Why the Supreme Court Changed Its Mind About Government Aid to Religious Institutions: It's a Lot More than Just Republican Appointments

I. INTRODUCTION Over the past two decades, the Supreme Court's approach to government funding of secular services provided by religious institutions has shifted from tight restrictions on aid to general approval of nondiscriminatory aid delivered through mechanisms of private choice. What may be less apparent is that these changes are rooted in tensions that go back to the very beginnings of modern Establishment Clause doctrine. The Court's general move to the right is only part of the explanation for the change, and in itself not a sufficient explanation. This brief Comment argues that the more fundamental causes of this change are a realignment of religious conflict, the end of desegregation and massive resistance, and the emergence of a broad political coalition supporting aid to religious schools, all of which refrained the legal issues and made it easier for Justices to see the other side of the original doctrinal tension. Part II outlines the two conflicting principles underlying the Court's jurisprudence on aid to religious institutions: no-aid and nondiscrimination. Part III explains why the no-aid principle generally dominated during the Lemon era, from 1971 to 1985.1 Part IV explains what changed and why the nondiscrimination principle has dominated since 1985. Part V offers a brief conclusion. II. THE CONFLICTING PRINCIPLES Ever since 1947, the Court has struggled to reconcile two competing intuitions, each announced in Everson v. Board of Education.2 On one hand was the no-aid principle: "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."3 On the other was the nondiscrimination principle, set forth in the very next paragraph: that the state "cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation."4 The no-aid principle derived from eighteenth-century debates over earmarked taxes levied exclusively for the funding of churches.5 In an era with few public welfare benefits, these taxes funded purely religious programs and funded those programs preferentially. As applied to that dispute, the two principles did not conflict, and the noaid principle served religious liberty.6 No-aid protected citizens from being forced to contribute to churches; it protected the churches from financial dependence on the government; it prevented discrimination in favor of religion; and it did not discriminate against religion. The modern cases are very different. From Everson forward, the cases have involved equal government funding of religious and secular alternatives. And in all these modern cases, government money funded secular services in a religious environment, not purely religious programs. In that context, the Court had to choose between its two principles: either government money would flow to religious institutions, or students in religious schools and patients in religious hospitals would forfeit instruction or services that the state would have funded if the individuals had chosen a secular school or hospital instead.7 The majority in Everson thought the two theories could be reconciled by applying each in its proper sphere.8 Some programs provided aid; others provided general welfare benefits. The Court appeared to cling to this belief for thirty years or more after Everson. But this was a doomed strategy because advocates could logically expand each theory from its point of origin until it covered the universe of cases. Tax-supported fire protection for private schools is a form of aid; education is a social welfare benefit. The effort to confine the two theories to separate spheres could only postpone the point at which the Court would be forced to choose between them. …