I. Introduction
II. The Disputed Definition of Neutrality
     A. The Ideal of Neutrality
     B. The Rise of "Affirmative Action"
     C. The Alternative of Nondiscrimination
III. Sources of the "No-Entanglement" Principle
     A. The Church Control Cases and "Neutral Principles"
     B. The "Religious Belief" Cases
     C. The "Excessive Entanglement" Prohibition
IV. Entanglement with Religion by Prohibiting Aid to "Sectarian" Institutions
     A. Everson and Allen: The Statement of the Problem
     B. The Adoption of the Prohibition: Lemon and Tilton
     C. The Ambiguities in the "No Aid to [Pervasively] Sectarian Institutions" Rule
          1. Does "Sectarian" Mean "Denominational" or "Intensely Religious"?
          2. Can Classwide Determinations Avoid Entanglement?
V. Entanglement with Religion by Exempting Believers from Otherwise Valid Laws
     A. The Belief/Action Distinction and its Decline
     B. Sherbert and the Protection of Religiously Motivated Conduct
     C. Recent Trends
     D. Can Theological Reckoning Be Avoided?
VI. The Nondiscrimination Alternative
     A. The Easy Cases: Nondiscriminatory, Facially Neutral State Action
     B. The Moderately Difficult Cases
          1. State Action Recognizing Religion but Employing Secular Criteria
          2. State Action that is Facially Neutral, but Discriminatory
     C. Hard Cases: The Permissible Use of Religion as a Basis for Classification
          1. Special Treatment to Avoid Entanglement
          2. Exemptions, as a Matter of Legislative Grace, to Promote Secular Ends
          3. Providing "Space" to Religion
          4. Odd Cases: Historically Sanctioned Practices
VII. Conclusion

The United States Supreme Court's treatment of the first amendment's religion clauses [FN1] over the last fifty years has generated considerable controversy. While few religion clause cases reached the Supreme Court prior to 1940, [FN2] the number steadily multiplied once the first amendment was incorporated into the fourteenth amendment. [FN3] The Court's doctrinal development was incremental and uncertain, but by 1971 the Court had developed a test for each of the religion clauses [FN4] to evaluate the constitutionality of challenged state action. Although these tests have not been followed with perfect fidelity, [FN5] they have been the starting point for virtually all of the religion clause cases decided by trial and appellate courts in the last fifteen years. Only recently has a majority of the Court shown willingness to depart from the basic philosophy contained in these two tests.

The controversy surrounding the religion clauses has been characterized as a conflict between the ideals of equality in treatment and equality in result. [FN6] Hence, when state action will have an effect upon religious activity, either by aiding it [FN7] or hindering it [FN8] the question is whether the state should seek to neutralize its impact [FN9] or simply treat all parties alike? [FN10]

This article uses the term "affirmative action" [FN11] to describe the position favoring equality of result, and "nondiscrimination" to describe the position favoring equality of treatment. Sections IV and V of this article trace the development of both of the Court's tests and suggest that, until quite recently (and continuing in important respects) the Court has adopted the affirmative action approach, mistakenly attempting to equalize the effects of state action on religious activity. [FN12] The "nondiscrimination" approach, first articulated by Professor Philip Kurland, [FN13] would instead focus primarily upon whether the state action is discriminatory. [FN14]

One of the consequences of the "affirmative action" approach is that it tends to create conflict [FN15] between the two clauses. As Justice Rehnquist has noted, the overlapping demands of the two clauses have become a "Scylla and Charybdis" [FN16] through which government authorities navigate at their peril. This results in doctrinal incoherence and the appearance of arbitrariness. [FN17]

An extended argument could be made that courts should confine themselves to passing upon the means utilized by the state in seeking its goals, rather than upon the ends whose achievement is being sought. Professor Bickel made this argument eloquently in the course of a critique of the Warren Court:

More than once, and in some of its most important actions, the Warren Court got over doctrinal difficulties or issues of the allocation of competences among various institutions by asking what it viewed as a decisive practical question: If the Court did not take a certain action which was right and good, would other institutions do so, given political realities? The Warren Court took the greatest pride in cutting through legal technicalities, in piercing through procedure to substance. But legal technicalities are the stuff of law, and piercing through a particular substance to get to procedures suitable to many substances is in fact what the task of law most often is. [FN18]

Translated into the context of the debate over equality in treatment versus equality in result, the Bickel position would counsel that courts are ill- equipped to judge whether a particular state action has a positive or negative effect upon religious liberty. Such a standard invites both inappropriate deference [FN19] and inappropriate usurpation. [FN20] Instead, the Court should focus upon whether or not the state action represents a nondiscriminatory means of achieving some appropriate goal. However, the debate over generalized constitutional philosophy is far beyond the scope of this article. Instead, this article focuses upon the fact that the process of employing the affirmative action standard does substantial damage to religious liberty by entangling the Court in sensitive theological issues. Moreover, it has required constant skirmishing over the precise "balance" to be struck in particular cases. For example, in County of Allegheny v. American Civil Liberties Union, [FN21] the Court was markedly split over whether a creche and/or a menorah constituted an establishment of religion if displayed in a public building.

Since the affirmative action approach requires close scrutiny of the effects of state action upon religion, it requires courts to make judgments about what theological consequences--either to particular individuals or to a religion as a whole--will follow from whatever state action is being challenged. [FN22] This kind of theological inquiry has been routinely eschewed in a long series of cases involving church control and other issues. Justice Stevens has identified the "overriding interest in keeping the government-- whether it be the legislature or the courts--out of the business of evaluating the relative merits of differing religious claims." [FN23] As Dean Ely has noted, "[A]n impact test of any variety would force legislators and administrators to make judgments of just the sort the framers of the First Amendment sought to discourage by the inclusion of the religious provisions." [FN24] I call this concept the "no-entanglement" principle.

Section II of this Article will briefly review the general outlines of the affirmative action/nondiscrimination dispute, and provide an overview of the major Supreme Court opinions on the religion clauses. Section III reviews the sources of the "no-entanglement" principle. Then sections IV and V demonstrate the entanglement caused by the "affirmative action" approach in two areas: (1) the school aid cases, where "sectarianness" of a school must be measured to determine how much benefit is derived from state aid to education; and (2) the free exercise cases, where "theological damage" must be measured to determine whether state action has interfered with free exercise. Finally, section VI describes how the alternative approach of nondiscrimination would resolve the very cases that have troubled the Court to date.

II. THE DISPUTED DEFINITION OF NEUTRALITY

A. The Ideal of Neutrality

Most courts and commentators [FN25] agree that neutrality should characterize the state's treatment of religion. In Epperson v. Arkansas, [FN26] the United States Supreme Court stated that "[g]overnment in our democracy, state and national[,] must be neutral in matters of religious theory, doctrine, and practice." [FN27] What has divided the courts and commentators is the definition of that prized neutrality. The language and legislative history of the religion clauses themselves are far from conclusive. While some scholars have suggested that the religion clauses were intended to protect rather than prevent state aid to religion, [FN28] the received wisdom has been that the religion clauses were designed to erect "'a wall of separation between church and State." [FN29] Even assuming that the framers' [FN30] intent could be more precisely defined, there is an additional question of whether their understanding of the religion clauses is binding upon later generations. [FN31] Thus, those who proffer theories of the religion clauses are well advised to spend less time scrutinizing the language of the clauses and their legislative history, and more time demonstrating that a proposed theory operates in a logical and consistent fashion to generate acceptable results. [FN32]

B. The Rise of "Affirmative Action"

As noted above, the religion clauses commanded almost no attention from the United States Supreme Court before 1940. Since then, however, the Court has steadily moved toward what this article terms an "affirmative action" view of the religion clauses. This thesis is graphically demonstrated by Table 1, which summarizes the important religion clause cases in the last fifty years. [FN33] About half of the cases in Table 1 consist of a facially neutral state action that was attacked by a party claiming that the effect of the statute was to promote or inhibit religion. Sometimes state action was challenged because it conferred a benefit or imposed a burden based on a religious classification, [FN34] but more often the complaint was that the state action should have done so and did not. The remaining cases concerned such issues as church control, [FN35] and other general first amendment principles. [FN36]

Although the Court ultimately found the state action constitutional in many cases, it usually did so only after evaluating the effect of the state action: it found either the advancement (or inhibition) of religion was not present, or that under the circumstances it was "acceptable." [FN37] This "ad hoc balancing process" [FN38] is troublesome as a matter of judicial philosophy, [FN39] but the difficulty is magnified by the Court's conclusion that there is tension between the establishment and free exercise clauses. [FN40] Any state action that affects religion may be attacked either because it fails to help religion, or because it helps religion too much. While the cases do not reflect a consistent pattern, the votes of the individual justices are quite revealing. For example, of twenty-seven cases decided between 1971 and 1988, Justice Brennan found the challenged state action constitutional in only three of them. [FN41] Justice (now Chief Justice) Rehnquist, on the other hand, found the state action unconstitutional in only one of those cases, and that was the denial of equal access by religious groups to a state university's facilities. [FN42] The most fundamental difference in the attitudes of different members of the Court is thus not between so-called "strict separation" and "accommodation," [FN43] but between those who tend to strike down otherwise neutral state action which produces an undesirable result, and those who permit state action to affect religion so long as its operation is nondiscriminatory. On balance, those who favor nondiscrimination have been in the minority. However, recent trends indicate that they may now constitute a majority of the Court. [FN44]

Since the "affirmative action" practiced by the Court requires constant supervision of state action to insure that it neither aids nor hinders religion unduly, it is not surprising that the court finds "tension" between the two religion clauses. 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 clash with the other." [FN45] On more than one occasion, the Court has been forced to decide whether an action required by one clause would simultaneously violate the other clause. For example, in Sherbert v. Verner, [FN46] the Court held that South Carolina could not refuse to pay unemployment compensation to a Seventh-Day Adventist where her failure to accept a job requiring Saturday work was religiously motivated. In so holding, the Court found that there was no violation of the establishment clause. [FN47] Similarly, in Committee for Public Education & Religious Liberty v. Nyquist, [FN48] the Court held that aid to private, mostly religious schools, violated the establishment clause, even though the state had designed the aid in part to foster free exercise values. [FN49] Such cases dredged out the narrow channel between "Scylla and Charybdis" of which Justice Rehnquist complained. [FN50]

The characterization of the case as an "establishment clause" case or a "free exercise" case can be decisive. [FN51] In Caldor, Inc. v. Thornton, [FN52] for example, employers challenged a Connecticut statute requiring them to accommodate employees' religious scruples against working on their Sabbath. The Supreme Court held the statute to be an impermissible advancement of religion. Although the Court had held in Sherbert that a state unemployment benefits system was constitutionally required to do the same, [FN53] Sherbert was not even mentioned in the Court's opinion. Despite the doctrinal frustrations created by its "ad hoc" approach, the Court has regarded its flexibility not as an embarrassment, but as a source of pride. [FN54]

C. The Alternative of Nondiscrimination

Most of the criticism of the Court and the related debate on the religion clauses has resulted from differences of opinion as to how best to balance the apparently competing clauses. Several commentators suggest that the Court should recognize one clause (usually free exercise) as more important or fundamental than the other, and thereby reduce the apparent conflict. [FN55] But there is an alternative. Almost thirty years ago, in a widely noted--but uniformly rejected [FN56] article and book, [FN57] Professor Kurland suggested a procedurally neutral approach to the religion clauses:

The proper construction of the religion clauses of the first amendment is that the freedom and separation clauses should be read as a single precept that government cannot utilize religion as a standard for action or inaction because these clauses prohibit classification in terms of religion either to confer a benefit or to impose a burden. [FN58]

"[I]n short, the first amendment requires government to be 'religion-blind,' as the fourteenth requires it to be colorblind." [FN59] Today, of course, there is deep division over whether in fact the fourteenth amendment requires government to be colorblind. Proponents of affirmative action in matters of race suggest that only by making special allowance for past discrimination can government be truly neutral with respect to race. [FN60] The race analogy is a useful one, because it is clear that the Court has generally rejected the "religion-blind" approach in favor of one which looks toward religious motivation of the affected party, as a factor in distributing benefits and burdens.

