Church and state, again


A few weeks back, the Supreme Court heard oral arguments in a case that could once again redraw the line separating church and state. The court has not been clear where that line is. Sixteen years ago, then–Chief Justice William H. Rehnquist ruled that a Washington State scholarship program could not support study for the ministry at a seminary. Three years ago, Chief Justice John G. Roberts Jr. held that public money could be used to resurface a playground at a church daycare center.

These two outcomes are complete opposites. Bear in mind, the Constitution contains no provision requiring “the separation of church and state.” Two religion clauses are in the First Amendment, one guaranteeing religious liberty, the other forbidding the government from establishing a religion. They were added because of Britain’s established church, the Anglican Church, also known as the Church of England. To be a full-fledged citizen in the British 18th century meant that you had to subscribe to the established church if you wanted the right to vote and hold public office.

The Supreme Court did not investigate church-state relations until the mid-20th century. New Jersey provided transportation for all students to and from all schools, public or private, secular or religious.

In upholding the law as a child welfare program, Justice Hugo Black set out the groundwork for the American understanding of the relationship between church and state: “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 … 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 … 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.’”

With that statement, Black enshrined the metaphor of “the separation of church and state” into the Constitution. Long ago, when I attended a small-town public school, we began the day by reciting the Lord’s Prayer and the Pledge of Allegiance. After Black’s ruling, the recitation of the Lord’s Prayer became unconstitutional, though many public schools continued the practice. The Montana case now before the court involves a program allowing a tax credit of up to $150 to taxpayers who contribute to an organization that grants scholarships to students attending any private school. Most schools in the state are affiliated with religious groups.

The Montana Constitution bans the state’s involvement with any religion. The provision is stricter than the U.S. Constitution’s establishment clause. It reads, “The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.” 

The state department of revenue determined that none of the scholarships could be used for students attending a parochial school. After the Montana Supreme Court agreed, the state ended the program. But a group of parents led by Kendra Espinoza challenged the decision because they needed the scholarships to send their children to Christian schools.

Law professor Garrett Epps pinpoints the argument espoused by the lawyer for Espinoza that may persuade the court’s conservative majority to rule in favor of public funding of children attending religiously affiliated schools. The lawyer argued that the provision in the Montana constitution arose because of late 19th century anti-Catholic bias. However, according to Steven K. Green, another law professor and author of “The Bible, the School, and the Constitution,” no evidence exists that anti-Catholic attitudes were prevalent at the time the Montana Constitution was written in 1889 or revised in 1972.

Anti-Catholic bias leads to the second religion clause, namely religious liberty. But the question is whether a court majority will conflate religious freedom with a payment of tax dollars for use to pay tuition at a parochial school.

Perhaps Justice Tom Clark long ago wisely suggested, “the place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church, and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality.”

The court will rule on the Montana tax credit case by June.


Jack Fruchtman, a part-time Aquinnah resident, taught constitutional law and politics for over 40 years.