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1.6.1 Overview. Under the establishment clause of the First Amendment, public institutions must maintain a neutral stance regarding religious beliefs and activities; they must, in other words, maintain religious neutrality. Public institutions cannot favor or support one religion over another, and they cannot favor or support religion over nonreligion. Thus, for instance, public schools have been prohibited from using an official nondenominational prayer (Engel v. Vitale, 370 U.S. 421 (1962)) and from prescribing the reading of verses from the Bible at the opening of each school day (School District of Abington Township v. Schempp, 374 U.S. 203 (1963)).

The First Amendment contains two “religion” clauses. The first prohibits government from “establishing” religion; the second protects individuals' “free exercise” of religion from governmental interference. Although the two clauses have a common objective of ensuring governmental “neutrality,” they pursue it in different ways. As the U.S. Supreme Court explained in School District of Abington Township v. Schempp:

The wholesome “neutrality” of which this Court's cases speak thus stems from a recognition of the teaching of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the state or federal government would be placed behind the tenets of one or of all orthodoxies. This the establishment clause prohibits. And a further reason for neutrality is found in the free exercise clause, which recognizes the value of religious training, teaching, and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the free exercise clause guarantees… The distinction between the two clauses is apparent—a violation of the free exercise clause is predicated on coercion, whereas the establishment clause violation need not be so attended [374 U.S. at 222–23].

Neutrality, however, does not necessarily require a public institution to prohibit all religious activity on its campus or at off-campus events it sponsors. In some circumstances the institution may have discretion to permit noncoercive religious activities (see Lee v. Weisman, 505 U.S. 577 (1992) [finding indirect coercion in context of religious invocation at high school graduation]). Moreover, if a rigidly observed policy of neutrality would discriminate against campus organizations with religious purposes or impinge on an individual's right to freedom of speech or free exercise of religion, the institution may be required to allow some religion on campus.

In a case that has now become a landmark decision, Widmar v. Vincent, 454 U.S. 263 (1981) (see Section 10.1.5 of this book), the U.S. Supreme Court determined that student religious activities on public campuses are protected by the First Amendment's free speech clause. The Court indicated a preference for using this clause, rather than the free exercise of religion clause, whenever the institution has created a public forum (see Section 9.4.2) generally open for student use. The Court also concluded that the First Amendment's establishment clause would not be violated by an “open-forum” or “equal-access” policy permitting student use of campus facilities for both nonreligious and religious purposes.

1.6.2 Religious autonomy rights of religious institutions and their personnel. A private institution's position under the establishment and free exercise clauses differs markedly from that of a public institution. Private institutions have no obligation of neutrality under these clauses. Moreover, these clauses affirmatively protect the religious beliefs and practices of private religious institutions from government interference. For example, establishment and free exercise considerations may restrict the judiciary's capacity to entertain lawsuits against religious institutions. Such litigation may involve the court in the interpretation of religious doctrine or in the process of church governance, thus creating a danger that the court—an arm of government—would entangle itself in religious affairs in violation of the establishment clause.

Such litigation may also invite the court to enforce discovery requests (such as subpoenas) or award injunctive relief that would interfere with the religious practices of the institution or its sponsoring body, thus creating dangers that the court's orders would violate the institution's rights under the free exercise clause. Sometimes such litigation may present both types of federal constitutional problems or, alternatively, may present parallel problems under the state constitution. When the judicial involvement requested by the plaintiff(s) would cause the court to intrude upon establishment or free exercise values, the court must decline to enforce certain discovery requests, or must modify the terms of any remedy or relief it orders, or must decline to exercise any jurisdiction over the dispute, thus protecting the institution against governmental incursions into religious beliefs and practices. These issues are addressed with respect to suits by faculty members in Sections 4.7 and 6.4 of this book; for a parallel example regarding a suit by a student, see McKelvey v. Pierce, discussed in Section 1.5.3.

A private institution's constitutional protection under the establishment and free exercise clauses is by no means absolute. Its limits are illustrated by Bob Jones University v. United States, 461 U.S. 574 (1983)). Because the university maintained racially restrictive policies on dating and marriage, the Internal Revenue Service had denied it tax-exempt status under federal tax laws. The university argued that its racial practices were religiously based and that the denial abridged its right to free exercise of religion. The U.S. Supreme Court, rejecting this argument, emphasized that the federal government has a “compelling” interest in “eradicating racial discrimination in education” and that interest “substantially outweighs whatever burden denial of tax benefits places on [the university's] exercise of…religious beliefs” (461 U.S. at 575).

Although the institution did not prevail in Bob Jones, the “compelling interest” test that the Court used to evaluate free exercise claims does provide substantial protection for religiously affiliated institutions. The Court severely restricted the use of this strict scrutiny test, however, in Employment Division v. Smith, 494 U.S. 872 (1990), and thus severely limited the protection against governmental burdens on religious practice that is available under the free exercise clause. Congress sought to legislatively overrule Employment Division v. Smith and restore broad use of the compelling interest test in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb et seq., but the U.S. Supreme Court invalidated this legislation.

