The Establishment Clause:
A Question of Jurisdiction

by Herbert W. Titus

First:   Defining Religion; No Preference v. No Jurisdiction
Second:   Education, Welfare and Religious Tests
Third:   Establishment Clause Public Policy


For several months I have offered a series of essays on the Establishment and Free Exercise Clauses in my ongoing study of the Bill of Rights. The July issue contained my concluding essay on the two clauses. I write this epilogue because the United States Supreme Court issued its opinion in Rosenberger v. United States,– U.S. -, 63 LawWeek 4702 (1995) after the July Forecast had been sent to the printer.

In Rosenberger, the Court ruled 5-4 that the University of Virginia violated the free speech rights of students by denying to them funds from mandatory student fees to cover the printing costs of a newspaper from a Christian perspective. The sole basis for the University’s denial was that the newspaper “primarily promotes or manifests a particular belief in or about a deity or ultimate reality.” The majority found this standard to be impermissible “viewpoint discrimination” under the Freedom of Speech Clause. Id., 63 LW at 4707.

The dissent disagreed that the University had discriminated against the newspaper’s Christian viewpoint and, therefore, did not violate the Free Speech rights of the students. More significantly, the dissent claimed that the University’s decision not to fund the newspaper was commanded by the prohibition against laws respecting an Establishment of Religion. Id., 63 LW at 4715.

Justice Souter asserted that the majority “for the first time, approves direct funding of core religious activities by an arm of the state.” Justice Kennedy countered with the claim that the University subsidy was not designed to promote the religious activities of the newspaper, but the free exchange of ideas. Hence, there was no Establishment Clause violation because the subsidy program, as approved by the Court, was scrupulously neutral regarding the religious content of the paper. Id., 63 LW at 4708.

Justice Souter, in turn, claimed that government “evenhandedness” was not dispositive of the Establishment Clause issue, because “[a]t the heart of the Establishment Clause stands the prohibition against direct funding.” In support, Justice Souter cited numerous cases striking down government subsidies of sectarian educational institutions even though such subsidies were part of an “evenhanded” educational policy.

Justice Kennedy tried his best to distinguish this case pointing out that the University of Virginia did not directly fund the student newspaper, but sent the money to a third party, the printing company. But he was hard pressed to carry this argument to its logical conclusion:

It is, of course, true that if the State pays a church’s bills it is subsidizing it, and we must guard against this abuse. That is not the danger here … the student newspaper is not a religious institution. Id., 63 LW at 4709.

Only Justice Thomas directly challenged the dissent’s claim that the Establishment Clause absolutely prohibited all direct funding of religious activities. He noted first that the statement was not historically true:

To take but one famous example, both Houses of the First Congress elected chaplains … and that Congress enacted legislation providing for an annual salary of $500 to be paid out of the Treasury … This same system of “direct public funding” of congressional chaplains has “continued without interruption ever since that early session of Congress.” Id., 63 LW at 4713.

Second, he chided the dissent for making such a big deal out of the form of subsidy:

Consistent application of the dissent’s “no-aid” principle would require that “a church could not be protected by the police and fire departments ….” Surely the dissent must concede … that the same result should obtain whether the government provides the populace with fire protection be reimbursing the costs of smoke detectors and overhead sprinkler systems or by establishing a public fire department. If churches may benefit on equal terms with other groups in the latter program that is, if a public fire department may extinguish fires at churches then they may also benefit on equal terms in the former program. Id., 63 LW at 4714.

Finally, he went for the jugular:

Under the dissent’s view … the University of Virginia may provide neutral access to the University’s own printing press, but may not provide the same service when the press is owned by a third party … The constitutional demands of the Establishment Clause may be judged against either a baseline of “neutrality” or a baseline of “no aid to religion,” but the appropriate baseline surely cannot depend on the fortuitous circumstances surrounding the form of aid. Id., 63 LW at 4714-15.

None of Thomas’s majority colleagues were so bold. As noted above, Justice Kennedy went out of his way to point out that the money did not go directly to the religious students. In doing so, he reinforced, rather than undermined, the legitimacy of the “no-aid principle” as stated by the dissent.

Justice O’Connor, in her concurring opinion, expressly gave aid and comfort to the dissent’s “no-aid principle.” She merely disagreed on its application. She found that the case could not be resolved on the basis of the “no-aid principle” without contradicting the “religious neutrality principle” so she sought a middle ground on the specific facts of the case:

This case lies at the intersection of the principle of government neutrality and the prohibition on state funding of religious activities … When bedrock principles so conflict, understandably neither can provide the definitive answer. Id., 63 LW at 4710.

She found that the University through public disclaimers and careful control of the funds made it clear that the neutrality principle would be painstakingly observed. Then she pointed out that the no aid principle could be vindicated by allowing a student to opt out of paying the mandatory fee if it was being used “to pay for speech with which she disagrees.” Id., 63 L W at 4711.

What is interesting about this latter point is that O’Connor sustained it by citing two cases relieving public employees and lawyers from paying mandatory dues to the extent that those dues were being used to support political views with which the dues payer disagreed. Both of those cases relied upon the Freedom of Speech Clause. See Keller v. State Bar of California, 496 U.S. 1, 15 (1990); Abood v. Detroit Board of Education, 431 U.S. 209, 236 (1977).