It bears repeating that the purpose of this article is not to argue that the nondiscrimination alternative is more closely attuned to the intent of the framers [FN61] of the religion clauses, or that it is better social policy. The contention here is that only the nondiscrimination approach will minimize the substantial damage done to religious liberty when government attempts to resolve essentially theological questions. This damage occurs whenever government is required to determine: (1) whether a belief is religious; (2) what effects state action will have upon the religion; and (3) whether the state interest is more or less important than the religious interests at stake. As the next section indicates, this type of determination has generally been found inappropriate for the government.

III. SOURCES OF THE "NO-ENTANGLEMENT" [FN62] PRINCIPLE

Despite the tendency of the Court's tests to enmesh the judiciary in theological measurement, elsewhere the Court has firmly stated that the judiciary should avoid wading into theological controversies. First, in the "church [FN63] control" cases, the Court has consistently declared questions of orthodoxy and heresy off-limits, even where struggles for control of church property appear to require determination of whether one group or another is correct as to the founding tenets of the church. Second, where criminal liability hinged upon religious beliefs, the Court has not permitted juries to examine the truth or falsity of the religious beliefs themselves. Third, in distributing state benefits or burdens, such as tax exemptions, the Court has proscribed "excessive government entanglement with religion." [FN64] Finally, recent Court opinions have explicitly recognized the danger of using religious beliefs as a basis for government action.

A. The Church Control Cases and "Neutral Principles"

In the church control cases, the no-entanglement principle was developed incrementally. It began with the not uncommon case of dissension within a church body leading to a dispute over the right to control church property. In Watson v. Jones, [FN65] the Court distinguished three different forms of church organization: (1) those that derive authority from a particular doctrine; (2) those that derive authority from local congregations, (3) and those that are governed hierarchically. [FN66] The Court asserted the authority to decide questions of doctrine where doctrine itself was the source of authority, but it held that in cases involving hierarchically or congregationally organized bodies courts had a duty to defer to the structure used by the church to decide disputes. [FN67] Otherwise, the civil courts would inject themselves into essentially religious controversies, thereby violating the principle of freedom of religion. [FN68]

In 1969, the Court made its withdrawal complete when it specifically rejected the authority initially claimed in Watson v. Jones to decide issues of doctrine. In Presbyterian Church v. Hull Church, [FN69] the Court was again confronted with a local congregation that had decided it was no longer bound by the authority of the general church body. Under Georgia law, an implied trust theory applied to church property: local churches held property for the benefit of the general church, but the general church retained control upon condition that it adhered to the "tenets of faith and practice existing at the time of affiliation by the local churches." [FN70] When there was a "departure from doctrine," the general church's interest in the trust property terminated. The local churches in this case had alleged precisely such a departure, and the Georgia courts agreed. [FN71] The jury was asked to determine whether the actions of the general church "amount[ed] to a fundamental or substantial abandonment of the original tenets and doctrines of the [general church], so that the new tenets and doctrines are utterly variant from the purposes for which the [general church] was founded." [FN72]

A unanimous Court reversed the Georgia Supreme Court. Justice Brennan's opinion noted that, although there might be cases in which a court could appropriately involve itself in doctrinal disputes, [FN73] there are important first amendment limitations. When forced to decide a question of the legal right to control property, courts must rely upon "neutral principles of law" to resolve such disputes, because "First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice." [FN74]

The next step in the evolution of the no-entanglement principle, as applied to church control cases, came in Serbian Eastern Orthodox Diocese v. Milivojevich. [FN75] The Serbian Orthodox Church, which was conceded to be a hierarchically organized church, suspended and ultimately defrocked a bishop by the name of Dionisije. In the process it also revoked some of the organizational changes made by Dionisije. [FN76] Dionisije sued, claiming that the church had not followed proper church procedure in defrocking him. [FN77] The Illinois Supreme Court granted him relief. However, the United States Supreme Court reversed. In Milivojevich, the Court extended first amendment protection beyond substantive theological issues [FN78] but also to the procedural decisions made by the highest ecclesiastical tribunals of a hierarchical church. [FN79]

Thus, the church control cases have followed a relatively consistent pattern, [FN80] which has moved the Court further away from involvement with theological controversies. Not only is involvement in the substance of theological disputes forbidden to civil courts, but even jurisdiction over "procedural" disputes must be severely limited to prevent a civil court from usurping the right of a church to self-governance.

B. The "Religious Belief" Cases

Tending in the same direction away from involvement with theological controversies, though not so decisively, have been the cases raising the issue of individual belief. This issue arises most frequently where the free exercise of religion is asserted as a defense or basis for exemption from the enforcement of civil or criminal law. To evaluate whether the free exercise of religion is implicated, the courts must consider at the outset whether a belief is "religious." They must also consider what effect the state action at issue would have upon religious practice. Such cases clearly present courts an opportunity to engage in theological reckoning. However, the Supreme Court has expressed great reluctance to do so. [FN81]

1. United States v. Ballard

In United States v. Ballard, [FN82] Guy Ballard [FN83] claimed to have supernatural powers, such as the ability to cure diseases. [FN84] Based on these claimed powers, he formed the "I am" movement, and supported it by soliciting funds and memberships. After some disaffected members complained, he was charged with mail fraud. The indictment charged that Ballard had made representations of such ability which he knew to be false. At trial, the judge instructed the jury that they were not to consider whether the defendants' representations were true, only whether Ballard "honestly and in good faith believed them." [FN85] Ballard was convicted and appealed. The Ninth Circuit Court of Appeals reversed the conviction on the ground that it was error for the court to withhold the issue of the truth of the representations from the jury. [FN86] The government then appealed.

Ballard presented the Supreme Court with a nasty dilemma. The Court could agree with the court of appeals and permit the defendant to defend the truth of his theological assertions, thus allowing juries to sit in judgment of which religious beliefs are true or false. Or, it could require the defendant to defend his good faith in making the representations without regard to whether the representations were true or not. Except for Justice Jackson, all the justices thought the latter approach preferable. [FN87] However, Justice Douglas and four other justices remanded the case to the Ninth Circuit for reconsideration of other issues raised by Ballard on appeal. The Court held that the first amendment precluded the option of considering the truth of defendants' religious representations. [FN88]

In sidestepping the question of whether Ballard's beliefs were true, the Court did not solve the problem. If the jury in such cases is instructed that the beliefs are to be presumed true, then there could be no fraud, since the representations would no longer be false. On the other hand, if the jury is told nothing about the beliefs they will follow their own hunches, which in the case of an unpopular religion like Ballard's will incline them to believe that the representations were in fact false and Ballard a charlatan. Only Justice Jackson recognized the unfairness of this result by pointing out that it is impossible to:

separate an issue as to what is believed from considerations as to what is believable. . . . How can the Government prove these persons knew something to be false which it cannot prove to be false? If we try religious sincerity severed from religious verity, we isolate the dispute from the very considerations which in common experience provide its most reliable answer. [FN89]

Moreover, Justice Jackson doubted that representations concerning spiritual phenomena are believed in the same fashion as representations concerning secular matters. [FN90]

2. United States v. Seeger

The next invitation to evaluate individual beliefs came in United States v. Seeger. [FN91] Seeger was convicted of draft evasion after he applied for conscientious objector status and was refused. The Universal Military Service Act [FN92] exempted from military service anyone "who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." [FN93] Section 456(j) defined "religious training and belief" as "an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code." [FN94] Seeger claimed that he was conscientiously opposed to military service, but could not commit himself to a belief in a Supreme Being. However, "his 'skepticism or disbelief in the existence of God' did 'not necessarily mean lack of faith in anything whatsoever;" he had a "belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed." [FN95]

The court of appeals reversed Seeger's conviction, finding that the requirement of belief in a Supreme Being violated the due process clause of the fifth amendment. [FN96] The Supreme Court affirmed but based its holding upon an interpretation of congressional intent rather than constitutional grounds. In construing the language, the Court found that Congress intended to make its category of "religious training and belief" inclusive rather than exclusive. [FN97] Despite an intent to exclude nonreligious views, Congress did not intend to "classify different religious beliefs, exempting some and excluding others." [FN98] The Court thought it particularly inappropriate for Congress or a court to attempt such a classification. [FN99] But while a governmental body is prohibited from determining the theological validity of a person's beliefs, this does not eliminate the need to examine whether those beliefs are sincere. [FN100]

In reaching its decision, the Court relied upon a quote from the theologian, Dr. Tillich. [FN101] One would hope that the Court was not adopting Tillich's theological views by judicial notice. [FN102] Instead, the Court's opinion should be read as demonstrating the Court's recognition that when legal rights are made dependent upon theological categories, a court cannot make a legal determination without at the same time becoming entangled in the most sensitive of theological issues.

3. Welsh v. United States

After adopting Tillich's broad definition of religion, the Court provoked yet more controversy in another draft exemption case, Welsh v. United States. [FN103] Conscientious objectors could be exempted from the draft only if their objection was based on "religious training and belief." But Welsh crossed out the words "religious training and" and rested his claim solely upon his "belief." [FN104] Conceding that the claimant would not describe his beliefs as religious, the Court thought that should not prevent the draft board from doing so. [FN105] The decision can be best understood as an expression of the Court's extreme reluctance to define or quantify religious belief.

4. Thomas v. Review Board

In Thomas v. Review Board, [FN106] the Court reversed the denial of unemployment compensation to a Jehovah's Witness who quit his job for religious reasons. Thomas had been employed at a roll foundry that phased out its non- military production and assigned Thomas to work on tank turrets. After this assignment Thomas quit and applied for unemployment compensation. Thomas was denied unemployment compensation because his termination was not based upon "good cause." [FN107] The Court decided that the free exercise clause protected Thomas' right to compensation. Although only beliefs rooted in religion are protected by the Free Exercise Clause," [FN108] the Court would take a broad view of the definition of what is religious. [FN109] Finally, the Court declined to require that Thomas show that his belief was shared by other members of his sect, some of whom did not have scruples about working on tank turrets. [FN110]

C. The "Excessive Entanglement" Prohibition

A third source of authority for the proposition that the state should not take positions on theological issues is the line of cases in which the Supreme Court declared the state's obligation to avoid "excessive entanglement." The leading case in this area is Walz v. Tax Commission. [FN111] In Walz, the Court upheld the constitutionality of a tax exemption for property used solely for religious purposes. In doing so it described its task as a struggle "to find a neutral course between the two Religion Clauses."' [FN112] In its view the religion clauses seek "to mark boundaries to avoid excessive entanglement" between church and state. [FN113]

The avoidance of "excessive entanglement" was incorporated into the now familiar Lemon test, adopted in Lemon v. Kurtzman [FN114] and its companion case, Tilton v. Richardson. [FN115] These two cases will be considered in detail in section IV. For the moment it is sufficient to point out that the Court based its rejection of two different programs of state aid to parochial schools on the finding that Rhode Island and Pennsylvania could not administer the programs in question without "excessive and enduring entanglement between church and state." [FN116] Similarly, the Court has been reluctant to identify "religious" speech as opposed to other forms of protected speech. In Widmar v. Vincent, [FN117] the Court considered whether a student group's access to a state university's facilities could be limited simply because it was religious activity rather than some other kind of speech: [FN118]

[E]ven if the distinction drew an arguably principled line, it is highly doubtful that it would lie within the judicial competence to administer. Merely to draw the distinction would require the university and ultimately the courts to inquire into the significance of words and practices to different religious faiths, and in varying circumstances by the same faith. Such inquiries would tend inevitably to entangle the State with religion in a manner forbidden by our cases. [FN119]

Recent statements of Justice Stevens in Goldman v. Weinberger [FN120] recognize the importance of these principles in free exercise cases. In Goldman, an Air Force captain (who was also a Jewish rabbi) sued to enjoin the enforcement of an Air Force regulation which prohibited the wearing of unauthorized headgear. Goldman complained that his religion required him to wear a yarmulke, and that forbidding him to do so would force him to violate his religious beliefs. [FN121] Justice Stevens concurred in the Court's opinion upholding the Air Force regulation, but wrote a separate opinion noting that any alternative would involve the Court in evaluating the character and sincerity of the faith of persons requesting exemptions. [FN122]

More recently, the Court considered a free exercise claim by California Indian Tribes whose worship sites were threatened by proposed development within a national forest. [FN123] Justice O'Connor, joined by four other justices, rejected the dissenting justices' suggestion that the Forest Service weigh the inconvenience to the government against the harm that would be inflicted upon the tribes' religious tradition, finding that "such an approach cannot be squared with the Constitution or with our precedents, and . . . would cast the judiciary in a role that we were never intended to play." [FN124]

In short, the Court has routinely held that the religion clauses of the first amendment were intended to keep the state neutral with respect to theological matters. Even where a theological controversy flowers into a legal dispute, the state is required to deal with such disputes neutrally, so as to avoid even the appearance of favoring one set of theological views. However, the affirmative action approach frequently requires that this principle be honored in the breach rather than the observance, as the next two sections of this article demonstrate.