Congress had passed RFRA pursuant to its power under section 5 of the Fourteenth Amendment to enforce that amendment and the Bill of Rights against the states and their political subdivisions. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court held that RFRA is beyond the scope of Congress's section 5 enforcement power. Although the Court addressed only RFRA's validity as it applies to the states, the statute by its express terms also applies to the federal government (§§ 2000bb-2(1), 2000bb-3(a)). As to these applications, the Court has apparently conceded that RFRA remains constitutional (Gonzales v. O Centro Espirita Beneficente Unias Do Vegetal, 546 U.S. 418 (2006); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)).

The invalidation of RFRA's application to the states has serious consequences for the free exercise rights of both religious institutions and the members of their academic communities. The earlier case of Employment Division v. Smith (above) is reinstituted as the controlling authority on the right to free exercise of religion. Whereas RFRA provided protection against generally applicable, religiously neutral laws that substantially burden religious practice, Smith provides no such protection. Thus, religiously affiliated institutions no longer have federal religious freedom rights that guard them from general and neutral regulations of state and local governments that interfere with the institutions' religious mission. Moreover, individual students, faculty, and staff—whether at religious institutions, private secular institutions, or public institutions—no longer have federal religious freedom rights to guard them from general and neutral regulations of state and local governments that interfere with these individuals' personal religious practices. And individuals at public institutions no longer have federal religious freedom rights to guard them from general and neutral institutional regulations that interfere with personal religious practices.

In Illinois Bible Colleges Association v. Anderson, 870 F.3d 631 (7th Cir. 2017), a federal appellate court considered the applicability to religious institutions of a law requiring all degree-granting postsecondary institutions in Illinois to receive a certificate of approval and to be subject to state review over items that included facilities and finances. The plaintiffs included free exercise and establishment clause claims among their challenges to the law. The court found that no exception to the standards announced in Employment Division v. Smith was present to negate the law's coverage of religious institutions. The court rejected the free exercise claim, stating that the law was generally applicable, did not target religious institutions, and served a rational governmental purpose of “protecting legitimate institutions of higher education by safeguarding the value of their degrees” (870 F.3d at 639). The court also interpreted the law as not raising excessive entanglement issues, as the statute dealt with general standards and practices associated with the awarding of long-established undergraduate and graduate degrees in higher education.

There are at least three avenues that an individual religious adherent or a religiously affiliated institution might now pursue to reclaim some of the protection taken away first by Smith and then by Boerne. The first avenue is to seek maximum advantage from two important post-Smith cases—Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) and Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C, 565 U.S. 171 (2012)—that limit the application of Smith. Under Lukumi Babalu Aye, challengers may look beyond the face of a regulation to discern its “object” from the background and context of its passage and enforcement. If this investigation reveals an object of “animosity” to religion or a particular religious practice, then the court will not view the regulation as religiously neutral and will, instead, subject the regulation to a strict “compelling interest” test. (For an example of a case addressing a student's First Amendment free exercise claim and utilizing Lukumi Babalu Aye, see Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004), discussed in Section 7.1.4.)

In Hosanna-Tabor, the U.S. Supreme Court recognized a “ministerial exception” grounded in the Religion Clauses of the First Amendment that barred employment discrimination claims by a teacher at a church-affiliated school. The Court concluded that the special religious training and emphasis of the appointment qualified the teacher as occupying a position to which the ministerial exception applied. The Court distinguished Smith by describing it as a case involving “government regulation of only outward physical acts” while Hosanna-Tabor dealt with “government interference with an internal church decision that affects the faith and mission of the church itself” (Hosanna-Tabor, 565 U.S. at 190).

The second avenue is to seek protection under some other clause of the federal Constitution. The best bet is probably to look to the free speech and press clauses of the First Amendment, which cover religious activity that is expressive (communicative). The U.S. Supreme Court's decisions in Widmar v. Vincent (see Section 10.1.5) and Rosenberger v. Rectors and Visitors of the University of Virginia (see Section 10.1.5) provide good examples of protecting religious activity under these clauses. Another possibility is to rely on the due process clauses of the Fifth and Fourteenth Amendments, which protect certain privacy interests regarding personal, intimate matters. The Smith case itself includes a discussion of this due process privacy protection for religious activity (494 U.S. at 881–82).

