Religion and the Constitution - Vol. 2

By Kent Greenawalt | Go to book overview

CHAPTER 3
The Development of Doctrine
and Its Significance

This chapter provides a summary account of the Supreme Court’s doctrinal development of the Establishment Clause. With chapter 1’s treatment of Establishment Clause values and their relation to equality, it sets the stage for the analytical discussion of particular issues in the chapters that follow. Along the way, I identify some major themes and tensions in approaches to the Establishment Clause, comment on a strong objection to the Supreme Court’s use of the metaphor of church and state, and sketch the differences between fundamental principles, tests of constitutionality, standards of judgment, and relevant factors.


THE ESTABLISHMENT CLAUSE UP TO
EVERSON V. BOARD OF EDUCATION

Not until 1947, in Everson v. Board of Education, did the Supreme Court first apply the strictures of the Establishment Clause to states and localities.1 The Court had previously rendered three rulings permissive of aid to religious organizations. Two of these addressed and rejected challenges to such aid as an impermissible establishment; one sustained aid without reference to the Establishment Clause.

In 1899 the Court upheld an agreement by the District of Columbia to build a hospital that was to be administered by a Roman Catholic order.2 It relied partly on the absence of a reference to religion in the hospital’s certificate of incorporation and said the hospital must be managed in accord with its defined secular purposes. Nine years later, the Court approved the use of trust funds held by the federal government on behalf of Indians to pay the Bureau of Catholic Indian Missions for providing education.3 Finally, in

1 330 U.S. 1 (1947). It had indicated it would do so seven years earlier in the free exercise decision of Cantwell v. Connecticut. 310 U.S. 296 (1940).

2Bradfield v. Roberts, 173 U.S. 296.

3Quick Bear v. Leupp, 210 U.S. 50 (1908).

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