IV. ENTANGLEMENT WITH RELIGION BY PROHIBITING AID TO "SECTARIAN" INSTITUTIONS

The issue of "aid to parochial schools" was highly controversial even before the Court directly addressed it for the first time in 1947. [FN125] Although the Court ostensibly adopted its prohibition against aid to "sectarian" [FN126] private [FN127] schools and colleges [FN128] in order to avoid "excessive entanglement" [FN129] with religion, the Court's standard has the opposite effect. No clear understanding of the problem is possible without a review of the path by which the Court arrived at its current approach.

A. Everson and Allen: The Statement of the Problem

1. Everson v. Board of Education

The court first addressed the issue of aid to parochial schools in the celebrated case of Everson v. Board of Education. [FN130] Everson dealt with a New Jersey taxpayer who challenged the constitutionality of a resolution by the local board of education appropriating funds to reimburse parents for the expense of transporting children to and from the Trenton and Pennington High Schools and the Catholic Schools. [FN131] Justice Black, writing for a narrow majority, found that this form of aid did not breach the "wall between church and state." [FN132] Justice Black first set forth the legislative history of the religion clauses as a basis for interpreting them. [FN133] He concluded that the establishment clause "was intended to erect 'a wall of separation between church and State." [FN134] The "wall of separation" metaphor has had many critics, [FN135] and Justice Black's reliance upon Jefferson's and Madison's personal views has been criticized as inappropriate. [FN136] However, no opinion challenged Justice Black's reading or the conclusion that he drew from it. Justice Black concluded that "New Jersey cannot consistently with the 'establishment of religion' clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church." [FN137]

Nonetheless, Justice Black cautioned, "[W]e must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general state law benefits to all its citizens without regard to their religious belief." [FN138] Exactly how to distinguish the one from the other was never spelled out. Based upon Justice Black's dissenting opinion more than twenty years later in Board of Education v. Allen, [FN139] it appears he had in mind some sort of distinction between general welfare programs and those designed to assist the educational function of the school. [FN140]

It was the dissenting opinions that looked ahead to future cases and attempted to state how the broad principles announced by the Court might be applied. Justice Jackson dissented because he felt the specific reference to "the Catholic schools" was "an essentially religious test." [FN141] But the other dissenting opinion objected to the inclusiveness of the appropriation, rather than its exclusivity. [FN142] Joined by Justices Frankfurter, Jackson, and Burton, Justice Rutledge relied on two major premises. The first was that the first amendment, as applied by the fourteenth, was intended to provide "complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion." [FN143] The second premise was that the education provided at Catholic schools was in fact "religion." [FN144] Justice Rutledge could discern no constitutional middle ground between permitting all aid and permitting none, [FN145] because no rational line could be drawn between the reimbursement of transportation costs and the entire cost of parochial education. [FN146]

One might easily quarrel with the first of Justice Rutledge's two major premises, [FN147] but the more interesting is the second. Justice Rutledge assumed that providing aid to a school run by the Catholic church was indistinguishable from providing aid to the church itself. His argument was quite simple and was based on past Court decisions [FN148] which had provided protection to all forms of religious practice, including street preaching and the distribution of tracts. [FN149] In Pierce v. Society of Sisters, [FN150] the Court recognized the freedom to send children to parochial schools as a right protected by the first amendment. Since the word "religion" was used only once in the first amendment it should be interpreted symmetrically, and thus if a practice was constitutionally protected as an exercise of religion it could not be aided. [FN151]

There are two problems with this argument. The first lies in the use of the Pierce decision for the "symmetry" requirement, since Pierce was based broadly upon the authority of parents to determine the education of their children, not upon any special protection for religious education. [FN152] The second problem lies in determining which institutions are "religious" either for purposes of the rights granted in Pierce or for the disqualification Justice Rutledge believed was required here. Because Everson involved Catholic schools, perhaps it appeared simple to distinguish the religious schools from secular ones. In his dissenting opinion in Everson, Justice Jackson attempted to articulate the sharp difference between the education in Catholic schools and the education in public schools. [FN153]

Even if one were to accept Justice Jackson's dichotomy, or Justice Rutledge's reasoning, [FN154] the problem of identifying which schools are "religious" [FN155] remains. It seems obvious that a private school which was not religious in any way [FN156] should have no difficulty qualifying for state aid. If the disqualifying feature of the sectarian school was that it did an inferior job in providing secular knowledge or skills, the Constitution might require that aid be conditioned upon proof that the state's purposes were being accomplished. [FN157] However, it seems clear that Justices Rutledge and Jackson objected not to the job that religious schools did in advancing the state's interest in education, but to the religious perspective and/or teaching of religious beliefs that comes with the secular education in a religious school. Even assuming that it is appropriate for the state to withhold aid from those who advance religious perspectives along with secular education, how does the state know when an institution is doing so? It may appear obvious in the case of a Catholic school, but what about a military academy like the one in Pierce? What if the military school were to employ a chaplain, or build a chapel, or require attendance at chapel? When would the school become "religious" for purposes of Justice Rutledge's ban? As we shall see below, no line can be drawn which will keep the state (or the courts) from measuring the amount of theological benefit received, and thereby engaging in precisely the kind of inquiry which it has otherwise eschewed. [FN158]

2. Board of Education v. Allen

While Justice Rutledge expressed his opinions in dissent, nothing in the majority opinion rejected his views in principle, only their application, to the facts in Everson. In the next case to consider the problem, Board of Education v. Allen, [FN159] the underlying conflict surfaced. In Allen, the issue was the constitutionality of a New York statute requiring local school districts, upon request, to loan textbooks free of charge to "all children residing in such district who are enrolled in grades seven to twelve of a public or private school which complies with the compulsory education law." [FN160] The majority opinion agreed with Justice Rutledge that form of aid made a difference, but reached the opposite conclusion, [FN161] sustaining the constitutionality of the statute. Writing for the majority, Justice White stated that although books, unlike bus fares, are "critical to the teaching process," and although "in a sectarian school that process is employed to teach religion . . . this Court has long recognized that religious schools pursue two goals, religious instruction and secular education." [FN162] Thus the majority rejected Justice Rutledge's assumption that support of education in religious schools was tantamount to support of the religion itself.

Justice Black, issued a furious dissent on this issue. [FN163] He understood Everson to have permitted only "a general and nondiscriminatory transportation service in no way related to substantive religious views and beliefs." [FN164] He thought state-provided textbooks fell into a completely different classification:

I still subscribe to the belief that tax-raised funds cannot constitutionally be used to support religious schools, buy their school books, erect their buildings, pay their teachers, or pay any other of their maintenance expenses, even to the extent of one penny. The First Amendment's prohibition against governmental establishment of religion was written on the assumption that state aid to religion and religious schools generates discord, disharmony, hatred, and strife among our people, and that any government that supplies such aids is to that extent a tyranny. And I still believe that the only way to protect minority religious groups from majority groups in this country is to keep the wall of separation between church and state high and impregnable as the First and Fourteenth Amendments provide. The Court's affirmance here bodes nothing but evil to religious peace in this country. [FN165]

Justice Black was understandably upset at the failure of the Court to follow his dicta in Everson. But it is difficult to understand his attempt to make an absolute dichotomy between the two cases. The only new development in Allen was that aid went to the educational function of the school as opposed to its logistical operation. In neither case was the aid dependent on substantive religious views and beliefs.

Apparently it is the similarity between the subsidized activity and religious activity that Justice Black found critical. He was content to subsidize the parochial school in Everson by supplying all school children with bus fares and midday lunches, [FN166] because that was not similar to practicing religion, but he became apoplectic at supplying geometry textbooks. [FN167] While the school bus fare could certainly be justified on another basis, such as assuring children's safety, at what point is the state required to consider what the recipients of state aid will do with it? Justice Black wanted to prevent the aid designed to promote education from being diverted to the support of religion. But the same diversion occurs when the state promotes safety by subsidizing bus fares. [FN168] Moreover, the same problem of diversion occurs when the state hands out free library cards to those who use them to further their own religious goals, or welfare checks to those who use the money to go to church.

B. The Adoption of the Prohibition: Lemon and Tilton

Given the fact that the Supreme Court had never held aid to a private school in violation of the establishment clause, and the Court's broad basis for the holding in Allen, the ruling in Lemon v. Kurtzman [FN169] may have come as something of a shock. While the Court approved aid to religiously affiliated colleges in the companion case of Tilton v. Richardson, [FN170] it struck down similar aid to religiously affiliated schools in Lemon. [FN171] The centerpiece of both cases was the now familiar three-pronged test. A statute challenged under the establishment clause will survive only if it: (1) has a "secular legislative purpose"; [FN172] (2) has a "principal or primary effect that neither advances nor inhibits religion"; [FN173] and (3) does not "foster 'excessive government entanglement with religion." [FN174] The Lemon test has served as the starting point for application of the establishment clause ever since, [FN175] but its announcement was prefaced by a warning that bright lines or tidy distinctions could not be expected. [FN176]

In applying the three-pronged test in Lemon, the Court found that the first prong was easily satisfied. [FN177] As to the second prong of the test, the Court was not prepared to declare itself. It hinted that it might find a violation of the second prong, noting that in its limitations, the state had implicitly acknowledged [FN178] "that these programs approached, even if they did not intrude upon, the forbidden areas under the Religion Clauses." [FN179] Under the third prong the Court found that "the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion." [FN180] The essential vice of the programs was that to enforce the "no teaching of religion" prohibition, the states would be required to police the religious schools. [FN181]

Although it claimed to apply an objective test that was based upon earlier holdings of the Court, the opinion made it clear that the Court saw the Lemon case as one which ultimately required the kind of value judgment extolled in Walz. [FN182] After paying tribute to the social benefit derived from church- related schools, the opinion concluded:

The merit and benefits of these schools, however, are not the issue before us in these cases. The sole question is whether state aid to these schools can be squared with the dictates of the Religion Clauses. Under our system the choice has been made that government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn. [FN183]

But Lemon declined to specify exactly what line was being drawn. While making it clear that open-ended aid to religiously-affiliated schools was now out of the question, the validity of Everson's sanction of bus fares or Allen's approval of textbook purchases was not questioned. Subsequent cases attempted to classify aid according to permissible and impermissible types. Tax benefits were initially disapproved, [FN184] then rehabilitated. [FN185] Statutes providing for instructional materials as well as textbooks, or field trips as well as bus fares, produced a hopelessly divided court which could not agree on whether filmstrip projectors or maps and globes were distinguishable from textbooks, and if so, on what principle. [FN186] Eventually, the cases permitting aid (Everson and Allen) were more or less confined to their facts.