Yet another possibility is to invoke the freedom of association that is implicit in the First Amendment and that the courts usually call the “freedom of expressive association” to distinguish it from a “freedom of intimate association” protected by the Fifth and Fourteenth Amendment due process clauses (see Roberts v. United States Jaycees, 468 U.S. 609, 617–18, 622–23 (1984)). The leading case is Boy Scouts of America v. Dale, 530 U.S. 640 (2000), in which the Court, by a 5-4 vote, upheld the Boy Scouts' action revoking the membership of a homosexual scoutmaster. In its reasoning, the Court indicated that the “freedom of expressive association” protects private organizations from government action that “affects in a significant way the [organization's] ability to advocate public or private viewpoints” (530 U.S. at 648). The application of the principles of associational rights has arisen in higher education in the context of institutional nondiscrimination policies applied to acceptable membership or leadership rules for officially recognized student organizations. In Christian Legal Society v. Martinez, 561 U.S. 661 (2010) (see Section 10.1.4), students argued unsuccessfully that they should be allowed to set criteria for membership and leadership positions based on acceptance of religious beliefs of the student organization under the principles of Boy Scouts of American v. Dale.

The third avenue is to look beyond the U.S. Constitution for some other source of law (see Section 1.4 of this book) that protects religious freedom. Some state constitutions, for instance, may have protections that are stronger than what is now provided by the federal free exercise clause (see Section 1.6.3 below). Similarly, federal and state statutes will sometimes protect religious freedom. The federal Title VII statute on employment discrimination, for example, protects religious institutions from federal government intrusions into some religiously based employment policies (see Section 4.7) and protects employees from intrusions by employers into some religious practices. And some states have their own RFRA-type statutes that protect religious exercise (see, e.g., Fla. Stat. Ann. § 761.01). As of 2019, 21 states had passed laws similar to the RFRA (http://www.ncsl.org/research/civil-and-criminal-justice/state-rfra-statutes.aspx).

1.6.3 Government support for religious institutions and their students and faculty members. This section focuses on various situations in which a government agency either (1) provides financial aid to religious colleges and universities, or their students or faculty members; or (2) refuses to do so. The first type of situation may implicate the establishment clause of the First Amendment, and the second type of situation may implicate the free exercise clause of the First Amendment. Sometimes the situation may implicate both clauses. The U.S. Supreme Court has often asserted that courts should interpret these clauses so that they work together to create a condition of “religious neutrality” (see Section 1.6.1 above). In addition, some state constitutions have their own establishment clauses that are more restrictive than the federal clause, and these clauses may sometimes be implicated as well.

Two 1971 cases decided by the Supreme Court provide the foundation for the modern law on government support for church-related schools. Lemon v. Kurtzman, 403 U.S. 602 (1971), invalidated two state programs providing aid for church-related elementary and secondary schools. Tilton v. Richardson, 403 U.S. 672 (1971), held constitutional a federal aid program providing construction grants to higher education institutions, including those that are church-related. In deciding the cases, the Court developed a three-pronged test for determining when a government support program passes muster under the establishment clause:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion…; finally, the statute must not foster “an excessive government entanglement with religion” [403 U.S. at 612–13, quoting Walz v. Tax Commission, 397 U.S. 664, 674 (1970)].

All three prongs have proved to be very difficult to apply in particular cases.

In Agostini v. Felton, 521 U.S. 203 (1997), the U.S. Supreme Court refined the three-prong Lemon test, specifically affirming that the first prong (purpose) has become a significant part of the test and determining that the second prong (effect) and third prong (entanglement) have, in essence, become combined into a single broad inquiry into effect. (See 521 U.S. at 222, 232–33.) And in Mitchell v. Helms, 530 U.S. 793 (2000), four Justices in a plurality opinion and two Justices in a concurring opinion criticized a “pervasively sectarian” test that had been developed in Hunt v. McNair, 413 U.S. 734 (1973), as part of the effect prong of Lemon. These Justices also gave much stronger emphasis to the neutrality principle that is a foundation of establishment clause analysis.

Four U.S. Supreme Court cases have applied the complex Lemon test to religious postsecondary institutions. In each case the aid program passed the test. In Tilton v. Richardson (above), the Court approved the federal construction grant program, and the grants to the particular colleges involved in that case, by a narrow 5-4 vote. In Hunt v. McNair (above), the Court, by a 6-3 vote, sustained the issuance of revenue bonds on behalf of a religious college, under a South Carolina program designed to help private nonprofit colleges finance construction projects. Applying the “primary effect” test as explained above, the Court determined that the college receiving the bond proceeds was not “pervasively sectarian” (413 U.S. at 743) and would not use the financed facilities for specifically religious activities. In Roemer v. Board of Public Works, 426 U.S. 736 (1976), by a 5-4 vote, the Court upheld the award of annual support grants to four Catholic colleges under a Maryland grant program for private postsecondary institutions. As in Hunt, the Court majority (in a plurality opinion and a concurring opinion) determined that the colleges at issue were not “pervasively sectarian” (426 U.S. at 752, 755) and that, had they been so, the establishment clause might have prohibited the state from awarding the grants. And in the fourth case, Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986), the Court rejected an establishment clause challenge to a state vocational rehabilitation program for the blind that provided assistance directly to a student enrolled in a religious ministry program at a private Christian college.