Even Justice Kennedy invited students at the University of Virginia “to demand a pro rata return [of the mandatory fee] to the extent the fee is expended for speech to which he or she does not subscribe.” Id., 63 L W at 4708.

By invoking these precedents to satisfy the “no-aid principle,” the majority may have opened the door to future claims that the Establishment Clause prohibits direct government subsidization of the propagation of any opinions, religious or otherwise. After all, the Abood and Keller precedents are rooted historically in a principle embraced by Thomas Jefferson in the preamble to the 1786 Virginia Bill for Establishing Religious Freedom:

[T]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.

Although the dissent quoted this phrase with approval, and without splicing “religious” in between “of’ and “opinions” as has been the court’s practice in the past, Justice Souter used the Jeffersonian legacy to perpetuate the myth that he was concerned only about state subsidies of religious opinion. Nothing could be further from the truth.

Jefferson recognized that the no-establishment principle prohibited tax subsidies for the propagation of all opinion, religious or otherwise:

that to suffer the civil magistrate (tax-supported public school teacher) to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles, on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own.

Jefferson stated that true religious freedom was the “freedom of the mind,” including freedom of the mind in “physics and geometry.” That is why he concluded his Preamble to his 1786 statute on Religious Freedom with a portrait of the free marketplace of ideas:

that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted to freely contradict them.

For years the Court has disregarded this expansive understanding of the Religion Clauses. By limiting those Clauses to “religious” institutions, activities, and speech, they have created a dilemma, not of the constitution’s making, but of their own. On the one hand, the Establishment Clause demands that the government not subsidize religious matters; on the other hand, the Freedom of Speech Clause demands no discrimination against the expression of private viewpoints, religious or otherwise.

This dilemma is especially real in cases concerning tax-supported educational institutions. When the government enters the education field, it necessarily enters the business of the propagation of opinions. If religious opinions are excluded from education because of the Establishment Clause, then as Justice Kennedy pointed out:

That eventually raises the specter of government censorship, to ensure that all student writings and publications meet some baseline standard of secular orthodoxy. Id., 63 LW at 4709.

To the majority’s credit, they used the Free Speech clause to counter the University of Virginia’s false claim that it had to discriminate against religious viewpoints in order to remain “religiously neutral.”

On the other hand, the majority failed to see that so long as the government is in the education business, it must be in the business of censoring ideas. Teachers hired by the state censure the views of students in classrooms every day. School administrators and school boards, likewise, censure the teachers and the libraries. No one can operate any school system – primary, secondary, undergraduate or graduate – without supervising the ideas that are taught and requiring conformity to certain “baseline truths.”

The problem with Rosenberger is the same as it has always been. Public education cases that have come to the Court under the Establishment Clause have always been argued on a false premise, both factually and legally.

As to fact, both the litigants and the Court have presupposed that one can adhere to the principle of religious neutrality in education. The Rosenberger case, if it reveals nothing else, demonstrates that education in America is hardly neutral towards students and faculty who attempt to apply a Biblical perspective to the subject matters taught and discussed. Christian students and faculty have to fight for the right to be heard; non-Christians are not only permitted, but encouraged through tax subsidies, to make their views known.

The claim of religious neutrality in education is simply a myth. This is especially true in a school classroom. In the name of religious neutrality, the Court has excluded prayer and the Bible as the revealed word of God. In doing so the Court has imposed a “secular” world view that “excludes from the public school a Christian philosophy of education because it forbids expressing the fear of the Lord through prayer and hearing the Word of God from the Bible.” Titus, Public School Chaplains: Constitutional Solution to the School Prayer Controversy 10 (1992).

As for the law, the Religion Clauses were never designed to isolate religious views for special constitutional treatment. To the contrary, the two Clauses were designed to get the government out of the “opinion” business, leaving the exchange of ideas to the voluntary choice of the people.

Religious opinions are but a subset of the general principle that “Almighty God has created the mind free.” To preserve that freedom, the Religion Clauses deny absolutely and totally any and all civil jurisdiction over the marketplace of ideas. That marketplace, in the words of James Madison, is to be governed solely by “reason and conviction” – not by force and violence – “because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men.”

Until the Court returns to this basic first principle, it will continue to create constitutional predicaments unresolvable by any defensible principles. The time is ripe to challenge tax-supported education as a violation of the Establishment Clause and to return to the unalienable right of the freedom of the mind envisioned by Thomas Jefferson and James Madison.

First:   Defining Religion; No Preference v. No Jurisdiction
Second:   Education, Welfare and Religious Tests
Third:   Establishment Clause Public Policy


*     Copyright © 1994, 1995, 2021 Herbert W. Titus. This article originally published in The Forecast, Vol. 1, Nos. 13-24 and Vol. 2, Nos. 1-4 (1994-95). For nearly thirty years Herbert W. Titus taught constitutional law at four different A.B.A.-approved law schools. From 1986 to 1993 he was the founding dean of the law school at Regent University.