983). Marsh was a 6-3 decision, with Chief 
Justice Burger's opinion for the Court being joined by Justices White, 
Blackmun, Powell, Rehnquist, and O'Connor, and with Justices Brennan, 
Marshall, and Stevens dissenting.
        \162\Chambers v. Marsh, 675 F.2d 228 (8th Cir. 1982).
        \163\School prayer cases were distinguished on the basis that 
legislators, as adults, are presumably less susceptible than are 
schoolchildren to religious indoctrination and peer pressure, 463 U.S. 
at 792, but there was no discussion of the tests themselves.

        A different form of governmentally sanctioned religious 
observance--inclusion of religious symbols in governmentally sponsored 
holiday displays--was twice before the Court, with varying results. In 
1984, in Lynch v. Donnelly,\164\ the Court found no violation of

[[Page 1003]]
the Establishment Clause occasioned by inclusion of a Nativity scene 
(creche) in a city's Christmas display; in 1989, in Allegheny County v. 
Greater Pittsburgh ACLU,\165\ inclusion of a creche in a holiday display 
was found to constitute a violation. Also at issue in Allegheny County 
was inclusion of a menorah in a holiday display; here the Court found no 
violation. The setting of each display was crucial to the varying 
results in these cases, the determinant being whether the Court majority 
believed that the overall effect of the display was to emphasize the 
religious nature of the symbols, or whether instead the emphasis was 
primarily secular. Perhaps equally important for future cases, however, 
was the fact that the four dissenters in Allegheny County would have 
upheld both the creche and menorah displays under a more relaxed, 
deferential standard.

        \164\465 U.S. 668 (1984). Lynch was a 5-4 decision, with Justice 
Blackmun, who voted with the majority in Marsh, joining the Marsh 
dissenters in this case. Again, Chief Justice Burger wrote the opinion 
of the Court, joined by the other majority Justices, and again Justice 
Brennan wrote a dissent, joined by the other dissenters. A concurring 
opinion was added by Justice O'Connor, and a dissenting opinion was 
added by Justice Blackmun.
        \165\492 U.S. 573 (1989).

        Chief Justice Burger's opinion for the Court in Lynch began by 
expanding on the religious heritage theme exemplified by Marsh; other 
evidence that ```[w]e are a religious people whose institutions 
presuppose a Supreme Being'''\166\ was supplied by reference to the 
national motto ``In God We Trust,'' the affirmation ``one nation under 
God'' in the pledge of allegiance, and the recognition of both 
Thanksgiving and Christmas as national holidays. Against that 
background, the Court then determined that the city's inclusion of the 
creche in its Christmas display had a legitimate secular purpose in 
recognizing ``the historical origins of this traditional event long 
[celebrated] as a National Holiday,''\167\ and that its primary effect 
was not to advance religion. The benefit to religion was called 
``indirect, remote, and incidental,'' and in any event no greater than 
the benefit resulting from other actions that had been found to be 
permissible, e.g. the provision of transportation and textbooks to 
parochial school students, various assistance to church-supported 
colleges, Sunday closing laws, and legislative prayers.\168\ The Court 
also reversed the lower court's finding of entanglement based only on 
``political divisiveness.''\169\

        \166\465 U.S. at 675, quoting Zorach v. Clausen, 343 U.S. 306, 
313 (1952).
        \167\465 U.S. at 680.
        \168\465 U.S. at 681-82. Note that, while the extent of benefit 
to religion was an important factor in earlier cases, it was usually 
balanced against the secular effect of the same practice rather than the 
religious effects of other practices.
        \169\465 U.S. at 683-84.

        Allegheny County was also decided by a 5-4 vote, Justice 
Blackmun writing the opinion of the Court on the creche issue, and

[[Page 1004]]
there being no opinion of the Court on the menorah issue.\170\ To the 
majority, the setting of the creche was distinguishable from that in 
Lynch. The creche stood alone on the center staircase of the county 
courthouse, bore a sign identifying it as the donation of a Roman 
Catholic group, and also had an angel holding a banner proclaiming 
``Gloria in Exclesis Deo.'' Nothing in the display ``detract[ed] from 
the creche's religious message,'' and the overall effect was to endorse 
that religious message.\171\ The menorah, on the other hand, was placed 
outside a government building alongside a Christmas tree and a sign 
saluting liberty, and bore no religious messages. To Justice Blackmun, 
this grouping merely recognized ``that both Christmas and Chanukah are 
part of the same winter-holiday season, which has attained a secular 
status'';\172\ to concurring Justice O'Connor, the display's ``message 
of pluralism'' did not endorse religion over nonreligion even though 
Chanukah is primarily a religious holiday and even though the menorah is 
a religious symbol.\173\ The dissenters, critical of the endorsement 
test proposed by Justice O'Connor and of the three-part Lemon test, 
would instead distill two principles from the Establishment Clause: 
``government may not coerce anyone to support or participate in any 
religion or its exercise; and it may not, in the guise of avoiding 
hostility or callous indifference, give direct benefits to religion in 
such a degree that it in fact `establishes a state religion or religious 
faith, or tends to do so.'''\174\

        \170\Justice O'Connor, who had concurred in Lynch, was the 
pivotal vote, joining the Lynch dissenters to form the majority in 
Allegheny County. Justices Scalia and Kennedy, not on the Court in 1984, 
replaced Chief Justice Burger and Justice Powell in voting to uphold the 
creche display; Justice Kennedy authored the dissenting opinion, joined 
by the other three.
        \171\492 U.S. at 598, 600.
        \172\Id. at 616.
        \173\Id. at 635.
        \174\Id. at 659.

        Miscellaneous.--In Larkin v. Grendel's Den,\175\ the Court held 
that the Establishment Clause is violated by a delegation of 
governmental decisionmaking to churches. At issue was a state statute 
permitting any church or school to block issuance of a liquor license to 
any establishment located within 500 feet of the church or school. While 
the statute had a permissible secular purpose of protecting churches and 
schools from the disruptions often associated with liquor 
establishments, the Court indicated that these purposes could be 
accomplished by other means, e.g. an outright ban on liquor outlets 
within a prescribed distance, or the vesting of discretionary authority 
in a governmental decisionmaker required to consider the views of 
affected parties. However, the

[[Page 1005]]
conferral of a veto authority on churches had a primary effect of 
advancing religion both because the delegation was standardless (thereby 
permitting a church to exercise the power to promote parochial 
interests), and because ``the mere appearance of a joint exercise of 
legislative authority by Church and State provides a significant 
symbolic benefit to religion in the minds of some.''\176\ Moreover, the 
Court determined, because the veto ``enmeshes churches in the processes 
of government,'' it represented an entanglement offensive to the ``core 
rationale underlying the Establishment Clause''--``[to prevent] `a 
fusion of governmental and religious functions.'''\177\

        \175\459 U.S. 116 (1982).
        \176\459 U.S. at 125-26. But cf. Marsh v. Chambers, 463 U.S. 783 
(1983), involving no explicit consideration of the possible symbolic 
implication of opening legislative sessions with prayers by paid 
        \177\459 U.S. at 126-27, quoting Abington, 374 U.S. 203, 222.

        ``The Free Exercise Clause . . . withdraws from legislative 
power, state and federal, the exertion of any restraint on the free 
exercise of religion. Its purpose is to secure religious liberty in the 
individual by prohibiting any invasions there by civil authority.''\178\ 
It bars ``governmental regulation of religious beliefs as such,''\179\ 
prohibiting misuse of secular governmental programs ``to impede the 
observance of one or all religions or . . . to discriminate invidiously 
between religions . . . even though the burden may be characterized as 
being only indirect.''\180\ Freedom of conscience is the basis of the 
free exercise clause, and government may not penalize or discriminate 
against an individual or a group of individuals because of their 
religious views nor may it compel persons to affirm any particular 
beliefs.\181\ Interpretation is complicated, however, by the fact that 
exercise of religion usually entails ritual or other practices that 
constitute ``conduct'' rather than pure ``belief.'' When it comes to 
protecting conduct as free exercise, the Court has been 
inconsistent.\182\ It has long been held that the Free Exercise

[[Page 1006]]
Clause does not necessarily prevent government from requiring the doing 
of some act or forbidding the doing of some act merely because religious 
beliefs underlie the conduct in question.\183\ What has changed over the 
years is the Court's willingness to hold that some religiously motivated 
conduct is protected from generally applicable prohibitions.

        \178\Abington School District v. Schempp, 374 U.S. 203, 222-23 
        \179\Sherbert v. Verner, 374 U.S 398, 402 (1963) (emphasis in 
        \180\Braunfeld v. Brown, 366 U.S. 599, 607 (1961).
        \181\Sherbert v. Verner, 374 U.S. 398, 402 (1963); Torcaso v. 
Watkins, 367 U.S. 488 (1961).
        \182\Academics as well as the Justices grapple with the extent 
to which religious practices as well as beliefs are protected by the 
Free Exercise Clause. For contrasting academic views of the origins and 
purposes of the Free Exercise Clause, compare McConnell, The Origins and 
Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 
1410 (1990) (concluding that constitutionally compelled exemptions from 
generally applicable laws are consistent with the Clause's origins in 
religious pluralism) with Marshall, The Case Against the 
Constitutionally Compelled Free Exercise Exemption, 40 Case W. Res. L. 
Rev. 357 (1989-90) (arguing that such exemptions establish an invalid 
preference for religious beliefs over non-religious beliefs).
        \183\E.g., Reynolds v. United States, 98 U.S. 145 (1879); 
Jacobson v. Massachusetts, 197 U.S. 11 (1905); Prince v. Massachusetts, 
321 U.S. 158 (1944); Braunfeld v. Brown, 366 U.S. 599 (1961); United 
States v. Lee, 455 U.S. 252 (1982); Employment Division v. Smith, 494 
U.S. 872 (1990).

