The Push to Private Religious Expression: Are We Missing Something?

Fordham Law Review, Dec 2002

By Kathleen A. Brady, Published on 01/01/02

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The Push to Private Religious Expression: Are We Missing Something?

The Pu sh to Private Religious Expression: Are We Missing Something? Kathleen A. Brady 0 1 0 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact 1 Kathleen A. Brady, Th e Push to Private Religious Expression: Are We Missing Something? , 70 Fordham L. Rev. 1147 (2002). Available at: - Article 3 THE PUSH TO PRIVATE RELIGIOUS EXPRESSION: ARE WE MISSING SOMETHING? The last few years have been a busy time for the Supreme Court when it comes to the Establishment Clause of the First Amendment. In 2000, the Supreme Court decided a ground-breaking case relating to government funding of religious institutions,' and in each of the last two years, the Court has also decided a case relating to religious expression.' One of the most striking things to note about these cases is how different the trends have been between the Court's jurisprudence regarding religious expression and the Court's funding jurisprudence. When it comes to the funding of religious organizations, the Court's jurisprudence is undergoing profound change. The Court's 2000 decision in Mitchell v. Helms3 extended a trend relaxing the restrictions on government funding of religiouslyaffiliated primary and secondary schools, but the failure of the Court to produce a majority opinion left the outer bounds of permissible funding far from clear.' As the Court addresses the constitutionality *Assistant Professor of Law, University of Richmond School of Law. J.D., 1994, Yale Law School; M.A.R., 1991, Yale Divinity School; B.A., 1989, Yale College. I gratefully acknowledge the support of the law firm Hunton & Williams, which provided a research grant to make this project possible. My thanks to John Douglass, David Frisch, Azizah al-Hibri, Emmeline Paulette Reeves, Charles Reid, Mark Strasser, Jonathan Stubbs, John Witte and Gail Zwirner. For their excellent work, I also thank my research assistants Caroline Davis Bragg and Molly Elizabeth Young. 1. See Mitchell v. Helms, 530 U.S. 793 (2000). 2. In 2000, the Court decided Santa Fe Independent School Districtv. Doe, 530 U.S. 290 (2000), and in 2001, the Court decided Good News Club v. Milford Central School, 533 U.S. 98 (2001). 3. 530 U.S. 793 (2000). 4. Justice Thomas authored the plurality opinion in Mitchell v. Helms, and he was joined by Justices Rehnquist, Scalia and Kennedy. The plurality view articulated new principles for government funding of religious organizations which would significantly broaden the scope of permissible direct aid under the Establishment Clause. Justice O'Connor's concurrence, joined by Justice Breyer, also supported liberalizing the Court's approach to direct funding of religious organizations, but she was unwilling to go as far as the plurality. Justice Souter, joined by Justices Stevens and Ginsburg, favored the Court's traditional restrictive principles. of school vouchers this term5 and questions about funds for faithbased social services programs loom on the horizon, the future of the Court's case law in the funding area promises additional new developments, and the outcomes of unresolved issues are hard to predict. In the funding area, the court is, in short, in the middle of a potentially far-reaching reconstitution of its basic legal principles. By contrast, when it comes to the Court's decisions regarding religious expression linked to the state, the Court's case law over the past decade has been fairly stable, and the Court's recent decisions have helped to solidify familiar terrain. At the heart of the Court's recent jurisprudence has been a basic dichotomy between religious expression endorsed by the state and private religious expression. In its 2000 decision in Santa Fe Independent School District v. Doe,6 the Court repeated a statement that has become a refrain in recent cases. Quoting from the Court's 1990 decision in Board of Education v. Mergens7, the Court affirmed that "'there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect."'" The dissent did not disagree.9 Where the majority and dissent differed was over which category the prayers in question belonged to. This basic dichotomy between religious expression endorsed by the government, which is prohibited, and private religious expression, which is protected, stands in stark contrast to an earlier "accommodationist" approach to religious speech defended by a number of justices in the 1980s and early 1990s. During this period, battles raged over whether the state could permissibly engage in expression endorsing religion. The Court's justices divided into three factions. The separationists viewed relig (...truncated)


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Kathleen A. Brady. The Push to Private Religious Expression: Are We Missing Something?, Fordham Law Review, 2002, Volume 70, Issue 4,