Moving the Baseline: The Contradiction at the Core of Constitutional Discourse over State Aid to Parochial Schools

Article excerpt

INTRODUCTION

At the heart of constitutional debate over government aid for parochial schools lies the Establishment Clause of the First Amendment--"Congress shall make no law respecting an establishment of religion." And at the heart of Establishment Clause jurisprudence lies the so-called "primary effects" test, articulated in 1971's Lemon v. Kurtzman: If the aid in question has a primary effect that either advances or inhibits religion, then it violates the Constitution.(1)

It is true that the much-maligned but still influential Lemon case actually requires courts to execute three tests to determine whether a challenged program of aid to parochial schools runs afoul of the Establishment Clause, whether it be state-subsidized textbooks or state-financed field trips, state-supported counseling services or state-underwritten remedial instruction, vouchers or tuition-tax credits. Specifically, Lemon directs judges to ask not only whether the aid program in question has the primary effect of advancing or inhibiting religion, but also whether it reflects a clearly secular purpose and whether it avoids excessive entanglement with religion.(2) But as one commentator has noted, "the primary effect standard has emerged as the essence of establishment clause analysis."(3) As far as the entanglement test is concerned, as Justice Thomas put it in the most recent Supreme Court parochial-school aid case, Mitchell v. Helms, "[w]e acknowledged that our cases discussing excessive entanglement [apply] many of the same considerations as ... our cases discussing primary effect, and we therefore [have] recast Lemon's entanglement inquiry as simply one criterion relevant to determining a statute's effect."(4) As for the "secular purpose" test, in Mitchell--as in all post-Lemon cases--those challenging the aid did not raise it as an issue; hence, as Justice Thomas said, "we will consider only [the aid's] effect."(5)

Indeed, having essentially refined the Lemon test down to one of its three prongs (the primary-effects test) the Supreme Court has further refined that prong itself. First, as one state supreme court noted as early as 1974 while summing up the evolution of recent U.S. Supreme Court doctrine: "In applying the `primary effects test,' we must be guided by the realization ... that this is no longer a primary effects test, but an `any effects test.'"(6) As long as one of the aid's effects (even if not its most significant effect) is to advance or inhibit religion, then it risks violating the Establishment Clause. Second, the Court has, to use Douglas Laycock's term, "disaggregated" the test, deciding the question of whether a particular form of state aid "advances" religion in a manner separate and apart from the approach it takes to the issue of whether it "inhibits" religion.(7) Laycock offers a compelling criticism of this kind of disaggregation, but my purpose here is to accept it as a given, and then look far more closely at how courts determine whether, in fact, a particular form of state aid to parochial schools "advances" (as opposed to inhibits) religion. It is this question that is now the sine qua non of Establishment Clause jurisprudence.

More specifically, in this Article I critically examine the rhetorical structure of the arguments typically wielded by either side in cases involving state-supplied aid to parochial schools--from state-supported bus transportation to free textbooks, from vouchers to tuition tax credits, from state-financed test administration to state-sponsored supplemental instruction. Critics of the particular aid program at issue of course claim that such aid does have the effect of advancing religion, and defenders deny any such thing. In undertaking this analysis, I bring to light a contradiction that, in mirror-image form, lies at the heart of each camp's argumentation. I say "mirror-image," because in debating the first of what I shall identify as the effects test's two main issues, the pro-aid side embraces one particular set of assumptions and the anti-aid side a competing set. …