        The relationship between the Free Exercise and Establishment 
Clauses varies with the expansiveness of interpretation of the two 
clauses. In a general sense both clauses proscribe governmental 
involvement with and interference in religious matters, but there is 
possible tension between a requirement of governmental neutrality 
derived from the Establishment Clause and a Free-Exercise-derived 
requirement that government accommodate some religious practices.\184\ 
So far, the Court has harmonized interpretation by denying that free-
exercise-mandated accommodations create establishment violations, and 
also by upholding some legislative accommodations not mandated by free 
exercise requirements. ``This Court has long recognized that government 
may (and sometimes must) accommodate religious practices and that it may 
do so without violating the Establishment Clause.''\185\ In holding that 
a state could not deny unemployment benefits to Sabbatarians who refused 
Saturday work, for example, the Court denied that it was ``fostering an 
`establishment' of the Seventh-Day Adventist religion, for the extension 
of unemployment benefits to Sabbatarians in common with Sunday 
worshippers reflects nothing more than the governmental obligation of 
neutrality in the face of religious differences, and does not represent 
that involvement of religious with secular institutions which it is the 
object of the Establishment Clause to forestall.''\186\ Legislation 
granting religious exemptions not held to

[[Page 1007]]
have been required by the Free Exercise Clause has also been upheld 
against Establishment Clause challenge,\187\ although it is also 
possible for legislation to go too far in promoting free exercise.\188\

        \184\``The Court has struggled to find a neutral course between 
the two Religion Clauses, both of which are cast in absolute terms, and 
either of which, if expanded to a logical extreme, would tend to clash 
with the other.'' Walz v. Tax Comm'n, 397 U.S. 668-69 (1970).
        \185\Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 144-45 
(1987). A similar accommodative approach was suggested in Walz: ``there 
is room for play in the joints productive of a benevolent neutrality 
which will permit religious exercise to exist without [governmental] 
sponsorship and without interference.'' 397 U.S. at 669.
        \186\Sherbert v. Verner, 374 U.S. 398, 409 (1963). Accord, 
Thomas v. Review Bd., 450 U.S. 707, 719-20 (1981). Dissenting in Thomas, 
Justice Rehnquist argued that Sherbert and Thomas created unacceptable 
tensions between the Establishment and Free Exercise Clauses, and that 
requiring the States to accommodate persons like Sherbert and Thomas 
because of their religious beliefs ran the risk of ``establishing'' 
religion under the Court's existing tests. He argued further, however, 
that less expansive interpretations of both clauses would eliminate this 
artificial tension. Thus, Justice Rehnquist would have interpreted the 
Free Exercise Clause as not requiring government to grant exemptions 
from general requirements that may burden religious exercise but that do 
not prohibit religious practices outright, and would have interpreted 
the Establishment Clause as not preventing government from voluntarily 
granting religious exemptions. 450 U.S. at 720-27. By 1990 these views 
had apparently gained ascendancy, Justice Scalia's opinion for the Court 
in the ``peyote'' case suggesting that accommodation should be left to 
the political process, i.e., that states could constitutionally provide 
exceptions in their drug laws for sacramental peyote use, even though 
such exceptions are not constitutionally required. Employment Div. v. 
Smith, 494 U.S. 872, 890 (1990).
        \187\See, e.g., Walz v. Tax Comm'n, 397 U.S. 664 (upholding 
property tax exemption for religious organizations); Corporation of the 
Presiding Bishop v. Amos, 483 U.S. 327 (1987) (upholding Civil Rights 
Act exemption allowing religious institutions to restrict hiring to 
members of religion); Gillette v. United States, 401 U.S. 437, 453-54 
(1971) (interpreting conscientious objection exemption from military 
        \188\See, e.g., Committee for Pub. Educ. & Religious Liberty v. 
Nyquist, 413 U.S. 756, 788-89 (1973) (tuition reimbursement grants to 
parents of parochial school children violate Establishment Clause in 
spite of New York State's argument that program was designed to promote 
free exercise by enabling low-income parents to send children to church 
schools); Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (state sales 
tax exemption for religious publications violates the Establishment 
Clause) (plurality opinion).

        The Belief-Conduct Distinction.--While the Court has 
consistently affirmed that the Free Exercise Clause protects religious 
beliefs, protection for religiously motivated conduct has waxed and 
waned over the years. The Free Exercise Clause ``embraces two concepts--
freedom to believe and freedom to act. The first is absolute, but in the 
nature of things, the second cannot be.''\189\ In its first free 
exercise case, involving the power of government to prohibit polygamy, 
the Court invoked a hard distinction between the two, saying that 
although laws ``cannot interfere with mere religious beliefs and 
opinions, they may with practices.''\190\ The rule thus propounded 
protected only belief, inasmuch as religiously motivated action was to 
be subjected to the police power of the state to the same extent as 
would similar action springing from other

[[Page 1008]]
motives. The Reynolds no-protection rule was applied in a number of 
cases,\191\ but later cases established that religiously grounded 
conduct is not always outside the protection of the free exercise 
clause.\192\ Instead, the Court began to balance the secular interest 
asserted by the government against the claim of religious liberty 
asserted by the person affected; only if the governmental interest was 
``compelling'' and if no alternative forms of regulation would serve 
that interest was the claimant required to yield.\193\ Thus, while 
freedom to engage in religious practices was not absolute, it was 
entitled to considerable protection.

        \189\Cantwell v. Connecticut, 310 U.S. 296, 304 (1940).
        \190\Reynolds v. United States, 98 U.S. 145, 166 (1878). ``Crime 
is not the less odious because sanctioned by what any particular sect 
may designate as `religion.''' Davis v. Beason, 133 U.S. 333, 345 
(1890). In another context, Justice Sutherland in United States v. 
Macintosh, 283 U.S. 605, 625 (1931), suggested a plenary governmental 
power to regulate action in denying that recognition of conscientious 
objection to military service was of a constitutional magnitude, saying 
that ``unqualified allegiance to the Nation and submission and obedience 
to the laws of the land, as well those made for war as those made for 
peace, are not inconsistent with the will of God.''
        \191\Jacobson v. Massachusetts, 197 U.S. 11 (1905) (compulsory 
vaccination); Prince v. Massachusetts 321 U.S. 158 (1944) (child labor); 
Cleveland v. United States, 329 U.S. 14 (1946) (polygamy). In Sherbert 
v. Verner, 374 U.S. 398, 403 (1963), Justice Brennan asserted that the 
``conduct or activities so regulated [in the cited cases] have 
invariably posed some substantial threat to public safety, peace or 
        \192\Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. 
Yoder, 406 U.S. 205 (1972); cf. Braunfeld v. Brown, 366 U.S. 599, 607 
(1961): ``[I]f the State regulates conduct by enacting a general law 
within its power, the purpose and effect of which is to advance the 
State's secular goals, the statute is valid despite its indirect burden 
on religious observance unless the State may accomplish its purpose by 
means which do not impose such a burden.''
        \193\Sherbert v. Verner, 374 U.S. 398, 403, 406-09 (1963). In 
Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court recognized compelling 
state interests in provision of public education, but found insufficient 
evidence that those interests (preparing children for citizenship and 
for self-reliance) would be furthered by requiring Amish children to 
attend public schools beyond the eighth grade. Instead, the evidence 
showed that the Amish system of vocational education prepared their 
children for life in their self-sufficient communities.

        Recent cases evidence a narrowing of application of the 
compelling interest test, and a corresponding constriction on the 
freedom to engage in religiously motivated conduct. First, the Court 
purported to apply strict scrutiny, but upheld the governmental action 
anyhow. Next the Court held that the test is inappropriate in the 
contexts of military and prison discipline.\194\ Then, more importantly, 
the Court ruled in Employment Division v. Smith that ``if prohibiting 
the exercise of religion . . . is not the object . . . but merely the 
incidental effect of a generally applicable and otherwise valid 
provision, the First Amendment has not been offended.''\195\ Therefore, 
the Court concluded, the Free Exercise Clause does not prohibit a state 
from applying generally applicable criminal penalties to use of peyote 
in a religious ceremony, or from denying unemployment benefits to 
persons dismissed from their jobs because of religious ceremonial use of 
peyote. Accommodation of such religious practices must be found in ``the 
political process,'' the Court noted; statutory religious-practice 
exceptions are permissible, but

[[Page 1009]]
not ``constitutionally required.''\196\ The result is tantamount to a 
return to the Reynolds belief-conduct distinction.

        \194\Goldman v. Weinberger, 475 U.S. 503 (1986); O'Lone v. 
Estate of Shabazz, 482 U.S. 342 (1987).
        \195\494 U.S. 872, 878 (1990).
        \196\Id. at 890.

