May 14, 2009

Shifting Boundaries: The Establishment Clause and Government Funding of Religious Schools and Other Faith-Based Organizations

In an ongoing series of occasional reports, “Religion and the Courts: The Pillars of Church-State Law,” the Pew Forum on Religion & Public Life explores the complex, fluid relationship between government and religion. Among the issues to be examined are religion in public schools, displays of religious symbols on public property, conflicts concerning the free exercise of religion, and government funding of faith-based organizations.

The debate over government funding of religious groups and institutions raises some of the thorniest issues in the ongoing discussion about the appropriate relationship between church and state. Most legal scholars agree that the Establishment Clause in the First Amendment to the U.S. Constitution limits at least some government funding of religion, but they disagree sharply on exactly what is permissible.

The Pillars of Church-State Law

The Legal Status of Religious Organizations in Civil Lawsuits
March 2011
Are legal disputes involving churches and other religious institutions constitutionally different from those involving their secular counterparts, and if so, how?

Government Funding of Faith-Based Organizations
May 2009
The debate over the meaning of the Establishment Clause.

Free Exercise and the Legislative and Executive Branches
October 2008
A look at state and federal statutes that protect religious freedom.

Free Exercise and the Courts
October 2007
The courts have grappled with the meaning of the Free Exercise Clause.

Religious Displays and the Courts
June 2007
Government displays of religious symbols have sparked fierce battles.

Religion in the Public Schools
May 2007
Americans continue to fight over the place of religion in public schools.

Participants in the debate fall roughly into two camps: On the one side are “separationists,” who broadly interpret the Establishment Clause – which prohibits all laws “respecting an establishment of religion” – to require that government refrain from aiding or promoting religion or religious institutions. Strict separationists therefore claim that most, or even all, government funding of religion is unconstitutional. On the other side are those who interpret the Establishment Clause much more narrowly, contending that government funding of religion is constitutional as long as the funding is neutral, meaning it does not favor religion over non-religion or favor a particular faith over other faiths.

Although the U.S. Supreme Court has embraced each of these viewpoints at different times in its history, many of the court’s decisions in this area do not wholly adopt either approach. Instead, much of the constitutional law on the subject has rested on the broad principle that government funding of religion is permissible as long as the funding does not make the government responsible for advancing a particular set of religious beliefs.

Before the landmark 1947 decision Everson v. Board of Education, only two Establishment Clause disputes about government funding of religion reached the Supreme Court. In both of these earlier cases, the court refrained from providing broad pronouncements on the clause’s meaning. In Everson, however, the high court ruled that the Establishment Clause applied not only to the federal government but also to state and local governments. The court also declared that the Establishment Clause erected a “wall of separation between church and state,” and this metaphor shaped the court’s interpretation of the Establishment Clause for the next 50 years. During this time, however, the high court also found many exceptions to this separationist view. Furthermore, between 1997 and 2002, the court set forth doctrines in three key decisions that made these exceptions the norm, thus signaling a move away from separationism and toward an approach that considers government funding of religion constitutional as long as the funding does not favor religion over non-religion or favor one particular faith.

As a result of this shift, some scholars and judges have criticized this area of the law for what they argue are its inconsistencies. But while the case law on government funding of religion has shifted away from separationism in recent years, courts have consistently maintained that the government may not support religious instruction.