Aside from the fundamental incoherence of the purported distinctions between bus fares, field trips, textbooks, and filmstrips, there is an unexamined distinction between eligible and ineligible institutions. Surprisingly little attention [FN187] has been devoted to this more troubling issue. Assuming arguendo that this disqualification of "church-related elementary and secondary schools" [FN188] were constitutionally required, how are such schools to be identified? As noted above, [FN189] it seems indisputable that if the state awarded funds to a school having no church ties, no provision of the constitution would be offended. [FN190] Thus, there must be some kind of "sectarianism" meter that will tell a state agency or court when the establishment clause has been violated.

This problem is highlighted by Tilton v. Richardson, [FN191] the companion case to Lemon. Whereas in Lemon there was a challenge to receipt by private schools of state financial aid, in Tilton the challenge was to the receipt by church-related colleges and universities of federal aid. [FN192] The Court narrowly [FN193] sustained the constitutionality of the grants, with one minor exception. [FN194] The decisive point for the plurality was a finding [FN195] that the church-related colleges were not "sectarian," thus distinguishing them from the church-related schools in Lemon. [FN196] This was significant because it changed the focus to the primary purpose of the institutions, which in turn significantly reduced the risk of excessive entanglement. In Tilton, the Court provided valuable insight into what it meant by "sectarian." [FN197]

By highlighting the presence of some characteristics [FN198] and the absence of others [FN199] the Court suggested that a "bright line" could be drawn between sectarian and non-sectarian institutions. But this dichotomy is illusory. There is a full spectrum of "fervor," and no line can be drawn without significant entanglement in the most sensitive religious issues. [FN200] Moreover, because of the large financial impact of the determination, it is likely to have profound effects upon educational policy.

Subsequent cases have provided little clarification of what the Court had in mind, although the Court has routinely approved financial aid to colleges. [FN201] For example, in Hunt v. McNair, [FN202] taxpayers challenged the constitutionality of state tax benefits extended to the Baptist College at Charleston. In deciding that the aid was constitutional, the Court noted that:

[A]id 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. [FN203]

Recent cases have reaffirmed the disqualification of "pervasively sectarian" institutions. In Grand Rapids School District v. Ball, [FN204] the Court struck down remedial programs conducted by public school teachers in private schools. It placed great weight on the finding of the trial court that 40 of 41 recipient schools were "pervasively sectarian." [FN205] And in Bowen v. Kendrick, [FN206] the Court considered a challenge to the Adolescent Family Life Act, [FN207] which supplied funding for organizations that provide services and counseling to adolescents. Congress amended the act to require grantees to coordinate their efforts with other institutions, including religious and charitable organizations. [FN208] The act also permitted grants to religious institutions. Although the Court rejected a facial challenge to the constitutionality of the act, it remanded the case for reconsideration of whether any of the grantees were "pervasively sectarian." [FN209]

C. The Ambiguities in the "No Aid to [Pervasively] Sectarian Institutions" Rule

Though widely accepted as the definitive standard for the constitutionality of aid to private schools, the Lemon test presents fundamental inconsistencies. It is almost hopelessly vague, not only about the difference between permissible and impermissible types of aid, but more importantly about how to distinguish eligible from ineligible institutions. The Court seems to take for granted that "sectarian" institutions may not receive state aid. Leaving aside the argument that this decision is itself non-neutral, [FN210] two important questions about this standard remain. First, does the term "sectarian" refer to "denominational" religiosity, or simply to "intense" religiosity? Second, can class-wide determinations of "sectarianism" eliminate the need for case-by-case entanglement?

1. Does "Sectarian" Mean "Denominational" or "Intensely Religious"?

The term "sectarian" had already acquired a meaning before the Court began using it as the litmus test for eligibility for state aid. It is not clear that this first meaning was the one the Court intended to carry forward into the aid cases.

When the Court confronted the problem of "sectarianism" in deciding the "school prayer" cases, [FN211] it was faced with two different but related arguments. There was not only the fear that the state would be involved in favoring religion over nonreligion, but a related fear that organizers of state-sponsored religious exercises would face a herculean task in attempting to avoid a preference for one religion. The second kind of favoritism was termed "sectarianism." [FN212] For example, an expert witness in one case testified that the Bible was nonsectarian, but he later admitted that he meant ""non-sectarian within the Christian faiths." [FN213] This kind of sectarianism provoked much controversy in the nineteenth century public schools. [FN214]

"Sectarianism" in this sense referred to a partiality of one religion over another. [FN215] It seems unlikely that in Lemon and subsequent cases the Court was concerned with the denominational preferences of a particular institution. If the "sectarian" Catholic schools in Lemon had made the inculcation of religion their primary goal, but had been less concerned with "assur[ing] future adherents to a particular faith" [FN216] would that have made a difference in the outcome of the case? One would not think so, but before dismissing the possibility it is worth noting other references to a "denominational" interpretation of sectarianism. In deciding that the college receiving aid in Hunt v. McNair [FN217] was not sectarian, the Court noted that the percentage of Baptists in the student body, sixty percent, was "roughly equivalent to the percentage of Baptists in that area of South Carolina." [FN218] Another reference which might support the "denominational" interpretation of "sectarian" is found in Justice Brennan's dissent in Lemon, noted earlier. [FN219]

On balance, it appears that the Court in the Lemon line of cases was not focusing upon the "denominational" character of the institution, but rather upon the intensity of the religious beliefs. In any case, the "denominational" approach is fraught with peril for two reasons. First, the definition of which institutions are excessively "denominational" or "sectarian" will give extremely broad discretion to administrative agencies [FN220] and trial courts, who are ill-prepared to handle the complex theological questions involved. Agencies and courts will be prone to inject significant doses of religious bias into the decisionmaking process. Since "sectarian" groups often identify themselves in opposition to "mainstream" trends, [FN221] they are most likely to suffer from the kind of discrimination the first amendment was designed to prevent. The second peril is that once standards are articulated for the identification of a "sectarian" institution, modest institutional changes will blur the boundaries and trigger ongoing skirmishes between funding agencies, recipients, and courts. In any event there will be far more of the "excessive government entanglement with religion" [FN222] than the Court thought permissible in Lemon or Tilton. Each of these problems is illustrated in a case which, though it predated Lemon and Tilton by five years, anticipated the Court's approach with remarkable accuracy.

a. The "Ephemeral" Nature of Sectarianism

In Horace Mann League v. Board of Public Works, [FN223] the Maryland Court of Appeals reviewed the dismissal of taxpayer challenges to state construction grants for four church-related colleges. The appellate court reversed as to three of the four colleges, finding that the federal constitution [FN224] prohibited aid to "sectarian" institutions. [FN225] The court went to some length to attempt a definition of "sectarianism," while at the same time acknowledging that "[w]hether or not an educational institution is sectarian in such a legal sense is a rather elusive matter, being somewhat ephemeral in nature." [FN226] "[T]he question of sectarianization depends upon a consideration of the observances, themselves, and the mode, zeal, and frequency with which they are made." The court adopted an astonishing standard which required extensive evaluation of the "mode, zeal, and frequency" of religious observances. [FN227] Fortunately, the court supplemented these broad principles by highlighting a number of "factors" that should be considered in making the final determination. [FN228]

The court's application of its standard is instructive. Of the four colleges involved, two were affiliated with the Catholic Church, and the court had relatively little difficulty finding them sectarian, [FN229] The other two colleges, Hood College and Western Maryland College, were relatively similar, and both had received $500,000 grants. Nonetheless, the court found only Western Maryland to be impermissibly sectarian.

Hood College was affiliated with the United Church of Christ, which had contributed 2.2% of the college's operating budget. However, the representation of the church in the faculty, student body, and administration were not disproportionate. [FN230] Hood College apparently required attendance at chapel, but the requirements did not "call for frequent services, with the student being allowed generous 'cuts' without excuse." [FN231] Western Maryland was affiliated with the Methodist Church, which provided "between 2 and 3% of the [operating] budget" of the college. [FN232] However, whereas Hood College's "stated purposes in relation to religion are not of a fervent, intense, or passionate nature, but seem to be based largely upon its historical background," Western Maryland "characterizes itself as a 'religiously oriented institution' and 'make[s] no bones about the fact that our philosophy at Western Maryland is a Christian philosophy." [FN233] The court also found that Western Maryland "makes a conscious effort to integrate religion, and specifically Christianity, with the curriculum and extracurricular life;" [FN234] and that "the image of the college in the community is strongly Methodist." [FN235] These findings led the court to hold that Western Maryland was "sectarian in a legal sense under the First Amendment." [FN236]

This case bears close examination because it is one of the few judicial attempts to draw the line between a sectarian institution and one which is church-related but not sectarian. [FN237] It initially received some attention by commentators, [FN238] whose concerns receded as Tilton v. Richardson, [FN239] and subsequent cases, made clear that colleges were presumed eligible for state aid.

Horace Mann demonstrates the confusion between using a "denominational" test and using an "intensely religious" test. [FN240] Most of all it demonstrates that a determination of "sectarianism" is a hazardous business. Basing the decision in part on community perceptions of whether an institution is "sectarian" invites a bias favoring "mainstream" religious movements. Groups with relatively unpopular views will inevitably be perceived as more "fervent" or "passionate," whereas those with popular views will appear to be more moderate. [FN241] Similarly, institutions whose religious views are relatively harmonious with secular trends will appear to have a "laissez-faire" approach to the curriculum, allowing maximum "academic freedom." Those institutions whose religious views conflict with secular trends will be more likely to produce an academic curriculum quite different from "mainstream" institutions. In short, since "sectarianism" is largely in the eye of the beholder, the use of such a standard runs a considerable risk of permitting aid to institutions affiliated with ''mainstream" religions, but denying aid to those operated by minority religions. This can hardly be defended as a test consistent with the first amendment.

b. Administration of State Determinations

It might be thought that potential biases could be limited by the development of more specific, objective standards for (pervasive) "sectarianism." Such an approach generates the second major flaw in the Horace Mann case, which is the need for continued monitoring to ensure the institution's compliance with the standards. If one examines the critical differences between the eligible Hood College and the ineligible Western Maryland College, they were mutable characteristics which included statements in official literature about the purpose of the college, chapel attendance policies, and the make-up of college trustees or faculty. Western Maryland College could easily make itself look more like the eligible Hood College. [FN242] Reversing the scenario, suppose Hood College is found eligible in Year 1, but in Year 2 begins to look more like Western Maryland. [FN243] The more specific and objective the criteria, the greater the temptation to make cosmetic changes to gain or retain eligibility. [FN244] As in determinations of qualification under various Internal Revenue Code provisions, [FN245] there would likely be a running battle of form versus substance. Some colleges have already been encouraged to "trade religion for dollars" and have done so. [FN246] The involvement of the state into quintessentially theological issues is strikingly reminiscent of the situation posed in Presbyterian Church v. Hull Church, [FN247] in which Justice Brennan wrote that "[i]f civil courts undertake to resolve such controversies . . ., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern." [FN248]

2. Can Classwide Determinations Avoid Entanglement?

One obvious way to avoid the difficulties of case-by-case determination of sectarianism would be to determine the constitutionality of aid on a classwide basis. [FN249] Indeed, it appears that the Court in fact did so in Lemon and Tilton. The Court's blanket judgment holds that schools may not receive aid, because in the aggregate they tend to be sectarian, but colleges in most cases may, because in the aggregate they tend not to be. This "broad brush" [FN250] approach may appear to resolve the problems illustrated by a case like Horace Mann, but it also creates its own difficulties.