        The Mormon Cases.--The Court's first encounter with free 
exercise claims occurred in a series of cases in which the Federal 
Government and the territories moved against the Mormons because of 
their practice of polygamy. Actual prosecutions and convictions for 
bigamy presented little problem for the Court, inasmuch as it could 
distinguish between beliefs and acts.\197\ But the presence of large 
numbers of Mormons in some of the territories made convictions for 
bigamy difficult to obtain, and in 1882 Congress enacted a statute which 
barred ``bigamists,'' ``polygamists,'' and ``any person cohabiting with 
more than one woman'' from voting or serving on juries. The Court 
sustained the law, even as applied to persons entering the state prior 
to enactment of the original law prohibiting bigamy and to persons as to 
whom the statute of limitations had run.\198\ Subsequently, an act of a 
territorial legislature which required a prospective voter not only to 
swear that he was not a bigamist or polygamist but as well that ``I am 
not a member of any order, organization or association which teaches, 
advises, counsels or encourages its members, devotees or any other 
person to commit the crime of bigamy or polygamy . . . or which 
practices bigamy, polygamy or plural or celestial marriage as a 
doctrinal rite of such organization; that I do not and will not, 
publicly or privately, or in any manner whatever teach, advise, counsel 
or encourage any person to commit the crime of bigamy or polygamy . . . 
,'' was upheld in an opinion that condemned plural marriage and its 
advocacy as equal evils.\199\ And, finally, the Court sustained the 
revocation of the charter of the Mormon Church and confiscation of all 
church property not actually used for religious worship or for 

        \197\Reynolds v. United States, 98 U.S. 145 (1879); cf. 
Cleveland v. United States, 329 U.S. 14 (1946) (no religious-belief 
defense to Mann Act prosecution for transporting a woman across state 
line for the ``immoral purpose'' of polygamy).
        \198\Murphy v. Ramsey, 114 U.S. 15 (1885).
        \199\Davis v. Beason, 133 U.S. 333 (1890). ``Bigamy and polygamy 
are crimes by the laws of all civilized and Christian countries. . . . 
To call their advocacy a tenet of religion is to offend the common sense 
of mankind. If they are crimes, then to teach, advise and counsel their 
practice is to aid in their commission, and such teaching and counseling 
are themselves criminal and proper subjects of punishment, as aiding and 
abetting crime are in all other cases.'' Id. at 341-42.
        \200\The Late Corporation of the Church of Jesus Christ of 
Latter-Day Saints v. United States, 136 U.S. 1 (1890). ``[T]he property 
of the said corporation . . . [is to be used to promote] the practice of 
polygamy--a crime against the laws, and abhorrent to the sentiments and 
feelings of the civilized world. . . . The organization of a community 
for the spread and practice of polygamy is, in a measure, a return to 
barbarism. It is contrary to the spirit of Christianity and of the 
civilization which Christianity had produced in the Western world.'' Id. 
at 48-49.

[[Page 1010]]

        The Jehovah's Witnesses Cases.--In contrast to the Mormons, the 
sect known as Jehovah's Witnesses, in many ways as unsettling to the 
conventional as the Mormons were,\201\ provoked from the Court a lengthy 
series of decisions\202\ expanding the rights of religious proselytizers 
and other advocates to utilize the streets and parks to broadcast their 
ideas, though the decisions may be based more squarely on the speech 
clause than on the free exercise clause. The leading case is Cantwell v. 
Connecticut.\203\ Three Jehovah's Witnesses were convicted under a 
statute which forbade the unlicensed soliciting of funds for religious 
or charitable purposes, and also under a general charge of breach of the 
peace. The solicitation count was voided as an infringement on religion 
because the issuing officer was authorized to inquire whether the 
applicant did have a religious cause and to decline a license if in his 
view the cause was not religious. Such power amounted to a previous 
restraint upon the exercise of religion and was invalid, the Court 
held.\204\ The breach of the peace count arose when the three accosted 
two Catholics in a strongly Catholic neighborhood and played them a 
phonograph record which grossly insulted the Christian religion in 
general and the Catholic Church in particular. The Court voided this 
count under the clear-and-present danger test, finding that the interest 
sought to be upheld by the State did not justify the suppression of 
religious views that simply annoyed listeners.\205\

        \201\For recent cases dealing with other religious groups 
discomfiting to the mainstream, see Heffron v. ISKCON, 452 U.S. 640 
(1981) (Hare Krishnas); Larson v. Valente, 456 U.S. 228 (1982) 
(Unification Church).
        \202\Most of the cases are collected and categorized by Justice 
Frankfurter in Niemotko v. Maryland, 340 U.S. 268, 273 (1951) 
(concurring opinion).
        \203\310 U.S. 296 (1940).
        \204\Id. at 303-07. ``The freedom to act must have appropriate 
definition to preserve the enforcement of that protection [of society]. 
In every case the power to regulate must be so exercised as not, in 
attaining a permissible end, unduly to infringe the protected freedom. 
. . . [A] State may by general and non-discriminatory legislation 
regulate the times, the places, and the manner of soliciting upon its 
streets, and of holding meetings thereon; and may in other respects 
safeguard the peace, good order and comfort of the community, without 
unconstitutionally invading the liberties protected by the Fourteenth 
Amendment.'' Id. at 304.
        \205\Id. at 307-11. ``In the realm of religious faith, and in 
that of political belief, sharp differences arise. In both fields the 
tenets of one man may seem the rankest error to his neighbor. To 
persuade others to his own point of view, the pleader, as we know, at 
times, resorts to exaggeration, to vilification of men who have been, or 
are, prominent in church or state, and even to false statement. But the 
people of this nation have ordained in the light of history, that, in 
spite of the probabilities of excesses and abuses, these liberties are 
in the long view, essential to enlightened opinion and right conduct on 
the part of the citizens of a democracy.'' Id. at 310.

        There followed a series of sometimes conflicting decisions. At 
first, the Court sustained the application of a non-discriminatory li

[[Page 1011]]
cense fee to vendors of religious books and pamphlets,\206\ but eleven 
months later it vacated its former decision and struck down such 
fees.\207\ A city ordinance making it unlawful for anyone distributing 
literature to ring a doorbell or otherwise summon the dwellers of a 
residence to the door to receive such literature was held in violation 
of the First Amendment when applied to distributors of leaflets 
advertising a religious meeting.\208\ But a state child labor law was 
held to be validly applied to punish the guardian of a nine-year old 
child who permitted her to engage in ``preaching work'' and the sale of 
religious publications after hours.\209\ The Court decided a number of 
cases involving meetings and rallies in public parks and other public 
places by upholding licensing and permit requirements which were 
premised on nondiscriminatory ``times, places, and manners'' terms and 
which did not seek to regulate the content of the religious message to 
be communicated.\210\

        \206\Jones v. Opelika, 316 U.S. 584 (1942).
        \207\Jones v. Opelika, 319 U.S. 103 (1943); Murdock v. 
Pennsylvania, 319 U.S. 105 (1943). See also Follett v. McCormick, 321 
U.S. 573 (1944) (invalidating a flat licensing fee for booksellers). 
Murdock and Follett were distinguished in Jimmy Swaggart Ministries v. 
California Bd. of Equalization, 493 U.S. 378, 389 (1990) as applying 
``only where a flat license fee operates as a prior restraint''; upheld 
in Swaggart was application of a general sales and use tax to sales of 
religious publications.
        \208\Martin v. City of Struthers, 319 U.S. 141 (1943). But cf. 
Breard v. City of Alexandria, 341 U.S. 622 (1951) (similar ordinance 
sustained in commercial solicitation context).
        \209\Prince v. Massachusetts, 321 U.S. 158 (1944).
        \210\E.g., Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v. 
New York, 340 U.S. 290 (1951); Fowler v. Rhode Island, 345 U.S. 67 
(1953); Poulos v. New Hampshire, 345 U.S. 395 (1953). See also Larson v. 
Valente, 456 U.S. 228 (1982) (solicitation on state fair ground by 
Unification Church members).

        Free Exercise Exemption From General Governmental 
Requirements.--As described above, the Court gradually abandoned its 
strict belief-conduct distinction, and developed a balancing test to 
determine when a uniform, nondiscriminatory requirement by government 
mandating action or nonaction by citizens must allow exceptions for 
citizens whose religious scruples forbid compliance. Then, in 1990, the 
Court reversed direction in Employment Division v. Smith,\211\ confining 
application of the ``compelling interest'' test to a narrow category of 

        \211\494 U.S. 872 (1990).

        In early cases the Court sustained the power of a State to 
exclude from its schools children who because of their religious beliefs 
would not participate in the salute to the flag,\212\ only within a 
short time to reverse itself and condemn such exclusions, but on

[[Page 1012]]
speech grounds rather than religious grounds.\213\ Also, the Court 
seemed to be clearly of the view that government could compel those 
persons religiously opposed to bearing arms to take an oath to do so or 
to receive training to do so,\214\ only in later cases by its statutory 
resolution to cast doubt on this resolution,\215\ and still more 
recently to leave the whole matter in some doubt.\216\

        \212\Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940).
        \213\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 
(1943). On the same day, the Court held that a State may not forbid the 
distribution of literature urging and advising on religious grounds that 
citizens refrain from saluting the flag. Taylor v. Mississippi, 319 U.S. 
583 (1943).
        \214\See United States v. Schwimmer, 279 U.S. 644 (1929); United 
States v. Macintosh, 283 U.S. 605 (1931); and United States v. Bland, 
283 U.S. 636 (1931) (all interpreting the naturalization law as denying 
citizenship to a conscientious objector who would not swear to bear arms 
in defense of the country), all three of which were overruled by 
Girouard v. United States, 328 U.S. 61 (1946), on strictly statutory 
grounds. See also Hamilton v. Board of Regents, 293 U.S. 245 (1934) 
(upholding expulsion from state university for a religiously based 
refusal to take a required course in military training); In re Summers, 
325 U.S. 561 (1945) (upholding refusal to admit applicant to bar because 
as conscientious objector he could not take required oath).
        \215\United States v. Seeger, 380 U.S. 163 (1965); see id. at 
188 (Justice Douglas concurring); Welsh v. United States, 398 U.S. 333 
(1970); and see id. at 344 (Justice Harlan concurring).
        \216\Gillette v. United States, 401 U.S. 437 (1971) (holding 
that secular considerations overbalanced free exercise infringement of 
religious beliefs of objectors to particular wars).

