To see what has happened to the First Amendment's Establishment Clause is to know how all the king's horsemen felt when they came upon Humpty-Dumpty. But now the Supreme Court has an opportunity to bring some order to the Establishment Clause confusion.
A Minnesota statute provides tax deductions for parents of students in all schools, public and private, for certain tuition, textbook and transportation costs. Because it involves parents of students in church-related schools, it is being challenged as a violation of the Constitution's proscription of "an establishment of religion." In support of the statute, the U.S. Catholic Conference has filed a "friend of the court" brief documenting the intentions of the framers of the Establishment Clause.
The brief argues that Minnesota's statute is constitutionally benign tax legislation with a secular purpose (tax relief). The marginal benefit to religion does not constitute unconstitutional preferment of religion. But in the Everson decision in 1947, the court embraced an analysis of the Establishment Clause that suggested that any aid to religion constitutes "establishment."
The Everson opinion was less important for its conclusion (it actually upheld a New Jersey practice of reimbursing all parents for certain school expenses) than for the historical gloss by the author, Hugo Black. In explicating the Establishment Clause, Black made no reference to congressional debates by the framers of the clause. Instead, he relied on a Jefferson metaphor and a Madison broadside. Black asserted that the Establishment Clause embodied the sentiments of Jefferson's letter endorsing "a wall of separation between Church and State" and Madison's vehement denunciation of a law imposing a tax to support certain clergy.
Black's analysis colored subsequent church-state rulings and the climate in which the "Three Part Test" has been applied. According to that test, a law does not violate the Establishment Clause if it has a secular purpose, and its primary effect neither advances nor inhibits religion, and it does not foster excessive entanglement of government with religion.
This test requires judgments that cannot be made with fidelity to the framers' intentions unless courts understand this: the framers rejected language that would have mandated hermetic separation of church and state. Congress rejected language saying that "Congress shall make no law touching religion." It did so because it considered action benefiting religion generally--as distinct from preferment of particular sects--unobjectionable.
The Establishment Clause is construed perversely when it is used to block government action that poses no threat to religious freedom, and enhances a secular public purpose (such as tax relief, or education), but which has the ancillary effect of giving marginal aid to church-related activities.
Minnesota's tax deduction, like the tuition tax credits that the Reagan administration favors, involves no transfer of public funds, merely a state decision to forgo a claim on certain income of its citizens. It involves no relationship between government and churches, only between the taxing authority and taxpayers. It offends only persons who believe that any benefit that accrues to religion as a result of government action invalidates that action. They believe this because of a metaphor (Jefferson's "wall of separation") that is not constitutionally germane. That metaphor was penned 13 years after the Establishment Clause was debated. During the debate, Jefferson was ambassador to Paris.
Judicial scrutiny of state action touching religion should not stop, with a negative judgment, at a mere finding that religion is benefited. Judicial rejection should require a showing that the state action advances religion in a way incompatible with constitutional values. That must involve preferment that goes beyond benevolent neutrality toward religion generally.
American public life has few processes as subtle as that of encouraging the Supreme Court to rectify an excess. It took 58 years for Brown v. Board of Education (1954) to reverse the ruling in Plessy v. Ferguson (1896) that "separate but equal" segregated facilities are constitutional. Now 36 years of scholarship and experience have demonstrated the intellectual and practical difficulties with the Establishment Clause analysis affirmed in the Everson case.
Supporters of a correct construction are resisting a tide that seems as strong as fate. But the High Court is an arena of mind in our public life. The Minnesota case can demonstrate the truth of Emerson's axiom that intellect annuls fate.