First, this approach reduces, but does not eliminate, the necessity of determining the sectarianness of institutions. Blanket judgments present less opportunity for entanglement than individual determinations for each institution, but they still require a definition of "sectarian" as it applies to a group of institutions.

The second problem with classwide determinations is that there is no clear method of defining the group or class. For example, the possibility exists that a state might institute a "voucher" system by which parents of school-age children would receive one voucher for each child, redeemable by any school satisfying the compulsory education requirements of that state. [FN251] On what basis could a court decide whether the "class" of aid recipients "tended to be sectarian?" Suppose that Wyoming instituted such a program, but limited it to providing vouchers for private schools; should the Court in reviewing the constitutionality of the program look only at the percentage of private schools in Wyoming that are sectarian? What about the percentage of schools expected to be sectarian once the program has been in existence for five years? [FN252] One might argue that the class of schools to be considered should be private schools nationwide. Would the Court be content to rule on one state at a time, thereby creating the possibility that one state would have its program approved while another would not because of different percentages of sectarian schools? On the other hand, would the Court prefer to have all states represented in the litigation so that a final decision could be made?

To compound the problem, what percentage of sectarian schools--again, an extremely difficult animal to identify--should suffice to doom an otherwise constitutional voucher system? A footnote in Aguilar v. Felton [FN253] suggests that the number might be as low as ten to twenty percent. [FN254] If so, a state program admittedly designed to promote secular goals would be struck down as unconstitutional because a small minority of the recipients would be furthering a religious purpose. [FN255] Conversely, if a large percentage of the recipients were permitted to be sectarian, perhaps thirty to forty percent or more, then the whole concept of a strict approach in not aiding sectarian institutions would be abandoned in the process.

Even if sectarian schools comprised a large fraction of all private schools, an enterprising legislator could follow the lead of Mueller v. Allen, [FN256] and expand the class to reduce the percentage of sectarian schools below any conceivable threshold. Suppose, for example, that a state dropped its block funding of public schools and instituted a voucher program that provided tuition grants to parents of children in any school, public or private; the class, as in Mueller, would be increased five or tenfold. Since (at least in the beginning) a very high percentage of the schools redeeming the vouchers would be public schools, how could it be found that the recipients "tended to be sectarian"? [FN257] The Court has previously warned that it is on the lookout for "the ingenious plans for channeling state aid to sectarian schools that periodically reach this Court," [FN258] but it is difficult to see how it could strike down such a plan based on the approach it has taken to date. The Court may be forced to swallow a camel after having strained so long at gnats.

In addition, a majority of the Court has recently expressed opposition to determining the constitutionality of a statute based upon the identity of the recipients; in Mueller, the Court noted that it would be "loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law." [FN259] In Bowen v. Kendrick, [FN260] the Court also rejected a facial challenge to a statute whose beneficiaries included religious organizations, but remanded for further consideration to determine whether any of the beneficiaries could be characterized as "pervasively sectarian." The opinion declared that the remedy for such a finding by the trial court would be to disqualify the particular grant in question, rather than the statute as a whole. [FN261] Thus, the use of a class-wide remedy to avoid case-by-case determinations of "sectarianness" may not be a viable option.

In summary, the apparent advantages of determining "sectarianness" on a class-wide rather than case-by-case basis disappear upon further inspection. Either approach appears fraught with intractable difficulties in implementation. Aside from the question of whether sectarian schools ought to be treated separately, [FN262] the problems of identifying them for purposes of that separate treatment appear insuperable, if the Court's principle of avoiding excessive entanglement is to be honored.

V. ENTANGLEMENT WITH RELIGION BY EXEMPTING BELIEVERS FROM OTHERWISE VALID LAWS

Just as the Court's preoccupation with the effect of state aid for education led to the adoption of the prohibition of aid to religiously motivated institutions, the preoccupation with the effect of state action on individuals has led the Court to require exemptions for religious believers from otherwise valid state laws. Like the "aid to parochial schools" cases, the "free exercise" cases have followed a tortuous path.

A. The Belief/Action Distinction and Its Decline

The Court's treatment of the free exercise clause began on a sensible note. In the first case to address the merits of a free exercise claim, Reynolds v. United States, [FN263] the Court rejected the argument that religiously motivated acts required special privileges. Reynolds argued at his trial on charges of polygamy that he was justified in acting "in conformity with what he believed at the time to be a religious duty." [FN264] An instruction to that effect was refused, and Reynolds appealed his conviction. A unanimous Court [FN265] held that Reynolds' religious beliefs were no defense, citing Jefferson's distinction between "the profession or propagation of principles" on the one hand the protection of which is the essence of religious liberty and the time when "principles break out into overt acts against peace and good order" on the other. [FN266] Jefferson intended the "wall of separation between Church and State" [FN267] to be incorporated in the first amendment. This meant that "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order." [FN268]

In addition, the Court went on to consider the alternate argument that, assuming Congress had authority to outlaw polygamy, [FN269] special consideration should nevertheless be given to polygamists motivated by religious beliefs. The Court rejected this theory:

Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. [FN270]

Reynolds thus generated two principles which could serve to simplify the analysis of conflicts between religious and secular authority. The first was that the government's disability from regulating beliefs was not a limitation on its ability to regulate actions. [FN271] The second was that claims for exemption based upon religious motivation should be viewed skeptically, since the assertion of a spiritual authority superior to the state authority posed a serious threat to secular government. [FN272] While the first amendment jurisprudence of the twentieth century consigned both principles to the dust bin of history, it is time to consider rehabilitating them.

In Cantwell v. Connecticut, [FN273] the belief/action distinction was maintained, although the restatement of the principle opened the door to its later dismantling. The case was decided on broad first amendment grounds, rather than upon any specific feature of the religion clauses. However, the Court's opinion contained two significant statements. First, the Court held that the first amendment's prohibitions applied to the states as well as Congress because of the due process clause of the fourteenth amendment. [FN274] Second, the court restated the belief/action distinction, and in doing so created ambiguities that were later translated into affirmative action principles: "Thus the [first] amendment embraces two concepts--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society." [FN275]

Cantwell moved beyond a simplistic belief/action distinction by recognizing that beliefs are frequently expressed through physical action such as preaching. The Court acknowledged the state's power to regulate conduct in the public interest, but proscribed content-based discrimination against, and perhaps even for, religious activity. [FN276] Thus the Reynolds distinction could be preserved with this gloss: the expression of religious belief is entitled to the same stringent protections as other first amendment expression, but actions motivated by those beliefs are not so protected.

However, this interpretation of Reynolds was ultimately replaced by the standard announced in Sherbert v. Verner. [FN277] In Sherbert, a majority of the Court took the step of saying that not only are beliefs given more or less absolute protection, but actions motivated by those religious beliefs merit as close to absolute protection as possible. Thus, conduct motivated by religious beliefs was to be honored so long as there was no compelling state interest opposing such action. [FN278] This development is traced in the following pages, but it is important to note that there are actually three distinct categories to be considered: first, the beliefs themselves; second, the expression of those beliefs (such as through preaching); and third, the actions motivated by those beliefs. The Court in Cantwell does not appear to have intended to invest the third class with the protection of the "compelling state interest" test, but such was to be the interpretation placed on it by Sherbert.

West Virginia Board of Education v. Barnette [FN279] sowed the seeds for the affirmative action approach to the free exercise clause. Barnette appealed his conviction for refusing to permit his daughter to recite the Pledge of Allegiance. The majority did not rely upon religious liberty in particular, but rather on the proposition that the first amendment protects silence as well as speech. [FN280] As such, Barnette would be a sensible but not a particularly significant opinion for purposes of the religion clauses. Initially, it is difficult to understand Justice Frankfurter's vehement dissent from the opinion. Frankfurter suggested that the attitude of "judicial humility" [FN281] required the court to defer to the legislature's judgment about the need for this patriotic measure. Frankfurter's position is perhaps more understandable when viewed in light of the concurring opinions of Justices Black and Douglas. [FN282] These justices chose to emphasize the specifically religious nature of the objection to the flag salute and to broaden the protection of the religion clauses of the first amendment to encompass actions based on religious belief as well as the beliefs themselves (including the expression thereof). [FN283]

This assertion of a special status for religious beliefs apparently triggered the major thrust of Justice Frankfurter's dissent. He thought that, while the state could not discriminate against religion, the state was not required to refrain from pursuing valid interests because of an adverse effect upon religion. "The validity of secular laws cannot be measured by their conformity to religious doctrines. It is only in a theocratic state that ecclesiastical doctrines measure legal right or wrong." [FN284] If the propriety of the state action were conceded, and an individual only sought excuse from compliance because of religious scruples, it would force the court to determine what scruples were religious. To do so would "resurrect the very discriminatory treatment of religion which the Constitution sought forever to forbid." [FN285]

Justice Frankfurter's analysis is prophetic: [FN286] in Sherbert and its progeny [FN287] the Court adopted both errors cited by Justice Frankfurter. First, it permitted religious beliefs to dictate the enforceability of secular law. Second, it necessitated the Court's definition of what constitutes a "religion" so as to qualify for exemption. [FN288]

The assertion that religiously motivated conduct is entitled to first amendment protection blossomed [FN289] in Braunfeld v. Brown, [FN290] and McGowan v. Maryland, which were decided on the same day. [FN291] Both cases challenged the constitutionality of Maryland's Sunday Closing Laws. In McGowan the Court held there was no violation of the establishment clause, since the statute was designed to serve the secular purpose of providing a common day of relaxation. Although the origin of Sunday Closing Laws was clearly religious, the secular purpose had superseded the religious one: "The cause is irrelevant; the fact exists." [FN292]

The problem in Braunfeld was different, since plaintiff claimed that even if the laws were permissible as applied to those who recognized no other Sabbath, they impermissibly restricted Jews and others who recognized a different Sabbath than Sunday. While the plurality [FN293] denied Braunfeld's requested relief, it restated the test for free exercise challenges in a form closer to the equation of religiously motivated conduct with the expression of beliefs: "The freedom to hold religious beliefs and opinions is absolute. . . . However, the freedom to act, even when the action is in accord with one's religious convictions, is not totally free from legislative restrictions." [FN294] The opinion differentiated cases where the burden on religion is direct, for example where a statute makes a religious practice unlawful, from cases where the burden on religion is merely indirect, making the practice of religion less convenient or more expensive. Where a case such as Braunfeld's falls into the latter category, the statute is valid "unless the State may accomplish its purpose by means which do not impose such a burden." [FN295] Citing numerous practical problems associated with granting an exemption, [FN296] the Court sustained the statute.