        Braunfeld v. Brown\217\ held that the free exercise clause did 
not mandate an exemption from Sunday Closing Laws for an Orthodox Jewish 
merchant who observed Saturday as the Sabbath and was thereby required 
to be closed two days of the week rather than one. This requirement did 
not prohibit any religious practices, the Court's plurality pointed out, 
but merely regulated secular activity in a manner making religious 
exercise more expensive.\218\ ``If the State regulates conduct by 
enacting a general law within its power, the purpose and effect of which 
is to advance the State's secular goals, the statute is valid despite 
its indirect burden on religious observance unless the State may 
accomplish its purpose by means which do not impose such a 

        \217\366 U.S. 599 (1961). On Sunday Closing Laws and the 
establishment clause, see supra, pp. 987-988.
        \218\366 U.S. at 605-06.
        \219\Id. at 607 (plurality opinion). The concurrence balanced 
the economic disadvantage suffered by the Sabbatarians against the 
important interest of the State in securing its day of rest regulation. 
McGowan v. Maryland, 366 U.S. at 512-22 (1961). Three Justices 
dissented. Id. at 561 (Justice Douglas); Braunfeld v. Brown, 366 U.S. at 
610 (Justice Brennan), 616 (Justice Stewart).

        Within two years the Court in Sherbert v. Verner\220\ extended 
the line of analysis to require a religious exemption from a secular, 
regulatory piece of economic legislation. Sherbert was disqualified from 
receiving unemployment compensation because, as a Seventh

[[Page 1013]]
Day Adventist, she would not accept Saturday work; according to state 
officials, this meant she was not complying with the statutory 
requirement to stand ready to accept suitable employment. This denial of 
benefits could be upheld, the Court said, only if ``her disqualification 
as a beneficiary represents no infringement by the State of her 
constitutional rights of free exercise, or [if] any incidental burden on 
the free exercise of appellant's religions may be justified by a 
`compelling state interest in the regulation of a subject within the 
State's constitutional power to regulate . . .'''\221\ First, the 
disqualification was held to impose a burden on the free exercise of 
Sherbert's religion; it was an indirect burden and it did not impose a 
criminal sanction on a religious practice, but the disqualification 
derived solely from her practice of her religion and constituted a 
compulsion upon her to forgo that practice.\222\ Second, there was no 
compelling interest demonstrated by the State. The only interest 
asserted was the prevention of the possibility of fraudulent claims, but 
that was merely a bare assertion. Even if there was a showing of 
demonstrable danger, ``it would plainly be incumbent upon the appellees 
to demonstrate that no alternative forms of regulation would combat such 
abuses without infringing First Amendment rights.''\223\

        \220\374 U.S. 398 (1963).
        \221\Id. at 403, quoting NAACP v. Button, 371 U.S. 415, 438 
        \222\Id. at 403-06.
        \223\Id. at 407. Braunfeld was distinguished because of ``a 
countervailing factor which finds no equivalent in the instant case--a 
strong state interest in providing one uniform day of rest for all 
workers.'' That secular objective could be achieved, the Court found, 
only by declaring Sunday to be that day of rest. Requiring exemptions 
for Sabbatarians, while theoretically possible, appeared to present an 
administrative problem of such magnitude, or to afford the exempted 
class so great a competitive advantage, that such a requirement would 
have rendered the entire statutory scheme unworkable. Id. at 408-09. 
Other Justices thought that Sherbert overruled Braunfeld. Id. at 413, 
417 (Justice Stewart concurring), 418 (Justice Harlan and White 

        Sherbert was reaffirmed and applied in subsequent cases 
involving denial of unemployment benefits. Thomas v. Review Board\224\ 
involved a Jehovah's Witness who quit his job when his employer 
transferred him from a department making items for industrial use to a 
department making parts for military equipment. While his belief that 
his religion proscribed work on war materials was not shared by all 
other Jehovah's Witnesses, the Court held that it was inappropriate to 
inquire into the validity of beliefs asserted to be religious so long as 
the claims were made in good faith (and the beliefs were at least 
arguably religious). The same result was reached in a 1987 case, the 
fact that the employee's religious conversion rather than a job 
reassignment had created the conflict between work and Sabbath 
observance not being considered mate

[[Page 1014]]
rial to the determination that free exercise rights had been burdened by 
the denial of unemployment compensation.\225\ Also, a state may not deny 
unemployment benefits solely because refusal to work on the Sabbath was 
based on sincere religious beliefs held independently of membership in 
any established religious church or sect.\226\

        \224\450 U.S. 707 (1981).
        \225\Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987).
        \226\Frazee v. Illinois Dep't of Employment Security, 489 U.S. 
829 (1989). Cf. United States v. Seeger, 380 U.S. 163 (1965) 
(interpreting the religious objection exemption from military service as 
encompassing a broad range of formal and personal religious beliefs).

        The Court applied the Sherbert balancing test in several areas 
outside of unemployment compensation. The first two such cases involved 
the Amish, whose religion requires them to lead a simple life of labor 
and worship in a tight-knit and self-reliant community largely insulated 
from the materialism and other distractions of modern life. Wisconsin v. 
Yoder\227\ held that a state compulsory attendance law, as applied to 
require Amish children to attend ninth and tenth grades of public 
schools in contravention of Amish religious beliefs, violated the Free 
Exercise Clause. The Court first determined that the beliefs of the 
Amish were indeed religiously based and of great antiquity.\228\ Next, 
the Court rejected the State's arguments that the Free Exercise Clause 
extends no protection because the case involved ``action'' or 
``conduct'' rather than belief, and because the regulation, neutral on 
its face, did not single out religion.\229\ Instead, the Court went on 
to analyze whether a ``compelling'' governmental interest required such 
``grave interference'' with Amish belief and practices.\230\ The 
governmental interest was not the general provision of education, 
inasmuch as the State and the Amish were in agreement on education 
through the first eight grades and since the Amish provided their 
children with additional education of a primarily vocational nature. The 
State's interest was really that of providing two additional years of 
public schooling. Nothing in the record, felt the Court, showed that 
this interest outweighed the great harm which it would do to traditional 
Amish religious beliefs to impose the compulsory ninth and tenth grade 

        \227\406 U.S. 205 (1972).
        \228\Id. at 215-19. Why the Court felt impelled to make these 
points is unclear, since it is settled that it is improper for courts to 
inquire into the interpretation of religious belief. E.g., United States 
v. Lee, 455 U.S. 252, 257 (1982).
        \229\Id. at 219-21.
        \230\Id. at 221.
        \231\Id. at 221-29.

        But in recent years the Court's decisions evidenced increasing 
discontent with the compelling interest test. In several cases the

[[Page 1015]]
Court purported to apply strict scrutiny but nonetheless upheld the 
governmental action in question. In United States v. Lee,\232\ for 
example, the Court denied the Amish exemption from compulsory 
participation in the Social Security system. The objection was that 
payment of taxes by Amish employers and employees and the receipt of 
public financial assistance were forbidden by their religious beliefs. 
Accepting that this was true, the Court nonetheless held that the 
governmental interest was compelling and therefore sufficient to justify 
the burdening of religious beliefs.\233\ Compulsory payment of taxes was 
necessary for the vitality of the system; either voluntary participation 
or a pattern of exceptions would undermine its soundness and make the 
program difficult to administer.

        \232\455 U.S. 252 (1982).
        \233\The Court's formulation was whether the limitation on 
religious exercise was ``essential to accomplish an overriding 
governmental interest.'' 455 U.S. at 257-58. Accord, Hernandez v. 
Commissioner, 490 U.S. 680, 699-700 (1989) (any burden on free exercise 
imposed by disallowance of a tax deduction was ``justified by the `broad 
public interest in maintaining a sound tax system' free of `myriad 
exceptions flowing from a wide variety of religious beliefs''').

        ``A compelling governmental interest'' was also found to 
outweigh free exercise interests in Bob Jones University v. United 
States,\234\ in which the Court upheld the I.R.S.'s denial of tax 
exemptions to church-run colleges whose racially discriminatory 
admissions policies derived from religious beliefs. The Federal 
Government's ``fundamental, overriding interest in eradicating racial 
discrimination in education''--found to be encompassed in common law 
standards of ``charity'' underlying conferral of the tax exemption on 
``charitable'' institutions--``substantially outweighs'' the burden on 
free exercise. Nor could the schools' free exercise interests be 
accommodated by less restrictive means.\235\

        \234\461 U.S. 574 (1983).
        \235\461 U.S. at 604.