Distinguishing between institution-based aid and student-based aid, the unanimous Court concluded that the aid plan did not violate the second prong of the Lemon test, since any state payments that were ultimately channeled to the educational institution were based solely on the “genuinely independent and private choices of the aid recipients.” Taken together, these U.S. Supreme Court cases suggest that a wide range of postsecondary support programs can be devised compatibly with the establishment clause and that a wide range of church-related institutions can be eligible to receive government support.

Of the four Supreme Court cases, only Witters focuses on student-based aid. Its distinction between institutional-based aid (as in the other three Supreme Court cases) and student-based aid has become a critical component of establishment clause analysis. In a later case, Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (an elementary/secondary education case), the Court broadly affirmed the vitality of this distinction and its role in upholding government aid programs that benefit religious schools. Of the other three Supreme Court cases—Tilton, Hunt, and Roemer—Roemer is the most revealing, at least as to its facts. There the Court refused to find that the grants given a group of Catholic colleges constituted support for religion—even though the funds were granted annually and could be put to a wide range of uses, and even though the schools had church representatives on their governing boards, employed Roman Catholic chaplains, held Roman Catholic religious exercises, required students to take religion or theology classes taught primarily by Roman Catholic clerics, made some hiring decisions for theology departments partly on the basis of religious considerations, and began some classes with prayers. Roemer, however, has been criticized in later U.S. Supreme Court cases, especially for its “pervasively sectarian” reasoning. (See e.g., Mitchell v. Helms, 530 U.S. 793 (2000) [introducing a “neutrality-plus” test].)⁹

Post-Roemer cases in the lower courts have frequently involved the state's issuance of revenue bonds to finance the building projects of private religious institutions. The issues usually implicate the federal Constitution's establishment clause and the Roemer line of cases discussed above, and may also implicate the state constitution's religion clauses.¹⁰

When issues arise concerning government support for religious institutions, or their students or faculty members, the federal Constitution (as in the cases above) is not the only source of law that may apply. In some states, for instance, the state constitution will also play an important role. A line of cases concerning various student aid programs of the state of Washington provides an instructive example of the role of state constitutions and the complex interrelationships between the federal establishment and free exercise clauses and parallel provisions in state constitutions. The first case in the line is the U.S. Supreme Court's decision in Witters v. Washington Department of Services for the Blind (Witters I), discussed above. There the Court remanded the case to the Supreme Court of Washington (whose decision the U.S. Supreme Court had reversed), observing that the state court was free to consider the “far stricter” church-state provision of the state constitution. On remand, the state court concluded that the state constitutional provision—prohibiting use of public moneys to pay for any religious instruction—precluded the grant of state funds to the student enrolled in the religious ministry program (Witters v. State Commission for the Blind, 771 P.2d 1119 (Wash. 1989) [hereinafter, Witters II]). First the court held that providing vocational rehabilitation funds to the student would violate the state constitution because the funds would pay for “a religious course of study at a religious school, with a religious career as [the student's] goal” (771 P.2d at 1121). Distinguishing the establishment clause of the U.S. Constitution from the state constitution's provision, the court noted that the latter provision “prohibits not only the appropriation of public money for religious instruction, but also the application of public funds to religious instruction” (771 P.2d at 1122). Then the court held that the student's federal constitutional right to free exercise of religion was not infringed by denial of the funds, because he is “not being asked to violate any tenet of his religious beliefs nor is he being denied benefits ‘because of conduct mandated by religious belief’” (771 P.2d at 1123). Third, the court held that denial of the funds did not violate the student's equal protection rights under the Fourteenth Amendment, because the state has a “compelling interest in maintaining the strict separation of church and state set forth” in its constitution, and the student's “individual interest in receiving a religious education must…give way to the state's greater need to uphold its constitution” (771 P.2d at 1123).

For further developments in the State of Washington, subsequent to Witters I and Witters II, see State ex rel. Mary Gallwey v. Grimm, 48 P.3d 274 (Wash. 2002). And for more recent developments in the State of Washington, subsequent to Mary Gallwey, see Davey v. Locke, 299 F.3d 748 (9th Cir. 2002), rvsd., Locke v. Davey, 540 U.S. 712 (2004), discussed immediately below.

Locke v. Davey involved a free exercise clause challenge to yet another of the State of Washington's student financial aid programs. In its opinion rejecting the challenge, the U.S. Supreme Court probed the relationship between the federal Constitution's two religion clauses and the relationship between these clauses and the religion clauses in state constitutions.