Justices Douglas, Brennan and Stewart dissented in separate opinions. Justice Brennan suggested that the "compelling state interest" test applied in Barnette [FN297] should be used to evaluate Braunfeld's claim. [FN298] Since no evidence had been produced that the jurisdictions granting exemptions [FN299] for Sabbatarians had experienced greater difficulties than those not granting exemptions, the Court's judgment "exalted administrative convenience" above religious freedom. [FN300]

B. Sherbert and the Protection of Religiously Motivated Conduct

Justice Brennan's dissenting position in Braunfeld v. Brown [FN301] was transformed into a majority opinion in Sherbert v. Verner, [FN302] decided two years later. Sherbert, a Seventh-day Adventist, applied for unemployment compensation when she was unable to find employment not requiring her to work on Saturday. South Carolina's Unemployment Compensation Act provided that a claimant was ineligible for benefits if she failed "without good cause" to accept work when offered. Because Sherbert failed to accept employment requiring her to work on Saturday, the Employment Security Commission denied her claim, and the South Carolina Supreme Court affirmed. [FN303] The United States Supreme Court reversed and remanded. [FN304]

Justice Brennan's opinion [FN305] provided a new version of the belief/action distinction: "religious beliefs as such" [FN306] may not be regulated but conduct "prompted by religious beliefs," while "not totally free from legislative restrictions," [FN307] is subject to substantially the same protection that is afforded to other first amendment expression. Citing NAACP v. Button, [FN308] the Court held:

If . . . the decision of the South Carolina Supreme Court is to withstand appellant's constitutional challenge, it must be either because [Sherbert's] disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant's religion may be justified by a "compelling state interest in the regulation of a subject within the State's constitutional power to regulate. . . ." [FN309]

Anticipating perhaps that this standard might appear novel, Justice Brennan attempted to demonstrate that wherever regulation of religiously motivated conduct had been permitted in the past, it "invariably posed some substantial threat to public safety, peace or order." [FN310] Where there is no such threat, and the Court found none in Mrs. Sherbert's case, [FN311] the "compelling state interest" test applies.

This approach presented two difficulties. The first and most obvious was the need to distinguish Braunfeld; the Court's answer was that in Sherbert the state could pay the unemployment claim and still achieve its objective, whereas in Braunfeld an exemption "would have rendered the entire statutory scheme unworkable." [FN312] A second and perhaps more serious question was whether the special solicitude required for religion in Sherbert could be reconciled with the prohibition against such solicitude decreed the same day in Abington School District v. Schempp. [FN313] In Schempp, the Court held that Bible reading or recitation of The Lord's Prayer in public schools violated the establishment clause. Justice Brennan denied that requiring an exemption for Mrs. Sherbert constituted an establishment of religion; it reflected "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." [FN314] This is the quintessential statement of the "affirmative action" approach to neutrality, both in result or effect.

In addition to raising questions about distinguishing those forms of accommodation of religion that are required from those that are forbidden, [FN315] this case entails the very kind of "entanglement" courts should avoid. The Court stressed that special treatment for Mrs. Sherbert was acceptable because this was not "a case in which an employee's religious convictions serve to make him a nonproductive member of society." [FN316] Justice Harlan in dissent targeted this comment as an illustration of precisely what was wrong with the majority opinion:

[S]urely . . . the Court cannot mean that the case would have come out differently if none of the Seventh-day Adventists in Spartanburg had been gainfully employed, or if the appellant's religion had prevented her from working on Tuesdays instead of Saturdays. Nor can the Court be suggesting that it will make a value judgment in each case as to whether a particular individual's religious convictions prevent him from being "productive." I can think of no more inappropriate function for this Court to perform. [FN317]

The Court's standard leaves no real escape from Justice Harlan's criticism. First, by making religious belief the touchstone of a constitutional claim for exemption, the Court has inevitably required some determination of whether the claimant's beliefs are religious. [FN318] Second, the test appears to require some balancing between the nature of the burden placed upon religion and the nature of the state interest which must be sacrificed in order to accommodate the religious beliefs. In both areas, courts will be required to measure and evaluate the sincerity, weight and probably the social worth of the believer's views. [FN319]

The seed planted by Sherbert burst into flower in Wisconsin v. Yoder, [FN320] which best illustrates the difficulties with the "affirmative action" approach. James Yoder was convicted of violating the Wisconsin compulsory attendance statute, requiring parents of any child between ages seven and sixteen to enroll their children in school. At trial, Yoder presented evidence of the tenets of his Old Order Amish. The Amish believed that "by sending their children to high school, they would . . . endanger their own salvation and that of their children." [FN321] Expert testimony addressed "the impact that compulsory high school attendance could have on the continued survival of Amish communities as they exist in the United States today." [FN322] One expert concluded "that the modern high school is not equipped, in curriculum or social environment, to impart the values promoted by Amish society." [FN323] The trial court denied Yoder's motion to dismiss based on the free exercise claim, but the Wisconsin Supreme Court reversed. On appeal, the United States Supreme Court affirmed. [FN324]

Significantly, the entire Court [FN325] endorsed the standard adopted in Sherbert: "The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." [FN326] Since there was little dispute that the Wisconsin law burdened the exercise of the Amish religion, the Court focused on whether the state's interests were compelling. Before turning to that issue, the Court considered the argument that granting an exemption would constitute a forbidden establishment of religion. The Court acknowledged that risk, but found it important to adopt a flexible and realistic approach in the application of the religion clauses. [FN327] The Court quoted its self-congratulation in Walz: "[W]e have been able to chart a course that preserved the autonomy and freedom of religious bodies while avoiding any semblance of established religion. This is a 'tight rope' and one we have successfully traversed." [FN328]

Turning to the "compelling state interest" inquiry, the Court considered the two objectives of compulsory high school education proffered by the state. Such education prepared citizens (1) to participate "effectively and intelligently in our open political system," and (2) to be "self-reliant and self-sufficient." [FN329] The Court held that neither of these objectives was defeated by granting an exemption, since the Amish culture produced "a highly successful social unit," whose members "are productive and very law-abiding members of society." [FN330]

In explaining the unique factual pattern of the Yoder case, the Court made revealing comments about the nature of the rule it was applying. First, "[i]t cannot be overemphasized that we are not dealing with a way of life and mode of education by a group claiming to have recently discovered some 'progressive' or more enlightened process for rearing children for modern life." [FN331] Second, the Amish had "convincingly demonstrated" that the state's action posed "hazards" to their "communities and their religious organization." [FN332]

In other words, the two errors which Justice Frankfurter had warned of in his dissenting opinion in Barnette had now been unanimously embraced. First, theological doctrine was now determining the enforceability of state law; second, the Court was now required to measure the pedigree, sincerity and worth of the individual's belief system. [FN333] For example, it appears critical to the Court's opinion that the Amish thought salvation was at stake in the contest between milking cows and programming computers. Their claim for exemption would have been weakened if, like Mohandas Gandhi, they had only believed that manual labor helped improve one's karma, and thereby reduced one's time on the wheel of rebirth. [FN334] Similarly, the Court made it excruciatingly clear that the history of the Amish as a "highly successful social unit" was indispensable. Other parents whose religions were less than one hundred years old (or that were not suitable material for National Geographic) should not trouble their school boards with requests for exemption. [FN335] As Justice Harlan posed the question in Sherbert, is there any more inappropriate function for a Court to perform than to pass judgment on the pedigree or social value of a religion? [FN336]

The case of Thomas v. Review Board [FN337] has been noted in reference to the Court's reluctance to resolve theological controversies. [FN338] The case illustrates that the affirmative action approach will intensify rather than diminish the need to make the distinctions the Court said it wanted to avoid. In Thomas the Court for the first time made it explicit that "only beliefs rooted in religion are protected by the Free Exercise Clause." [FN339] It then becomes critical to determine whether the beliefs held by people like Welsh [FN340] or Seeger [FN341] are religious. The beliefs of Seeger and Welsh were treated as religious for purposes of interpreting Congress's intent in enacting the Selective Service Act. [FN342] Seeger and Welsh exemplify the Court's aversion to differentiating among theistic religious beliefs, nontheistic religious beliefs, beliefs which "occupy the same place" [FN343] in one's life as traditional religious beliefs and nonreligious beliefs. If this is so, what is to be done with the Court's requirement that for free exercise purposes the belief must be religious? Consider the following passage:

One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause; but that is not the case here, and the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect. [FN344]

It seems unlikely that someone like Welsh, who refused to claim that his beliefs were religious, would qualify for free exercise exemption. But if a person uses the magic word "religious," does the Court's standard shift the burden of proof to the state to show an individual's belief to be "bizarre" or "clearly nonreligious in motivation"? How can that determination avoid significant entanglement? Would Paul Tillich's students [FN345] be qualified to form expert opinions as to which concerns are sufficiently "ultimate" for first amendment protection?

C. Recent Trends

As noted above, the Court has recently begun to question the soundness of the holding in Sherbert. [FN346] The rejection of the Army captain's claim for an exemption in Goldman v. Weinberger [FN347] might be attributable to the unique circumstances of the military. However, in Bowen v. Roy, [FN348] a divided Court refused to exempt an American Indian from the requirement that applicants for AFDC benefits obtain a Social Security number for their dependent children. Roy, who had applied for benefits, told the court that his religious beliefs led him to the conclusion that issuing a unique number to his daughter would "rob [her] spirit" and prevent her from attaining greater spiritual power. [FN349] When it turned out that a number had already been assigned, Roy asked for (and received from the trial court) an injunction restraining the use or dissemination of the assigned number, and a further injunction requiring continuation of AFDC payments. Writing for eight members of the Court, [FN350] Chief Justice Burger wrote that the free exercise clause "simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens." [FN351]

Writing for himself and Justices Powell and Rehnquist, the Chief Justice maintained that Roy should not be exempted from the requirement of supplying the Social Security number when applying for AFDC benefits. "[D]enial of such benefits by a uniformly applicable statute neutral on its face is of a wholly different, less intrusive nature than affirmative compulsion or prohibition, by threat of penal sanctions, for conduct that has religious implications." [FN352] Chief Justice Burger attempted to distinguish cases such as Sherbert and Thomas as involving a kind of discriminatory animus in refusing to grant an exemption. [FN353] Here, on the other hand, the state had simply used a reasonable means to promote a legitimate and important public interest.

As previously discussed, [FN354] the Court in the Indian Cemetery case attempted to align its approval of the Forest Service's development plan within the reasoning of Bowen v. Roy: [FN355] no private citizen can expect to dictate the "internal affairs" of the government. However, there is nothing to distinguish the Indians' claim for protection of their burial sites from Mrs. Sherbert's demand for unemployment compensation. In both cases the government was asked to change its procedures in order to accommodate the religious claimant's special needs. Sherbert was not a case of discrimination, in which state action is constitutional so long as it does not single out religious groups for worse treatment than secular groups. [FN356] Rather, the issue is whether the state must change its policies because of the differential impact on religious minorities. Sherbert held that it must; [FN357] Roy held that it need not. [FN358]

D. Can Theological Reckoning Be Avoided? [FN359]

If weaknesses have been exposed in the reasoning and results found in the Court's "affirmative action" approach to the free exercise cases, it may be thought that neutral, nondiscriminatory criteria could be fashioned to achieve "correct" results without the embarrassing gaffes detailed in the cases discussed. Yet no such criteria have been suggested. In fact, it seems inescapable that an approach designed to take into account the peculiar needs of a religious body will require a court to analyze the theological requirements of an individual and in some way to balance the secular goals of the state against the asserted theological goals of the individual claiming a free exercise right. [FN360] Any decision by a court following such an inquiry is bound to compromise the separation between church and state.