        In other cases the Court found reasons not to apply compelling 
interest analysis. Religiously motivated speech, like other speech, can 
be subjected to reasonable time, place, or manner regulation serving a 
``substantial'' rather than ``compelling'' governmental interest.\236\ 
Sherbert's threshold test, inquiring ``whether government has placed a 
substantial burden on the observation of a central religious belief or 
practice,''\237\ eliminates other issues. As long as a particular 
religion does not proscribe the payment of taxes (as was the case with 
the Amish in Lee), the Court has denied that there 

        \236\Heffron v. ISKCON, 452 U.S. 640 (1981). Requiring Krishnas 
to solicit at fixed booth sites on county fair grounds is a valid time, 
place, and manner regulation, although, as the Court acknowledged, id. 
at 652, peripatetic solicitation was an element of Krishna religious 
        \237\As restated in Hernandez v. Commissioner, 490 U.S. 680, 699 


[[Page 1016]]

    is any constitutionally significant burden resulting from 
    ``imposition of a generally applicable tax [that] merely decreases 
    the amount of money [adherents] have to spend on [their] religious 
    activities.''\238\ The one caveat the Court left--that a generally 
    applicable tax might be so onerous as to ``effectively choke off an 
    adherent's religious practices''\239\--may be a moot point in light 
    of the Court's general ruling in Employment Division v. Smith, 
    discussed below.

        \238\Jimmy Swaggart Ministries v. California Bd. of 
Equalization, 493 U.S. 378, 391 (1990). See also Tony and Susan Alamo 
Found. v. Secretary of Labor, 471 U.S. 290 (1985) (the Court failing to 
perceive how application of minimum wage and overtime requirements would 
burden free exercise rights of employees of a religious foundation, 
there being no assertion that the amount of compensation was a matter of 
religious import); and Hernandez v. Commissioner, 490 U.S. 680 (1989) 
(questioning but not deciding whether any burden was imposed by 
administrative disallowal of deduction for payments deemed to be for 
commercial rather than religious or charitable purposes).
        \239\Jimmy Swaggart Ministries, 493 U.S. at 392.

        The Court also drew a distinction between governmental 
regulation of individual conduct, on the one hand, and restraint of 
governmental conduct as a result of individuals' religious beliefs, on 
the other. Sherbert's compelling interest test has been held 
inapplicable in cases viewed as involving attempts by individuals to 
alter governmental actions rather than attempts by government to 
restrict religious practices. Emphasizing the absence of coercion on 
religious adherents, the Court in Lyng v. Northwest Indian Cemetery 
Protective Ass'n\240\ held that the Forest Service, even absent a 
compelling justification, could construct a road through a portion of a 
national forest held sacred and used by Indians in religious 
observances. The Court distinguished between governmental actions having 
the indirect effect of frustrating religious practices and those 
actually prohibiting religious belief or conduct: ```the Free Exercise 
Clause is written in terms of what the government cannot do to the 
individual, not in terms of what the individual can exact from the 
government.'''\241\ Similarly, even a sincerely held religious belief 
that assignment of a social security number would rob a child of her 
soul was held insufficient to bar the government from using the number 
for purposes of its own recordkeeping.\242\ It mattered not how easily 
the government could accommodate the religious beliefs or practices (an 
exemption from the social security number requirement might have been 
granted with only slight impact on the government's recordkeeping 
capabilities), since the na

[[Page 1017]]
ture of the governmental actions did not implicate free exercise 

        \240\485 U.S. 439 (1988).
        \241\Id. at 451, quoting Sherbert v. Verner, 374 U.S. 398, 412 
(1963) (Douglas, J., concurring).
        \242\Bowen v. Roy, 476 U.S. 693 (1986).
        \243\``In neither case . . . would the affected individuals be 
coerced by the Government's action into violating their religious 
beliefs; nor would either governmental action penalize religious 
activity.'' Lyng, 485 U.S. at 449.

        Compelling interest analysis is also wholly inapplicable in the 
context of military rules and regulations, where First Amendment review 
``is far more deferential than . . . review of similar laws or 
regulations designed for civilian society.''\244\ Thus the Court did not 
question the decision of military authorities to apply uniform dress 
code standards to prohibit the wearing of a yarmulke by an officer 
compelled by his Orthodox Jewish religious beliefs to wear the 

        \244\Goldman v. Weinberger, 475 U.S. 503, 507 (1986).
        \245\Congress reacted swiftly by enacting a provision allowing 
military personnel to wear religious apparel while in uniform, subject 
to exceptions to be made by the Secretary of the relevant military 
department for circumstances in which the apparel would interfere with 
performance of military duties or would not be ``neat and 
conservative.'' Pub. L. 100-180, Sec. 508(a)(2), 101 Stat. 1086 (1987); 
10 U.S.C. Sec. 774.

        A high degree of deference is also due decisions of prison 
administrators having the effect of restricting religious exercise by 
inmates. The general rule is that prison regulations impinging on 
exercise of constitutional rights by inmates are ```valid if . . . 
reasonably related to legitimate penological interests.'''\246\ Thus 
because general prison rules requiring a particular category of inmates 
to work outside of buildings where religious services were held, and 
prohibiting return to the buildings during the work day, could be viewed 
as reasonably related to legitimate penological concerns of security and 
order, no exemption was required to permit Muslim inmates to participate 
in Jumu'ah, the core ceremony of their religion.\247\ The fact that the 
inmates were left with no alternative means of attending Jumu'ah was not 
dispositive, the Court being ``unwilling to hold that prison officials 
are required by the Constitution to sacrifice legitimate penological 
objectives to that end.''\248\

        \246\O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) 
(quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
        \247\O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).
        \248\Id. at 351-52 (also suggesting that the ability of the 
inmates to engage in other activities required by their faith, e.g. 
individual prayer and observance of Ramadan, rendered the restriction 

        Finally, in Employment Division v. Smith\249\ the Court 
indicated that the compelling interest test may apply only in the field 
of unemployment compensation, and in any event does not apply to require 
exemptions from generally applicable criminal laws. Criminal laws are 
``generally applicable'' when they apply across

[[Page 1018]]
the board regardless of the religious motivation of the prohibited 
conduct, and are ``not specifically directed at . . . religious 
practices.''\250\ The unemployment compensation statute at issue in 
Sherbert was peculiarly suited to application of a balancing test 
because denial of benefits required a finding that an applicant had 
refused work ``without good cause.'' Sherbert and other unemployment 
compensation cases thus ``stand for the proposition that where the State 
has in place a system of individual exemptions, it may not refuse to 
extend that system to cases of `religious hardship' without compelling 
reason.''\251\ Wisconsin v. Yoder and other decisions holding ``that the 
First Amendment bars application of a neutral, generally applicable law 
to religiously motivated action'' were distinguished as involving ``not 
the Free Exercise Clause alone, but the Free Exercise Clause in 
conjunction with other constitutional protections'' such as free speech 
or ``parental rights.''\252\ Except in the relatively uncommon 
circumstance when a statute calls for individualized consideration, 
then, the Free Exercise Clause affords no basis for exemption from a 
``neutral, generally applicable law.'' As the Court concluded in Smith, 
accommodation for religious practices incompatible with general 
requirements must ordinarily be found in ``the political process.''\253\

        \249\494 U.S. 872 (1990) (holding that state may apply criminal 
penalties to use of peyote in a religious ceremony, and may deny 
unemployment benefits to persons dismissed from their jobs because of 
religiously inspired use of peyote).
        \250\Id. at 878.
        \251\Id. at 884.
        \252\Id. at 881.
        \253\Id. at 890.

        The ramifications of Smith are potentially widespread. The Court 
has apparently returned to a belief-conduct dichotomy under which 
religiously motivated conduct is not entitled to special protection. 
Laws may not single out religiously motivated conduct for adverse 
treatment, but formally neutral laws of general applicability may 
regulate religious conduct (along with other conduct) regardless of the 
adverse or prohibitory effects on religious exercise. Similar rules 
govern taxation. Under the Court's rulings in Smith and Swaggart, 
religious exemptions from most taxes are a matter of legislative grace 
rather than constitutional command, since most important taxes (e.g., 
income, property, sales and use) satisfy the criteria of formal 
neutrality and general applicability, and are not license fees that can 
be viewed as prior restraints on expression.\254\ The result is equal 
protection, but not substantive protection, for

[[Page 1019]]
religious exercise.\255\ The Court's approach also accords less 
protection to religiously-based conduct than is accorded expressive 
conduct that implicates speech but not religious values.\256\ On the 
practical side, relegation of free exercise claims to the political 
process may, as concurring Justice O'Connor warned, result in less 
protection for small, unpopular religious sects.\257\

        \254\This latter condition derives from the fact that the Court 
in Swaggart distinguished earlier decisions by characterizing them as 
applying only to flat license fees. See n., supra. See also Laycock, The 
Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1, 39-41.
        \255\Justice O'Connor, concurring in Smith, argued that ``the 
Free Exercise Clause protects values distinct from those protected by 
the Equal Protection Clause.'' 494 U.S. at 901.
        \256\Although neutral laws affecting expressive conduct are not 
measured by a ``compelling interest'' test, they are ``subject to a 
balancing, rather than categorical, approach.'' Smith, 494 U.S. at 902 
(O'Connor, J., concurring).
        \257\Id. at 1613.