At issue was Washington's Promise Scholarship Program which provided scholarships to academically gifted students for use at either public or private institutions—including religiously affiliated institutions—in the state. Consistent with its interpretation of article I, section 11 of the state constitution in Witters II, however, the Washington Supreme Court stipulated that aid may not be awarded to “any student who is pursuing a degree in theology” (see Wash. Rev. Code § 28B.10.814). The plaintiff, Joshua Davey, had been awarded a Promise Scholarship and decided to attend a Christian college in the state to pursue a double major in pastoral ministries and business administration. When he subsequently learned that the pastoral ministries degree would be considered a degree in theology and that he could not use his Promise Scholarship for this purpose, Davey declined the scholarship. He then sued the state, alleging violations of his First Amendment speech, establishment, and free exercise rights as well as a violation of his equal protection rights under the Fourteenth Amendment.

In the federal district court, Davey lost on all counts. On appeal, however, the U.S. Court of Appeals for the Ninth Circuit upheld Davey's free exercise claim. Applying strict scrutiny, the appellate court invalidated the state's exclusion of Davey from the scholarship program “based on his being a theology major.” By a 7-2 vote, the U.S. Supreme Court reversed the Ninth Circuit and upheld the state's exclusion of theology degrees from the Promise Scholarship Program. In the majority opinion by Chief Justice Rehnquist, the Court declined to apply strict scrutiny analysis. Characterizing the dispute as one that implicated both the free exercise clause and the establishment clause of the federal Constitution, the Court recognized that “these two clauses…are frequently in tension” but that there is “play in the joints” (540 U.S. at 718, quoting Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 669 (1970)) that provides states some discretion to work out the tensions between the two clauses. In particular, a state may sometimes give precedence to the anti-establishment values embedded in its own state constitution rather than the federal free exercise interests of particular individuals. To implement this “play in the joints” principle, the Court applied a standard of review that was less strict than the standard it had usually applied to cases of religious discrimination.

Under the Court's prior decision in Witters I (above), “the State could…permit Promise Scholars to pursue a degree in devotional theology” (emphasis added). It did not necessarily follow, however, that the federal free exercise clause would require the state to cover students pursuing theology degrees. The question therefore was “whether Washington, pursuant to its own constitution…[as authoritatively interpreted by the state courts],…can deny theology ‘students funding for religious instruction without violating the [federal] Free Exercise Clause'” (540 U.S. at 719).

The Court found that “[t]he State has merely chosen not to fund a distinct category of instruction”—an action that “places a relatively minor burden on Promise Scholars” (540 U.S. at 721, 725). Moreover, the state's different treatment of theology majors was not based on “hostility toward religion,” nor did the “history or text of Article I, § 11 of the Washington Constitution…[suggest] animus towards religion.” The difference instead reflects the state's “historic and substantial state interest,” reflected in article I, section 11, in declining to support religion by funding the religious training of the clergy. Based on these considerations, and applying its lesser scrutiny standard, the Court held that the State of Washington's exclusion of theology majors from the Promise Scholarship Program did not violate the free exercise clause.

The Court has thus created, in Locke v. Davey, a kind of balancing test for certain free exercise cases in which a state's different treatment of religion does not evince “hostility” or “animus” toward religion. Under this balancing test, the extent of the burden the state has placed on religious practice is weighed against the substantiality of the state's interest in promoting anti-establishment values. The lesser scrutiny that this balancing test produces stands in marked contrast to both the strict scrutiny required in cases like Lukumi Babalu Aye, 508 U.S. 520 (1993) and the minimal scrutiny used in cases, like Employment Division v. Smith (Section 1.6.2 above), that involve religiously neutral statutes of general applicability. Some of the Court's reasoning supporting this balancing test and its application to the Promise Scholarships seems questionable,¹¹ as Justice Scalia pointed out in a dissent (540 U.S. at 731–32). Moreover, the circumstances in which the balancing test should be used—beyond the specific circumstance of a government aid program such as that in Locke—are unclear. But the 7-2 vote upholding Washington's action nevertheless indicates strong support for a flexible and somewhat deferential approach to free exercise issues arising in programs of government support for higher education and, more specifically, strong support for the exclusion (if the state so chooses) of theological and ministerial education from state student aid programs—at least when the applicable state constitution has a strong anti-establishment clause.

In 2017, the U.S. Supreme Court addressed yet another area of concern regarding government support for religion. The issues concerned whether or when government agencies must include churches, other religious organizations, and religious observers in government programs providing services or financial assistance to secular organizations and nonreligious persons. The case, Trinity Lutheran Church of Columbia v. Comer, 137 S. Ct. 2012 (2017), features the free exercise clause rather than the establishment clause. Although Trinity Lutheran is not a higher education case, it is important to higher education because analogous issues may arise in that context and the applicable case law may be much the same.