For example, is there any doubt that the Court in Thomas correctly limited the coverage of the first amendment to "religious" beliefs? Aside from the textual limitation of the first amendment, how could courts cope with claims of "conscientious objection" to a wide variety of features of the modern regulatory state? If in fact it is the religious nature of the belief that is crucial, can the Court avoid inquiry into how the individual's theology incorporates the command or prohibition? Suppose, for example, that a bank employee decides to quit her job because the bank has refused to divest itself of investments in South Africa, or because it loans money to abortion clinics, or because she feels a "calling" to spend more time with her children? If she asks for unemployment compensation, [FN361] how should the unemployment benefits board treat the claim (under Sherbert) that her action was conscientiously/religiously motivated? As Professor McConnell points out:

Religious recognize degrees of righteousness in various forms of conduct. Not all actions are necessarily required (duties) or forbidden (sins); religion addresses what is "better" as well as what is "good." . . . It may be difficult, however, for an outsider to distinguish religious duties from other religious practices. . . . A person in one religious tradition may feel a religious motivation not a "duty" to engage in a particular action; a person in another tradition might understand the same motivation as a divine calling, the neglect of which would be unfaithful. [FN362]

Identifying whether the claimant falls within one tradition or the other is unavoidable under an "affirmative action" test. The process invites a court to consider how long the particular religion has been in existence, how long the individual claimant has practiced it, and whether the rituals and doctrine of the religion conform to what is usually considered religious. When the Court in Thomas referred to claims which are "clearly nonreligious in motivation," how is a court to make such a determination unless it engages in theological inquiry?

Even if a set of beliefs could be readily identified as religious, it seems inescapable that the court must also consider the temporal and other claimed consequences visited upon those who violate the religious command or prohibition. While the distinction between direct and indirect interferences with religious practice seems to have been lost, [FN363] the decision of whether to grant an exemption seems inevitably influenced by the kind of consequences that would follow from granting or denying the exemption. For example, if only the state's "administrative convenience" is at stake, it will be outweighed by financial loss to the believer. [FN364] If the state's interest in education is at stake, it requires something more substantial, such as evidence that an entire religious culture is at risk. [FN365] If the state's interest is in national defense, not even the imposition of imprisonment for fidelity to one's beliefs will suffice. [FN366] One might fashion a rule which forbids inquiry into the type of consequences that are alleged to flow from the violation of a theological principle, but if that rule requires state accommodation of any claimed theological injury, no matter how de minimis, claims can be expected to increase geometrically.

On the other hand, one might attempt to make the standard dependent solely upon the nature of the state's interest. Where the state's interest is merely administrative, it must bow; where the state's interest is more weighty, it need not. Such a standard might reduce the amount of theological reckoning, but would produce strange results. For example, the application of this standard presumably would have doomed the claim in Yoder, [FN367] but might have supported the claims in Prince [FN368] or Braunfeld. [FN369] An announced rule that mere administrative convenience will always bow to a free exercise claim, with no inquiry into the merits of the free exercise claim, might open the floodgates to claimants. Additionally, there is considerable difficulty in determining the nature of the state interest at stake. Even a "compelling state interest" test is subject to manipulation, because "[t]he level of generality at which the interests are defined often determines the outcome." [FN370]

Given the cost to state neutrality of a rule based on the effects of state action upon particular religious groups, it is time to explore whether a rule based on neutral treatment can be articulated and defended.

VI. THE NONDISCRIMINATION ALTERNATIVE

If in fact the "affirmative action" interpretation of the religion clauses creates unacceptable entanglement in its application, does the nondiscrimination principle promise any relief? An early criticism of Kurland's approach was that the "religion-blind" principle would lead to patently unacceptable results, [FN371] and beyond that, did not eliminate the need to define religion. [FN372] To meet these criticisms, it is necessary to demonstrate two things: first, that the results produced by the nondiscrimination principle, although occasionally different from those reached by the Court to date, are not inconsistent with our understanding of the purpose of the religion clauses and the fourteenth amendment; [FN373] and second, that the method of resolving these cases will minimize, if not eliminate, the forbidden "entanglement."

As a general proposition, the nondiscrimination principle provides easy solutions to formerly hard cases (e.g., parochial aid and the free exercise cases), but it creates a new set of "hard cases." Unless these "hard cases" are explained successfully, they will make the nondiscrimination alternative as unacceptable as affirmative action. To summarize the conclusion reached in this section, most of Kurland's critics ignored an important element in his initial formulation [FN374] of the nondiscrimination principle. Although "government cannot utilize religion as a standard . . . either to confer a benefit or to impose a burden," [FN375] Kurland cautioned that "the principle offered is meant to provide a starting point for solutions to problems brought before the Court, not a mechanical answer to them." [FN376] Most commentators who have considered Kurland's thesis [FN377] have assumed that he intended an absolute prohibition on any classification based on religion. Instead, the presence or absence of classification is a first approximation of neutrality, which begins, but does not end, the determination of whether in fact the state action is neutral in its treatment of religion. [FN378]

A. The Easy Cases: Nondiscriminatory, Facially Neutral State Action

As noted, the Kurland principle would simiplify resolution of formerly hard cases. It would virtually end the constitutional [FN379] debate on most of the troublesome cases involving aid to private schools and claims for special treatment because of religious beliefs. To be more precise, where there is no allegation of discriminatory motive on the part of the state in distributing benefits or burdens, a facially neutral statute, whose purpose is also neutral with respect to religion, could not be challenged simply because it has an effect which "disproportionately" aids or hinders a particular religion. Thus, since the legislative motive for attempting to aid private schools has never been seriously challenged, [FN380] the fact that some religious groups would be "aided" in their religious mission would become irrelevant. Similarly, those who demand a constitutional exemption [FN381] from laws which were admittedly passed for nondiscriminatory reasons would receive short shrift. So long as the challenged statute or state action was not intended to disable or inhibit any religious group, the neutrality principle is satisfied, and the exemption is properly denied. Thus, the major criticism presented in this article--the necessity of determining the existence, fervency, sincerity, and social worth of religious beliefs--is eliminated. Secular government is expected to direct its efforts toward secular goals, and it need not, and in most cases should not, [FN382] modify its course because of its impact upon religious beliefs. The autonomy of religious institutions and of secular government is thus protected. [FN383]

B. The Moderately Difficult Cases

1. State Action Recognizing Religion but Employing Secular Criteria

It would be unrealistic to think that government could function without ever mentioning religion or a religious institution. A state library may purchase religious books, or sign a lease with a church for a parking lot. A state court may enter a judgment against a church for a slip-and-fall on its sidewalk, or in its favor for enforcement of a construction contract. None of these cases appears to violate the principle of neutrality because the state is not basing its decision on a religious classification, but rather on neutral secular principles. In fact, it was such "neutral principles" that required special rules for the church control cases considered earlier. [FN384]

Two recent cases considered by the Court can also be subsumed under this principle. In Lynch v. Donnelly [FN385] the Supreme Court ruled on the constitutionality of the City of Pawtucket's ownership and display of a nativity scene as part of its Christmas decorations. In Edwards v. Aguillard [FN386] the Court ruled on the constitutionality of a Louisiana statute requiring "equal time" for creation science. [FN387] Each case required careful factual analysis.

The Court noted in Lynch that paintings of the Nativity are also hung in the National Gallery [FN388] with no apparent objection; presumably they hang there to promote art, not Christianity. The fact that many viewers may derive religious meaning from the paintings, and that religion is thereby promoted, does not and should not cause the paintings to be excluded. [FN389] Pawtucket made a similar contention about its creche. The creche was not chosen to promote religion, but rather as one of a number of symbols that evoke the "Christmas spirit" (something with its origin in religion but by now a secular phenomenon distinguishable from it), conducive to retail sales. Whether the decision reflected secular criteria, or was motivated by the desire to advance religion, must be determined by the trier of fact. The fact that religion is thereby advanced or inhibited is not decisive. [FN390]

A similar approach, although leading to an opposite conclusion on the merits, was used in Edwards. [FN391] The Court examined the Louisiana Balanced Treatment for Creation-Science and Evolution-Science in Public School Instruction Act, and found that, despite the professed secular reasons for requiring creation science to be taught alongside evolution, the true purpose was "to restructure the science curriculum to conform with a particular religious viewpoint." [FN392] One might easily quarrel with the finding in this case, [FN393] but the process itself cannot be avoided. Where an individual or group claims that state action departed from neutral treatment because of race, sex, or religion, such state action must be examined to determine whether it was based upon neutral criteria or upon impermissible animus favoring or opposing a protected group.

Suppose, for example, the United States Attorney in Boston hires a disproportionate number of Catholics. Is he discriminating on the basis of religion, or are his choices based on neutral criteria? [FN394] These are difficult factual questions, but because procedures are already in place in other areas of the law to ferret out discrimination, [FN395] courts can be expected to handle such cases without serious conceptual difficulty. Moreover, any theory of the religion clauses [FN396] will be required to provide a similar framework or process. [FN397]

Not only is it constitutional to aid religion where such aid comes as an indirect result of the pursuit of some neutral secular policy, but the Supreme Court has also repeatedly held that in some circumstances not to do so would be non-neutral and therefore unconstitutional. For example, in Widmar v. Vincent, [FN398] the Supreme Court considered a state university's denial of facilities for a student group to hold worship services. The Court held that to exclude religious speech from an otherwise open forum would constitute content-based discrimination, and therefore would be unconstitutional. [FN399] Similarly, in any collection of library books or works of art, religious themes would have to be consciously excluded to avoid representation. As Justice Jackson noted in his concurring opinion in McCollum v. Board of Education, [FN400] "Music without sacred music, architecture minus the cathedral, or painting without the scriptural themes would be eccentric and incomplete, even from a secular point of view." [FN401] Thus, where some neutral secular category includes religion as one of its constituent elements, the principle of neutrality would require inclusion, not exclusion. [FN402]

The law of zoning also illustrates how religion has been taken into account as part of a neutral secular determination. [FN403] Professor Giannella suggested that there is a "secularly relevant religious factor" that should be considered when devising a master zoning plan. [FN404] Many comprehensive plans traditionally have treated churches and synagogues differently from such places as shopping centers or single family dwellings. In fact, this is appropriate because churches and synagogues are different from any other classification used in zoning. Nonetheless, so long as the classification is based on secular criteria (the amount of parking required or the traffic and noise patterns associated with it, in short, the "fit" of the building with neighboring uses) neutrality is preserved by "special" criteria for churches. [FN405]

2. State Action that is Facially Neutral, but Discriminatory

One of Professor Kurland's acknowledged limitations on the neutrality principle is that "actions of the state must be carefully scrutinized to assure that classifications that purport to relate to other matters are not really classifications in terms of religion." [FN406] In many ways, this is simply the mirror image of the issue posed in the previous section, [FN407] where the analogy was drawn to cases of race or sex discrimination. Statutory discrimination is less likely because it is difficult to single out a religious group in terms that are facially neutral. However, some cases will undoubtedly arise. For example, in Davis v. Beason [FN408] the Supreme Court affirmed a statute that required voters to deny association with any religion [FN409] that advocated polygamy. Without naming Mormons, the statute had the effect and the design of discouraging Mormons from voting. [FN410] Or suppose the Hare Krishna sect argued that a municipal statute forbidding the wearing of orange-colored clothing was designed to discriminate against them, and the city replied that its purpose was to make construction workers more identifiable to promote their safety; what should be the outcome under the neutrality rule?