        Religious Test Oaths.--However the Court has been divided in 
dealing with religiously-based conduct and governmental compulsion of 
action or nonaction, it was unanimous in voiding a state constitutional 
provision which required a notary public, as a condition of perfecting 
his appointment, to declare his belief in the existence of God. The 
First Amendment, considered with the religious oath provision of Article 
VI, makes it impossible ``for government, state or federal, to restore 
the historically and constitutionally discredited policy of probing 
religious beliefs by test oaths or limiting public offices to persons 
who have, or perhaps more properly, profess to have, a belief in some 
particular kind of religious concept.''\258\

        \258\Torcaso v. Watkins, 367 U.S. 488, 494 (1961).

        Religious Disqualification.--Unanimously, but with great 
differences of approach, the Court declared invalid a Tennessee statute 
barring ministers and priests from service in a specially called state 
constitutional convention.\259\ The Court's decision necessarily implied 
that the constitutional provision on which the statute was based, 
barring ministers and priests from service as state legislators, was 
also invalid.

        \259\McDaniel v. Paty, 435 U.S. 618 (1978). The plurality 
opinion by Chief Justice Burger, joined by Justices Powell, Rehnquist, 
and Stevens, found the case governed by Sherbert v. Verner's strict 
scrutiny test. The State had failed to show that its view of the dangers 
of clergy participation in the political process had any validity; 
Torcaso v. Watkins was distinguished because the State was acting on the 
status of being a clergyman rather than on one's beliefs. Justice 
Brennan, joined by Justice Marshall, found Torcaso controlling because 
imposing a restriction upon one's status as a religious person did 
penalize his religious belief, his freedom to profess or practice that 
belief. Id. at 629. Justice Stewart also found Torcaso dispositive, id. 
at 642, and Justice White found an equal protection violation because of 
the restraint upon seeking political office. Id. at 643.

[[Page 1020]]

                             FIRST AMENDMENT

                         RELIGION AND EXPRESSION


      Adoption and the Common Law Background

        Madison's version of the speech and press clauses, introduced in 
the House of Representatives on June 8, 1789, provided: ``The people 
shall not be deprived or abridged of their right to speak, to write, or 
to publish their sentiments; and the freedom of the press, as one of the 
great bulwarks of liberty, shall be inviolable.''\1\ The special 
committee rewrote the language to some extent, adding other provisions 
from Madison's draft, to make it read: ``The freedom of speech and of 
the press, and the right of the people peaceably to assemble and consult 
for their common good, and to apply to the Government for redress of 
grievances, shall not be infringed.''\2\ In this form it went to the 
Senate, which rewrote it to read: ``That Congress shall make no law 
abridging the freedom of speech, or of the press, or the right of the 
people peaceably to assemble and consult for their common good, and to 
petition the government for a redress of grievances.''\3\ Subsequently, 
the religion clauses and these clauses were combined by the Senate.\4\ 
The final language was agreed upon in conference.

        \1\1 Annals of Congress 434 (1789). Madison had also proposed 
language limiting the power of the States in a number of respects, 
including a guarantee of freedom of the press, Id. at 435. Although 
passed by the House, the amendment was defeated by the Senate, supra, 
        \2\Id. at 731 (August 15, 1789).
        \3\The Bill of Rights: A Documentary History 1148-49 (B. 
Schwartz ed. 1971).
        \4\Id. at 1153.

        Debate in the House is unenlightening with regard to the meaning 
the Members ascribed to the speech and press clause and there is no 
record of debate in the Senate.\5\ In the course of debate, Madison 
warned against the dangers which would arise ``from discussing and 
proposing abstract propositions, of which the judgment may not be 
convinced. I venture to say, that if we confine ourselves to an 
enumeration of simple, acknowledged principles, the ratification will 
meet with but little difficulty.''\6\ That the ``simple, acknowledged 
principles'' embodied in the First Amendment have occasioned controversy 
without end both in the courts and out should alert one to the 
difficulties latent in such spare language. Insofar as there is likely 
to have been a consensus, it was no doubt the common law view as 
expressed by Blackstone. ``The liberty of the

[[Page 1021]]
press is indeed essential to the nature of a free state; but this 
consists in laying no previous restraints upon publications, and not in 
freedom from censure for criminal matter when published. Every freeman 
has an undoubted right to lay what sentiments he pleases before the 
public; to forbid this, is to destroy the freedom of the press: but if 
he publishes what is improper, mischievous, or illegal, he must take the 
consequences of his own temerity. To subject the press to the 
restrictive power of a licenser, as was formerly done, both before and 
since the Revolution, is to subject all freedom of sentiment to the 
prejudices of one man, and make him the arbitrary and infallible judge 
of all controverted points in learning, religion and government. But to 
punish as the law does at present any dangerous or offensive writings, 
which, when published, shall on a fair and impartial trial be adjudged 
of a pernicious tendency, is necessary for the preservation of peace and 
good order, of government and religion, the only solid foundations of 
civil liberty. Thus, the will of individuals is still left free: the 
abuse only of that free will is the object of legal punishment. Neither 
is any restraint hereby laid upon freedom of thought or inquiry; liberty 
of private sentiment is still left; the disseminating, or making public, 
of bad sentiments, destructive to the ends of society, is the crime 
which society corrects.''\7\

        \5\The House debate insofar as it touched upon this amendment 
was concerned almost exclusively with a motion to strike the right to 
assemble and an amendment to add a right of the people to instruct their 
Representatives. 1 Annals of Congress 731-49 (August 15, 1789). There 
are no records of debates in the States on ratification.
        \6\Id. at 738.
        \7\4 W. Blackstone's Commentaries on the Laws of England 151-52 
(T. Cooley 2d rev. ed. 1872). See 3 J. Story, Commentaries on the 
Constitution of the United States 1874-86 (Boston: 1833). The most 
comprehensive effort to assess theory and practice in the period prior 
to and immediately following adoption of the Amendment is L. Levy, 
Legacy of Suppression: Freedom of Speech and Press in Early American 
History (1960), which generally concluded that the Blackstonian view was 
the prevailing one at the time and probably the understanding of those 
who drafted, voted for, and ratified the Amendment.

        Whatever the general unanimity on this proposition at the time 
of the proposal of and ratification of the First Amendment,\8\

[[Page 1022]]
it appears that there emerged in the course of the Jeffersonian 
counterattack on the Sedition Act\9\ and the use by the Adams 
Administration of the Act to prosecute its political opponents,\10\ 
something of a libertarian theory of freedom of speech and press,\11\ 
which, however much the Jeffersonians may have departed from it upon 
assuming power,\12\ was to blossom into the theory undergirding Supreme 
Court First Amendment jurisprudence in modern times. Full acceptance of 
the theory that the Amendment operates not only to bar most prior 
restraints of expression but subsequent punishment of all but a narrow 
range of expression, in political discourse and indeed in all fields of 
expression, dates from a quite recent period, although the Court's 
movement toward that position began in its consideration of limitations 
on speech and press in the period following World War I.\13\ Thus, in 
1907, Justice Holmes

[[Page 1023]]
could observe that even if the Fourteenth Amendment embodied 
prohibitions similar to the First Amendment, ``still we should be far 
from the conclusion that the plaintiff in error would have us reach. In 
the first place, the main purpose of such constitutional provisions is 
`to prevent all such previous restraints upon publications as had been 
practiced by other governments,' and they do not prevent the subsequent 
punishment of such as may be deemed contrary to the public welfare . 
. . . The preliminary freedom extends as well to the false as to the 
true; the subsequent punishment may extend as well to the true as to the 
false. This was the law of criminal libel apart from statute in most 
cases, if not in all.''\14\ But as Justice Holmes also observed, 
``[t]here is no constitutional right to have all general propositions of 
law once adopted remain unchanged.''\15\