In Trinity Lutheran, the Church had a Child Learning Center that operated under the auspices of the church on church property. The Center is open to children irrespective of religious persuasion. The Center had a playground that was in need of resurfacing. The state, through its Department of Natural Resources, had a grant program that provided funds to nonprofit organizations for resurfacing playgrounds with recycled scrap tires. The church applied for a grant under this program, and its application was highly rated (fifth among 44 applicants). The application was rejected, however, because the state had an express policy, rooted in the Missouri Constitution, of denying state financial assistance to churches.

Trinity Lutheran sued the Department. The district court and the Court of Appeals decided in the Department's favor, and the U.S. Supreme Court granted certiorari. Setting the framework for analysis of the case, the Court noted that the parties agreed that the establishment clause “does not prevent Missouri from including Trinity Lutheran in the Scrap Tire Program” (137 S. Ct. at 2019). But that “does not answer the question under the Free Exercise Clause.”

The Court then set forth the basic free exercise principles applicable to this case:

The Free Exercise Clause “protect[s] religious observers against unequal treatment” and subjects to the strictest scrutiny laws that target the religious for “special disabilities” based on their “religious status.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533, 542 (1993) (internal quotation marks omitted). Applying that basic principle, this Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest “of the highest order”. McDaniel v. Paty, 435 U.S. 618, 628 (1978) (plurality opinion) (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)) [137 S. Ct. at 2019].

Relying on these basic principles, the Court considered the parties' arguments that are briefly reviewed here. The Church claimed that the Department's policy precluded the Church from competing for a scrap tire grant “solely because it is a church.” The Department refused to accept Trinity Lutheran's application, while considering the applications of all other nonprofits.

As explained by the Court:

The Department's policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution…. When the State conditions a benefit in this way,…the State has punished the free exercise of religion. [137 S. Ct. at 2021–22.]

In contrast:

The Department contends that merely declining to extend funds to Trinity Lutheran does not prohibit the Church from engaging in any religious conduct or otherwise exercising its religious rights…. Here the Department has simply declined to allocate to Trinity Lutheran a subsidy the State had no obligation to provide in the first place. That decision does not meaningfully burden the Church's free exercise rights… [137 S. Ct. at 2022.]

The Department also asserted a second argument focused on the Missouri State Constitution, Article I, section 7, the state's “anti-establishment” clause, which is stricter than the federal establishment clause. The Department argued that it had an interest in achieving more separation of church and state than the federal establishment clause provides. The Court rejected that argument as well, asserting that the Department's (or State's) “anti-establishment interest” is not sufficiently strong to override the strong and clear federal free exercise interest in this case. (Although the Department's argument was rejected here, the Court's language suggests that it could be successful in other cases if the state's anti-establishment interest is greater or the federal free exercise interest is lesser.)

By a vote of 7-2, in an opinion by Chief Justice Roberts, the U.S. Supreme Court held in favor of Trinity Lutheran Church. The Justices filed five opinions in the case, which should provide somewhat of a grand debate on the free exercise clause for the future. Since the Court's opinions are somewhat narrow, there will likely be an important role for Trinity Lutheran to play as precedents in future litigation.

The U.S. Supreme Court, over time, has become quite hospitable to the inclusion of church-related institutions in government support programs for postsecondary education. This has also been the case for the inclusion of students in student aid programs (short of the aid at issue in Locke v. Davey) (above). The distinction between institutional-based aid and student-based aid has been very important. In earlier days when courts were implementing the Lemon tests, the emphasis was on the federal establishment clause. Over time, the federal free exercise clause has become increasingly important. Moreover, in states whose constitutions have their own establishment clauses that are more restrictive than the federal clause, intricate questions have arisen when states claim that their own anti-establishment values should take place over those of the federal government.

Given this picture of judicial activity in religion cases, it appears that there are still numerous issues to be addressed. These cases may be contentious, with strong disagreements and split verdicts. Trinity Lutheran Church, although not a higher education case, may be a useful example of such cases with split verdicts and strong disagreements, as well as a case where one of the parties has asserted a state establishment claim.

1.6.4 Religious autonomy rights of individuals in public postsecondary institutions. Whereas Sections 1.6.2 and 1.6.3 focused on church-state problems involving private institutions, this section focuses on church-state problems in public institutions. As explained in Section 1.6.1, public institutions are subject to the strictures of the First Amendment's establishment and free exercise clauses and parallel clauses in state constitutions, which are the source of rights that faculty members, students, and staff members may assert against their institutions. The most visible and contentious of these disputes involve situations in which a public institution has incorporated prayer or some other religious activity into an institutional activity or event.