The proposed standard would treat this case as analogous to the hiring discrimination case. The issue would be whether the statute reflected a discriminatory animus against the religious group in question. [FN411] Although such determinations are not easy, the Court has made difficult determinations in the past. [FN412] It would be appropriate for a court to consider such factors as how closely related the state action was to its purported purpose; whether the state action preceded or followed the appearance of the alleged discriminatory animus; [FN413] and what cost might accrue to the state by foregoing the action. [FN414] These considerations resemble the factors currently used by the Court in resolving free exercise cases, but they are only tools for determining the presence or absence of a discriminatory animus. The proposal thus places a high burden upon those who challenge facially neutral laws. Moreover, there is no need to consider the extent of the burden upon the religion or its practice, nor the perceptions of some hypothetical "reasonable observer." [FN415] Since the choice of the trial court would either be to find that the statute is nondiscriminatory, and thereby allow the state action to stand, or to find that it is discriminatory and therefore void, [FN416] there would be no need to determine the religious character, sincerity or social worth of the objector's beliefs. [FN417]

C. Hard Cases: The Permissible Use of Religion as a Basis for Classification

The prior categories of cases all fell, after some reformulation, within the principle that neutral secular criteria should be used to grant benefits or impose burdens. In other words, the first approximation of true neutrality is content-neutral rules. However, Justice Scalia has accurately noted that religion clause jurisprudence is to some extent "unavoidably content-based because the Freedom of Religion clause is content-based." [FN418] Taken to its logical extreme, a fully content-neutral interpretation of the religion clauses would strip them of any independent content, since the press and speech clauses of the first amendment go a long way toward forbidding discrimination based upon the content of the spoken or printed word. [FN419] Recognition of the special characteristics of religion does not necessarily require the kind of jurisprudence, criticized in sections IV and V of this article, that makes the constitutionality of state action contingent upon the content of various religions. Instead, it is possible to base the special treatment of religion (where appropriate) upon the "secularly relevant" [FN420] characteristics of religion, rather than upon the content of the theology itself. This section considers those cases where religion might be an acceptable classification, so that "mechanical answers" to religion clause controversies do not replace true neutrality. These cases are essentially of three types: (1) the special treatment for "church control" cases previously considered in section III; (2) the special exemptions from some burden, such as taxes or military service, otherwise imposed on the population at large; and (3) the state's provision of "space" to religion, on a basis not necessarily available to other forms of speech.

1. Special Treatment to Avoid Entanglement

The "church control" and "religious belief" cases, considered in section III, [FN421] developed special rules to deal with cases involving religious doctrine or belief. The nondiscrimination version of neutrality would preserve this special treatment. The rationale is twofold. First, for the reasons developed by the courts in the church control cases, government abstention preserves the separate autonomy of church and state. When judges attempt to resolve questions of religious doctrine, religious autonomy is inhibited and government authority is weakened. Second, those who join a church do so with an express or implied consent to the manner in which the church operates. It is appropriate for government to enforce a church procedure, no matter how unfair it might appear, because the members are held to have previously consented to that procedure when they joined the church. Thus, ordinary principles of contract law would dictate that one who consents to be bound by a procedure cannot later challenge the procedure as unfair. [FN422] Although the reviewing court must determine whether the group is religious, therefore requiring judicial abstention, it is because of secular criteria such as the doctrine of consent that the abstention is required.

A related principle applies to cases like United States v. Ballard [FN423] where tort or criminal claims are brought against those whose representations or actions are claimed to be false or tortious. A person who joins a church presumably does so in the hope that the doctrine and practice of the church will improve his lot, either temporally or otherwise. Many believers, as Justice Jackson observed, find themselves bitterly disillusioned by "false prophets." [FN424] But a preacher's assertion that the end of the world is at hand should not be subject to civil or criminal penalties in the event that the millennial hour passes without incident. Again, the principle of consent is appropriately invoked. Presumably, those who are advised of the spiritual nature of an actor's enterprise should be on notice of the limitations on the state's ability to enforce promises. Even where earthly benefits are promised as an extension of the spiritual teaching, liability should not follow because religion is a unique beast. Religious "truths" or "promises" are different from a representation that a parcel of land is beachfront property or that the developer will install sewer lines. [FN425] If a preacher promises that faith will bring miracles, and the believer then dies of cancer, does anyone contend that a cause of action will arise for detrimental reliance? Not only is the principle of no-entanglement implicated, but ordinary principles of contract or tort law apply. [FN426]

It may be objected that the special treatment of religion granted for purposes of this rule will simply recapitulate the difficulties demonstrated with respect to the court's current approach to the free exercise cases. [FN427] The significant difference is that the religious nature of the enterprise and thereby the qualification for exemption from ordinary principles of fraud should be based upon the perceptions of the participants. The court need not determine whether the defendant is in truth a religious figure or a charlatan; it must only determine whether he was perceived to be a religious figure by his alleged victims. Thus, Ballard would probably have succeeded in establishing that he was in fact perceived as a religious figure, [FN428] even if the judge and jury saw him as a swindler, and even though Ballard should later confess that he was insincere. [FN429]

As a second qualification, it must be noted that the doctrine of consent for purposes of this rule has the same limitations as it has in other contract or tort cases, namely that it does not extend to practices outside the scope of the consent. A believer may consent to disappointment from the preacher's unprovable and hence unenforceable promise of miracles, but he does not thereby consent to the preacher's embezzlement of his or the church's funds. A believer may consent to the fact that his or her "counseling" with the minister is not to be held to the standard of care of secular counseling, [FN430] but he or she does not thereby consent to sexual abuse. [FN431] Determining the scope of the consent will be a difficult factual matter, but it promises fewer intrusions into sensitive first amendment areas, and at the same time it permits courts to reach just results in the majority of cases. In short, the principle of consent, like the principle of nondiscrimination generally, provides a starting point rather than a mechanical answer to particular cases.

2. Exemptions, as a Matter of Legislative Grace, to Promote Secular Ends

A second type of case for special treatment of religion arises where the state chooses to make an exemption solely for religiously motivated objectors. For example, in enacting a military draft, Congress provided that certain persons were exempt from service upon proof that they possessed religious scruples against military service. Does such a provision comport with the nondiscrimination principle? This article suggests that it does. While it is true that the statute uses religion as a classification in distributing benefits and burdens, this should not end the discussion. However, the justification for this exception must be carefully developed.

An implied recognition of the free exercise claim, [FN432] the usual justification for the exception, is of course unavailable under the nondiscrimination principle. The nondiscrimination principle, unlike the affirmative action approach, does not recognize a duty of government to comply with the dictates of private conscience, so long as the government action is not a form of content-based discrimination. [FN433]

However, a different question arises where government chooses to exempt persons on the basis of religious belief. As in the area of choosing a religious painting or a religious book, the state's motivation may be critical. One immediate suspicion is that the state's purpose is to discriminate on the basis of religion. [FN434] If Congress levied a $200 tax on every person, but exempted Episcopalians, one would be entitled to worry that Episcopalians in Congress had used the device of exemption to place a discriminatory tax on non- Episcopalians, thus violating the principle of neutrality. But it is obvious that Congress' purpose in exempting religious pacifists was not to confer a benefit upon them; on the contrary, it was to raise an effective fighting force. [FN435] Congress has known from the time of the Continental Congress that there are some individuals who will refuse to fight. Thus, Congress made the tactical decision that throwing religious pacifists in jail would sap the war effort to a greater extent than giving them an exemption. [FN436] The question is whether this tactical decision is constitutionally foreclosed by the principle of neutrality. Justice Harlan's concurrence in Welsh v. United States, [FN437] argues that "having chosen to exempt, [Congress] cannot draw the line between theistic or nontheistic religious beliefs on the one hand and secular beliefs on the other." [FN438]

If one were to attempt a defense of the exemption on the basis of the superior value to society of religious as opposed to secular beliefs, Justice Harlan's dictum would be dispositive. It would indeed violate the principle of nondiscrimination. Yet, it seems clear that Congress made a distinction based upon the secular effects of the beliefs, not their theological merit. Just as Professor Giannella suggested that a "secularly relevant religious factor" could be used in zoning decisions, [FN439] Congress was simply recognizing the secular impact of religious beliefs, and protecting the nation's interests accordingly. Otherwise, Congress would have been forced to choose between two equally unattractive alternatives: either end the exemption for all, and incur costs for increased prison facilities, loss of productive capacity, and ill will toward the government; or open the exemption to anyone "conscientiously opposed" to war, which would lead to even less desirable consequences. [FN440] Consider Welsh himself, who based his objection on the ground that "in our failure to recognize the political, social, and economic realities of the world, we, as a nation, fail our responsibility as a nation." [FN441] The Armed Services Committee might appreciate the difficulty of explaining to the soldier in the foxhole that Welsh was not beside him because of Welsh's more acute perception of the political, social, and economic realities of the world. If forced to choose between exemptions for all and exemptions for religious objectors only, Congress might elect to abolish the exemption altogether. [FN442] Secular reasons for refusing government orders stand on a different footing from religious reasons. [FN443]

The case of draft exemptions may be sui generis simply because of the unique nature of the need for military service. Since the Constitution is not "a suicide pact," [FN444] and since the draft itself is a unique invasion of personal liberties, perhaps any rule will require allowances and exceptions. [FN445] But there are other examples. When Prohibition was adopted in this country, the importation and use of sacramental wine was exempted from the otherwise absolute prohibition of the use of alcohol. [FN446] If the legislature could not have used such exemptions, it would be confronted with the unacceptable alternatives of either facing massive opposition to its efforts to control alcohol consumption, or abandoning those efforts altogether. Limiting exemptions to those whose religious beliefs require them to be exempted would seem to further the state's secular purposes. Also, suppose a state required vaccinations against certain diseases. It might take into account the fact that some religious groups hold such vaccinations to be sinful. The legislature might decide that the public health interest superseded any private scruples, thus requiring all individuals to be vaccinated. On the other hand, the legislature might conclude that the program's success would be greater if a confrontation with the religious minority groups could be avoided. [FN447] As in the draft case, the legislature might find that the secular effect of religious convictions--their failure to deter religious objectors, and their tendency to create martyrs--may require a treatment different from that accorded to nonreligious beliefs (for example, doubts about the efficacy or advisability of inoculation). [FN448]

A slightly different problem is posed by statutes designed to prevent religious discrimination. For example, in TWA v. Hardison, [FN449] the Court considered the constitutionality of an administrative regulation requiring employers "to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodation can be made without undue hardship on the conduct of the employer's business." [FN450] The court held that the prevention of religious discrimination is distinguishable from requiring discrimination in favor of religious claimants. For example, while it is unlawful for a school board to deny paid leave for religious purposes when it provides paid leave for secular purposes, [FN451] it is unconstitutional to require the state to single out religious reasons for preferential treatment. [FN452] Such regulations do not in fact grant special treatment for religious objectors, but instead require employers to treat their employees equally. Such statutes could be seen as imposing upon private employers an obligation already imposed upon state employers: not to indulge any discriminatory animus against religious beliefs.

One of the advantages of permitting the state to offer exemptions as a matter of legislative grace rather than requiring them as a free exercise right is that it permits the legislature more flexibility to discover what kinds of exemptions can be practically permitted. Many of the determinations as to whether an exemption can be granted, and if so on what terms, must be a function of careful prudential judgments. As Dean Calabresi has noted, a constitutional ruling cannot be adjusted by legislative or administrative bodies when changed circumstances would otherwise suggest amendments. [FN453]

Lest the exemption principle appear to swallow up the general neutrality rule, its limitations should be carefully enumerated. The state should be permitted to grant exemptions for reasons of religious belief only where: (1) its motive in doing so is to advance a legitimate secular interest rather than the interests of the religious group affected; [FN454] (2) there is a significant cost imposed upon the state if the legislation were implemented without such an exemption; and (3) the exemption is scrupulously neutral as between religions.

As with the case of exemptions to prevent entanglement, the definition of religion may still be required for purposes of administering exemptions from state laws. The question, however, is a practical one of whether the legislature can administer the exemption without discrimination [FN455] or excessive entanglement. Fortunately, under this approach the state has the option of retaining the exemption if it proves workable or abandoning it if it does not. By contrast, creating a constitutional right to exemption allows much less flexibility to adapt to changing circumstances. [FN456]

A unique category for exemptions arises in the area of taxation. The first case to challenge tax exemptions granted to religious organizations was Walz v. Tax Commission. [FN457] However, the statute attacked in Walz did not limit its exemption to religious institutions, but rather extended the exemption to charitable institutions irrespective of religious ties. [FN458] In Texas Monthly, Inc. v. Bullock [FN459] the Court considered a challenge to a Texas statute that exempted only religious periodi