        \8\It would appear that Madison advanced libertarian views 
earlier than his Jeffersonian compatriots, as witness his leadership of 
a move to refuse officially to concur in Washington's condemnation of 
``[c]ertain self-created societies,'' by which the President meant 
political clubs supporting the French Revolution, and his success in 
deflecting the Federalist intention to censure such societies. I. Brant, 
James Madison--Father of the Constitution 1787-1800, 416-20 (1950). ``If 
we advert to the nature of republican government,'' Madison told the 
House, ``we shall find that the censorial power is in the people over 
the government, and not in the government over the people.'' 4 Annals of 
Congress 934 (1794). On the other hand, the early Madison, while a 
member of his county's committee on public safety, had enthusiastically 
promoted prosecution of Loyalist speakers and the burning of their 
pamphlets during the Revolutionary period. 1 Papers of James Madison 
147, 161-62, 190-92 (W. Hutchinson & W. Rachal eds. 1962). There seems 
little doubt that Jefferson held to the Blackstonian view. Writing to 
Madison in 1788, he said: ``A declaration that the federal government 
will never restrain the presses from printing anything they please, will 
not take away the liability of the printers for false facts printed.'' 
13 Papers of Thomas Jefferson 442 (J. Boyd ed. 1955). Commenting a year 
later to Madison on his proposed amendment, Jefferson suggested that the 
free speech-free press clause might read something like: ``The people 
shall not be deprived or abridged of their right to speak, to write or 
otherwise to publish anything but false facts affecting injuriously the 
life, liberty, property, or reputation of others or affecting the peace 
of the confederacy with foreign nations.'' 15 Papers, supra, at 367.
        \9\The Act, Ch. 74, 1 Stat. 596 (1798), punished anyone who 
would ``write, print, utter or publish . . . any false, scandalous and 
malicious writing or writings against the government of the United 
States, or either house of the Congress of the United States, or the 
President of the United States, with intent to defame the said 
government, or either house of the said Congress, or the said President, 
or to bring them, or either of them, into contempt or disrepute.'' See 
J. Smith, Freedom's Fetters--The Alien and Sedition Laws and American 
Civil Liberties (1956).
        \10\Id. at 159 et seq.
        \11\L. Levy, Legacy of Suppression: Freedom of Speech and Press 
in Early American History, ch. 6 (Cambridge, 1960); New York Times Co. 
v. Sullivan, 376 U.S. 254, 273-76 (1964). But compare L. Levy, Emergence 
of a Free Press (1985), a revised and enlarged edition of Legacy of 
Suppression, in which Professor Levy modifies his earlier views, arguing 
that while the intention of the Framers to outlaw the crime of seditious 
libel, in pursuit of a free speech principle, cannot be established and 
may not have been the goal, there was a tradition of robust and rowdy 
expression during the period of the framing that contradicts his prior 
view that a modern theory of free expression did not begin to emerge 
until the debate over the Alien and Sedition Acts.
        \12\L. Levy, Jefferson and Civil Liberties--The Darker Side 
(Cambridge, 1963). Thus President Jefferson wrote to Governor McKean of 
Pennsylvania in 1803: ``The federalists having failed in destroying 
freedom of the press by their gag-law, seem to have attacked it in an 
opposite direction; that is, by pushing its licentiousness and its lying 
to such a degree of prostitution as to deprive it of all credit. . . . 
This is a dangerous state of things, and the press ought to be restored 
to its credibility if possible. The restraints provided by the laws of 
the States are sufficient for this if applied. And I have, therefore, 
long thought that a few prosecutions of the most prominent offenders 
would have a wholesome effect in restoring the integrity of the presses. 
Not a general prosecution, for that would look like persecution; but a 
selected one.'' 9 Works of Thomas Jefferson 449 (P. Ford, ed. 1905).
        \13\New York Times Co. v. Sullivan, 376 U.S. 254 (1964), 
provides the principal doctrinal justification for the development, 
although the results had long since been fully applied by the Court. In 
Sullivan, Justice Brennan discerned in the controversies over the 
Sedition Act a crystallization of ``a national awareness of the central 
meaning of the First Amendment,'' id. at 273, which is that the ``right 
of free public discussion of the stewardship of public officials . . . 
[is] a fundamental principle of the American form of government.'' Id. 
at 275. This ``central meaning'' proscribes either civil or criminal 
punishment for any but the most maliciously, knowingly false criticism 
of government. ``Although the Sedition Act was never tested in this 
Court, the attack upon its validity has carried the day in the court of 
history. . . . [The historical record] reflect[s] a broad consensus that 
the Act, because of the restraint it imposed upon criticism of 
government and public officials, was inconsistent with the First 
Amendment.'' Id. at 276. Madison's Virginia Resolutions of 1798 and his 
Report in support of them brought together and expressed the theories 
being developed by the Jeffersonians and represent a solid doctrinal 
foundation for the point of view that the First Amendment superseded the 
common law on speech and press, that a free, popular government cannot 
be libeled, and that the First Amendment absolutely protects speech and 
press. 6 Writings of James Madison, 341-406 (G. Hunt. ed. 1908).
        \14\Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis 
original). Justice Frankfurter had similar views in 1951: ``The historic 
antecedents of the First Amendment preclude the notion that its purpose 
was to give unqualified immunity to every expression that touched on 
matters within the range of political interest. . . . `The law is 
perfectly well settled,' this Court said over fifty years ago, `that the 
first ten amendments to the Constitution, commonly known as the Bill of 
Rights, were not intended to lay down any novel principles of 
government, but simply to embody certain guaranties and immunities which 
we had inherited from our English ancestors, and which had from time 
immemorial been subject to certain well-recognized exceptions arising 
from the necessities of the case. In incorporating these principles into 
the fundamental law there was no intention of disregarding the 
exceptions, which continued to be recognized as if they had been 
formally expressed.' That this represents the authentic view of the Bill 
of Rights and the spirit in which it must be construed has been 
recognized again and again in cases that have come here within the last 
fifty years.'' Dennis v. United States, 341 U.S. 494, 521-522, 524 
(1951) (concurring opinion). The internal quotation is from Robertson v. 
Baldwin, 165 U.S. 275, 281 (1897).
        \15\Patterson v. Colorado, 205 U.S. 454, 461 (1907).

        But in Schenck v. United States,\16\ the first of the post-World 
War I cases to reach the Court, Justice Holmes, in the opinion of the 
Court, while upholding convictions for violating the Espionage Act by 
attempting to cause insubordination in the military service by 
circulation of leaflets, suggested First Amendment restraints on 
subsequent punishment as well as prior restraint. ``It well may be

[[Page 1024]]
that the prohibition of laws abridging the freedom of speech is not 
confined to previous restraints although to prevent them may have been 
the main purpose . . . . We admit that in many places and in ordinary 
times the defendants in saying all that was said in the circular would 
have been within their constitutional rights. But the character of every 
act depends upon the circumstances in which it is done. The most 
stringent protection of free speech would not protect a man in falsely 
shouting fire in a theater and causing a panic. . . . The question in 
every case is whether the words used are used in such a nature as to 
create a clear and present danger that they will bring about the 
substantive evils that Congress has a right to prevent.'' Justice Holmes 
along with Justice Brandeis soon went into dissent in their views that 
the majority of the Court was misapplying the legal standards thus 
expressed to uphold suppression of speech which offered no threat of 
danger to organized institutions.\17\ But it was with the Court's 
assumption that the Fourteenth Amendment restrained the power of the 
States to suppress speech and press that the doctrines developed.\18\ At 
first, Holmes and Brandeis remained in dissent, but in Fiske v. 
Kansas,\19\ the Court sustained a First Amendment type of claim in a 
state case, and in Stromberg v. California,\20\ a state law was voided 
on grounds of its interference with free speech.\21\ State common law 
was also voided, the Court in an opinion by Justice Black asserting that 
the First Amendment enlarged protections for speech, press, and religion 
beyond those enjoyed under English common law.\22\ Development over the 
years since has been uneven, but by 1964 the Court could say with 
unanimity: ``we consider this case against the background of a profound 
national commitment to the principle that debate on public issues should 
be uninhibited, robust, and wide-open, and that it may well include 
vehement, caustic and

[[Page 1025]]
sometimes unpleasantly sharp attacks on government and public 
officials.''\23\ And in 1969, it was said that the cases ``have 
fashioned the principle that the constitutional guarantees of free 
speech and free press do not permit a State to forbid or proscribe 
advocacy of the use of force or of law violation except where such 
advocacy is directed to inciting or producing imminent lawless action 
and is likely to incite or produce such action.''\24\ This development 
and its myriad applications are elaborated in the following sections.

        \16\249 U.S. 47, 51-52 (1919) (citations omitted).
        \17\Debs v. United States, 249 U.S. 211 (1919); Abrams v. United 
States, 250 U.S. 616 (1919); Schaefer v. United States, 251 U.S. 466 
(1920); Pierce v. United States, 252 U.S. 239 (1920); United States ex 
rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 
(1921). A state statute similar to the federal one was upheld in Gilbert 
v. Minnesota, 254 U.S. 325 (1920).
        \18\Gitlow v. New York, 268 U.S. 652 (1925); Whitney v. 
California, 274 U.S. 357 (1927). The Brandeis and Holmes dissents in 
both cases were important formulations of speech and press principles.
        \19\274 U.S. 380 (1927).
        \20\283 U.S. 359 (1931). By contrast, it was not until 1965 that 
a federal statute was held unconstitutional under the First Amendment. 
Lamont v. Postmaster General, 381 U.S. 301 (1965). See also United 
States v. Robel, 389 U.S. 258 (1967).
        \21\And see Near v. Minnesota ex rel. Olson, 283 U.S. 697 
(1931); Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299 
U.S. 353 (1937); Lovell v. Griffin, 303 U.S. 444 (1938).
        \22\Bridges v. California, 314 U.S. 252, 263-68 (1941) 
(overturning contempt convictions of newspaper editor and others for 
publishing commentary on pending cases).
        \23\New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
        \24\Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
      Freedom of Expression: The Philosophical Basis

        Probably no other provision of the Constitution has given rise 
to so many different views with respect to its underlying philosophical 
foundations, and hence proper interpretive framework, as has the 
guarantee of freedom of expression--the free speech and free press 
clauses.\25\ The argument has been fought out among the commentators. 
``The outstanding fact about the First Amendment today is that the 
Supreme Court has never developed any comprehensive theory of what that 
constitutional guarantee means and how it should be applied in concrete 
cases.''\26\ Some of the commentators argue in behalf of a complex of 
values, none of which by itself is sufficient to support a broad-based 
protection of freedom of expression.\27\ Others would limit the basis of 
the First Amendment to one only among a constellation of possible values 
and would

[[Page 1026]]
therefore limit coverage or degree of protection of the speech and press 
clauses. For example, one school of thought believes that, because of 
the constitutional commitment to free self-government, only political 
speech is within the core protected area,\28\ although some commentators 
tend to define more broadly the concept of ``political'' than one might 
suppose from the word alone. Others recur to the writings of Milton and 
Mill and argue that protecting speech, even speech in error, is 
necessary to the eventual ascertainment of the truth, through conflict 
of ideas in the marketplace, a view skeptical of our ability to ever 
know the truth.\29\ A broader-grounded view is variously expounded by 
scholars who argue that freedom of expression is necessary to promote 
individual self-fulfillment, such as the concept that when speech is 
freely chosen by the speaker to persuade others it defines and expresses 
the ``self,'' promotes his liberty,\30\ or the concept of ``self-
realization,'' the belief that free speech enables the individual to 
develop his powers and abilities and to make and influence decisions 
regarding his destiny.\31\ The literature is enormous and no doubt the 
Justices as well as the larger society are influenced by it, and yet the 
decisions, probably in large part because they are the collective 
determination of nine individuals, seldom clearly reflect a principled 
and consistent acceptance of any philosophy.