In Tanford v. Brand, 104 F.3d 982 (7th Cir. 1997), for example, the U.S. Court of Appeals for the Seventh Circuit addressed the issue of prayer as part of the commencement exercises at a state university. A law school professor, law students, and an undergraduate student brought suit, challenging Indiana University's 155-year-old tradition of nonsectarian invocations and benedictions during commencement. The plaintiffs claimed that such a use of prayer, nonsectarian or not, violated the First Amendment's establishment clause and was equivalent to state endorsement of religion. The court rejected the plaintiff's First Amendment establishment clause claims, holding that the prayer tradition “‘is simply a tolerable acknowledgment of beliefs widely held among the people of this country.’ Marsh v. Chambers, 463 U.S. 783, 792 (1983).” Moreover, according to the court, the prayers at the commencement were voluntary and not coercive. Nearly 2,500 of the 7,400 graduating students had elected not to attend the previous commencement; those that did attend were free to exit before the invocation and benediction and return after each was completed; and those choosing not to exit were free to sit, as did most in attendance, during both ceremonies.

In Chaudhuri v. Tennessee, 130 F.3d 232 (6th Cir. 1997), the court endorsed and extended the holding in Tanford. The plaintiff, a practicing Hindu originally from India and a tenured professor at Tennessee State University (TSU), claimed that the use of prayers at university functions violated the First Amendment's establishment clause. The functions at issue were not only graduation ceremonies as in Tanford, but also “faculty meetings, dedication ceremonies, and guest lectures.” After the suit was filed, TSU discontinued the prayers and instead adopted a “moment of silence” policy. The professor then challenged the moment of silence as well, alleging that the policy had been adopted in order to allow continued use of prayers. The appellate court determined that neither the prayers nor the moments of silence violated the establishment clause.

The Chaudhuri court used the three-part test from Lemon v. Kurtzman, 403 U.S. 602 (1971) (Section 1.6.3), to resolve both the prayer claim and the moment-of-silence claim. Under the first prong of the Lemon test, the court found, as in Tanford, that a prayer may “serve to dignify or to memorialize a public occasion” and therefore has a legitimate secular purpose. Moreover, “if the verbal prayers had a legitimate secular purpose…it follows almost a fortiori that the moments of silence have such a purpose.” Under the second prong, the court found that the principal or primary effect of the nonsectarian prayers was not “to indoctrinate the audience,” but rather “to solemnize the events and to encourage reflection.” As to the moment of silence, it was “even clearer” that the practice did not significantly advance or inhibit religion because individuals could use the moment of silence for any purpose—religious or not. And, under the final prong of the Lemon test, the court found that “any entanglement resulting from the inclusion of nonsectarian prayers at public university functions is, at most, de minimis” and that the “entanglement created by a moment of silence is nil.”

As in Tanford, the Chaudhuri court also concluded that the “coercion” test established in Lee v. Weisman, 505 U.S. 577 (1992), was not controlling. At Tennessee State University (TSU) (in contrast to the secondary school in Lee), according to the court, there was no coercion to participate in the prayers. It was not mandatory for Professor Chaudhuri or any other faculty member to attend the TSU functions at issue, and there was no penalty for nonattendance. Moreover, there was no “peer pressure” to attend the functions or to participate in the prayers (as there had been in Lee), and there was “absolutely no risk” that any adult member present at a TSU function would be indoctrinated by the prayers.

Although both courts resolved the establishment clause issues in the same way, these issues may have been more difficult in Chaudhuri than in Tanford; and the Chaudhuri court may have given inadequate consideration to some pertinent factors that were present in that case but apparently not in Tanford. As a dissenting opinion in Chaudhuri points out, the court may have discounted “the strength of the prayer tradition” at TSU, the strength of the “community expectations” regarding prayer, and the significant Christian elements in the prayers that had been used. Moreover, the court lumped the graduation exercises together with other university functions as if the relevant facts and considerations were the same for all functions. Instead, each type of function deserves its own distinct analysis, because the context of a graduation ceremony, for instance, may be quite different from the context of a faculty meeting or a guest lecture.

The reasoning and the result in Tanford and Chaudhuri may be further subject to question in the wake of the U.S. Supreme Court's ruling in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000). In considering the validity, under the establishment clause, of a school district policy providing for student-led invocations before high school football games, the Court placed little reliance on factors emphasized by the Tanford and Chaudhuri courts, and instead focused on factors to which these courts gave little attention—for example, the “perceived” endorsement of religion implicit in the policy itself, the “history” of prayer practices in the district and the intention to “preserve” them, and the possible “sham secular purposes” underlying the student-led invocation policy. In effect, the arguments that worked in Tanford and Chaudhuri did not work in Santa Fe, and factors touched upon only lightly in Tanford and Chaudhuri were considered in depth in Santa Fe, thus leading to the Court's invalidation of the Santa Fe School District's invocation policy. An open question involves whether invocations at a college or university graduation are more analogous, for an establishment clause analysis, to high school graduations or to prayers before the start of legislative meetings. (For a recent U.S. Supreme Court case upholding the permissibility of a prayer at a municipal meeting, see Town of Greece v. New York, 134 S. Ct. 1811 (2014).)

