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
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1 Kathleen A. Brady, Th e Push to Private Religious Expression: Are We Missing Something? , 70 Fordham L. Rev. 1147 (2002). Available at:
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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)