        \25\While ``expression'' is not found in the text of the First 
Amendment, it is used herein, first, as a shorthand term for the 
freedoms of speech, press, assembly, petition, association, and the 
like, which are comprehended by the Amendment, and, second, as a 
recognition of the fact that judicial interpretation of the clauses of 
the First Amendment has greatly enlarged the definition commonly 
associated with ``speech,'' as the following discussion will reveal. The 
term seems well settled, see, e.g., T. Emerson, The System of Freedom of 
Expression (1970), although it has been criticized. F. Schauer, Free 
Speech: A Philosophical Inquiry, 50-52 (1982). The term also, as used 
here, conflates the speech and press clauses, explicitly assuming they 
are governed by the same standards of interpretation and that, in fact, 
the press clause itself adds nothing significant to the speech clause as 
interpreted, an assumption briefly defended infra, pp.1026-29.
        \26\T. Emerson, The System of Freedom of Expression 15 (1970). 
The practice in the Court is largely to itemize all the possible values 
the First Amendment has been said to protect. See, e.g., Consolidated 
Edison Co. v. PSC, 447 U.S. 530, 534-35 (1980); First National Bank of 
Boston v. Bellotti, 435 U.S. 765, 776-77 (1978).
        \27\T. Emerson, The System of Freedom of Expression 6-7 (1970). 
For Emerson, the four values are (1) assuring individuals self-
fulfillment, (2) promoting discovery of truth, (3) providing for 
participation in decisionmaking by all members of society, and (4) 
promoting social stability through discussion and compromise of 
differences. For a persuasive argument in favor of an ``eclectic'' 
approach, see Shriffrin, The First Amendment and Economic Regulation: 
Away From a General Theory of the First Amendment, 78 Nw. U.L. Rev. 1212 
(1983). A compressive discussion of all the theories may be found in F. 
Schauer, Free Speech: A Philosophical Inquiry (1982).
        \28\E.g., A. Meiklejohn, Political Freedom (1960); Bork, Neutral 
Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971); 
BeVier, The First Amendment and Political Speech: An Inquiry Into the 
Substance and Limits of Principle, 30 Stan. L. Rev. 299 (1978). This 
contention does not reflect the Supreme Court's view. ``It is no doubt 
true that a central purpose of the First Amendment `was to protect the 
free discussion of governmental affairs.' . . . But our cases have never 
suggested that expression about philosophical, social, artistic, 
economic, literary, or ethical matters--to take a nonexclusive list of 
labels--is not entitled to full First Amendment protection.'' Abood v. 
Detroit Bd. of Educ., 431 U.S. 209, 231 (1977).
        \29\The ``marketplace of ideas'' metaphor is attributable to 
Justice Holmes' opinion in Abrams v. United States, 250 U.S. 616, 630 
(1919). See Scanlon, Freedom of Expression and Categories of Expression, 
40 U. Pitt. L. Rev. 519 (1979). The theory has been the dominant one in 
scholarly and judicial writings. Baker, Scope of the First Amendment 
Freedom of Speech, 25 UCLA L. Rev. 964, 967-74 (1978).
        \30\E.g., Baker ``Process of Change and the Liberty Theory of 
the First Amendment, 55 S. Cal. L. Rev. 293 (1982); Baker, Realizing 
Self-Realization: Corporate Political Expenditures and Redish's The 
Value of Free Speech, 130 U. Pa. L. Rev. 646 (1982).
        \31\Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591 
      Freedom of Expression: Is There a Difference Between Speech and 

        Utilization of the single word ``expression'' to reach speech, 
press, petition, association, and the like, raises the central question 
of whether the free speech clause and the free press clause are 
coextensive; does one perhaps reach where the other does not? It has

[[Page 1027]]
been much debated, for example, whether the ``institutional press'' may 
assert or be entitled to greater freedom from governmental regulations 
or restrictions than are non-press individuals, groups, or associations. 
Justice Stewart has argued: ``That the First Amendment speaks separately 
of freedom of speech and freedom of the press is no constitutional 
accident, but an acknowledgment of the critical role played by the press 
in American society. The Constitution requires sensitivity to that role, 
and to the special needs of the press in performing it 
effectively.''\32\ But as Chief Justice Burger wrote: ``The Court has 
not yet squarely resolved whether the Press Clause confers upon the 
`institutional press' any freedom from government restraint not enjoyed 
by all others.''\33\

        \32\Houchins v. KQED, 438 U.S. 1, 17 (1978) (concurring 
opinion). Justice Stewart initiated the debate in a speech, subsequently 
reprinted as Stewart, Or of the Press, 26 Hastings L. J. 631 (1975). 
Other articles are cited in First National Bank of Boston v. Bellotti, 
435 U.S. 765, 795 (1978) (Chief Justice Burger concurring).
        \33\Id. at 798. The Chief Justice's conclusion was that the 
institutional press had no special privilege as the press.

        Several Court holdings do firmly point to the conclusion that 
the press clause does not confer on the press the power to compel 
government to furnish information or to give the press access to 
information that the public generally does not have.\34\ Nor in many 
respects is the press entitled to treatment different in kind than the 
treatment any other member of the public may be subjected to.\35\ 
``Generally applicable laws do not offend the First Amendment simply 
because their enforcement against the press has incidental 
effects.''\36\ Yet, it does seem clear that to some extent the press, 
because of the role it plays in keeping the public informed and in the 
dissemination of news and information, is entitled to particular if not 
special deference that others are not similarly entitled to, that its 
role constitutionally entitles it to governmental ``sensitivity,'' to 
use Justice Stewart's word.\37\ What difference such

[[Page 1028]]
a recognized ``sensitivity'' might make in deciding cases is difficult 
to say.

        \34\Houchins v. KQED, 438 U.S. 1 (1978), and id. at 16 (Justice 
Stewart concurring); Saxbe v. Washington Post, 417 U.S. 843 (1974); Pell 
v. Procunier, 417 U.S. 817 (1974); Nixon v. Warner Communications, 435 
U.S. 589 (1978). The trial access cases, whatever they may precisely 
turn out to mean, recognize a right of access of both public and press 
to trials. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe 
Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).
        \35\Branzburg v. Hayes, 408 U.S. 665 (1972) (grand jury 
testimony be newspaper reporter); Zurcher v. Stanford Daily, 436 U.S. 
547 (1978) (search of newspaper offices); Herbert v. Lando, 441 U.S. 153 
(1979) (defamation by press); Cohen v. Cowles Media Co., 501 U.S. 663 
(1991) (newspaper's breach of promise of confidentiality).
        \36\Cohen v. Cowles Media, 501 U.S. 663, 669 (1991).
        \37\E.g., Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 
(1974); Landmark Communications v. Virginia, 435 U.S. 829 (1978). See 
also Zurcher v. Stanford Daily, 436 U.S. 547, 563-67 (1978), and id. at 
568 (Justice Powell concurring); Branzburg v. Hayes, 408 U.S. 665, 709 
(1972) (Justice Powell concurring). Several concurring opinions in 
Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), imply recognition 
of some right of the press to gather information that apparently may not 
be wholly inhibited by nondiscriminatory constraints. Id. at 582-84 
(Justice Stevens), 586 n.2 (Justice Brennan), 599 n.2 (Justice Stewart). 
On the other hand, the Court has also suggested that the press is 
protected in order to promote and to protect the exercise of free speech 
in the society, including the receipt of information by the people. 
E.g., Mills v. Alabama, 384 U.S. 214, 218-19 (1966); CBS v. FCC, 453 
U.S. 367, 394-95 (1981).

        The most interesting possibility lies in the area of First 
Amendment protection of good faith defamation.\38\ Justice Stewart 
argued that the Sullivan privilege is exclusively a free press right, 
denying that the ``constitutional theory of free speech gives an 
individual any immunity from liability for libel or slander.''\39\ To be 
sure, in all the cases to date that the Supreme Court has resolved, the 
defendant has been, in some manner, of the press,\40\ but the Court's 
decision that corporations are entitled to assert First Amendment speech 
guarantees against federal and, through the Fourteenth Amendment, state 
regulations causes the evaporation of the supposed ``conflict'' between 
speech clause protection of individuals only and of press clause 
protection of press corporations as well as of press individuals.\41\ 
The issue, the Court wrote, was not what constitutional rights 
corporations have but whether the speech which is being restricted is 
expression that the First Amendment protects because of its societal 
significance. Because the speech concerned the enunciation of views on 
the conduct of governmental affairs, it was protected regardless of its 
source; while the First Amendment protects and fosters individual self-
expression as a worthy goal, it also and as important affords the public 
access to discussion, debate, and the dissemination of information and 
ideas. Despite Bellotti's emphasis upon the nature of the contested 
speech being political, it is clear that the same principle,


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