A 2005 case provides an instructive example of institutional activities other than group prayer that may raise establishment clause issues. The case, O'Connor v. Washburn University, 416 F.3d 1216 (10th Cir. 2005), also illustrates the type of establishment claim premised on institutional disapproval of or hostility to religion rather than institutional endorsement of or support for religion.

In O'Connor, a professor and a student claimed that the university (a public university) had installed a statue on campus that negatively and offensively portrayed Roman Catholicism, thus violating their establishment clause rights. According to the appellate court, the statue, “entitled ‘Holier Than Thou,’ depicts a Roman Catholic Bishop with a contorted facial expression and a miter that some have interpreted as a stylized representation of a phallus.” The statue had been selected, along with four others, in an annual competition, “for displaying in a temporary outdoor sculpture exhibition [that] supplements the university's collection of twenty-five [permanent] outdoor statues.” Selection of the five temporary statues was made by a three-person jury of art professionals chosen by the university's Campus Beautification Committee, and both the committee and the university president had approved the selections. Once the statue was installed along a “high traffic sidewalk,” the university began receiving numerous complaints from within and outside the university. The university considered the complaints but declined to remove the statue.

In ruling on the establishment clause claim, the appellate court applied the Lemon test, as modified by the “endorsement or disapproval” test (see 416 F.3d at 1223–24), placing more emphasis on the latter test (often called just the “endorsement test”) than did the courts in the cases discussed above. The endorsement test focuses on whether the governmental activity at issue “has either (1) the purpose or (2) the effect of conveying a message that religion or a particular religious belief is favored or preferred,” on the one hand, or disapproved or disparaged on the other. Under the first prong of the test, “purpose,” the question is “whether ‘the government's actual purpose is to endorse or disapprove of religion.’” Under the second prong, “effect,” the question is “whether a reasonable observer aware of the history and context of the [activity at issue] would find the [activity] had the effect of favoring or disfavoring a certain religion [or religious belief].” (See 415 F.3d at 1227–31, quoting Bauchman ex rel. Bauchman v. W. High School, 132 F.3d at 551–52.) Applying this test, the court focused on whether, in the context of all the pertinent facts, the university's selection or placement of the statue, or its refusal to remove it after receiving complaints had “either (1) the purpose or (2) the effect of conveying a message” that the university disapproved of or disparaged Roman Catholicism or a particular Catholic belief. Regarding “purpose,” the court determined that the plaintiffs had not produced any evidence that the university's actions were motivated by a disapproval of Catholicism and that the university had other aesthetic and educational “reasons” for its decisions. Regarding “effect,” the court determined that, even if the effect of the statue was to convey “an anti-Catholic message” (a point on which the court did not rule), a “reasonable observer viewing [the statue] in context would understand that the university had not approved or agreed with that message.”

It was important to the court's reasoning that the “Holier Than Thou” statue was displayed on a university campus rather than, say, in a city park or on the grounds of a county office building. The court emphasized that a campus is “peculiarly the marketplace of ideas” (citing Healy v. James, 408 U.S. at 180), a place where government “acts against a background and tradition” of academic freedom (citing Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. at 835)). Moreover, the placement and retention of the statue, in context, had implicated the university's educational mission and its curriculum. Even though the statue was not created as part of a course, it was nevertheless “part of [the university's] educational curriculum”; the president and the vice president of academic affairs had both “testified that they strove to extend the educational environment…beyond the classroom to encompass various stimuli including art, theatre, music, debate, athletics, and other activities.”

Apparently, in such academic, higher education contexts, courts may accord public colleges and universities more leeway than other governmental entities to establish religiously neutral educational reasons for engaging in activities that involve religion in some way. Similarly, in this context, courts may find it less likely that a reasonable observer “would associate” a particular, allegedly religious message with the college or university itself (416 F.3d at 1229–30). More broadly, these attributes of higher education serve to support the assertion, made by the U.S. Supreme Court and repeated by lower courts, “that religious themes ‘may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like’” (416 F.3d at 1230, quoting Stone v. Graham, 449 U.S. 39, 42 (1980)).

The U.S. Supreme Court case, Pleasant Grove City v. Summum, 555 U.S. 460 (2009), introduces an additional dimension to cases like O'Connor v. Washburn University. In particular, Pleasant Grove illustrates how there could be not only an establishment challenge but also a free speech clause challenge to a governmental entity's placement or rejection of placement of religious monuments or statues on public property. Faced with such a challenge, according to the Court, the governmental entity may often prevail by characterizing the placement of the monument or statue as “governmental speech” rather than “private speech.” Success with this argument, however, would not insulate the governmental entity from an establishment clause challenge, which requires a separate analysis as illustrated by O'Connor.