University of Missouri School of Law Scholarship Repository Faculty Publications Spring 1984 Establishment Clause Limits on Governmental Interference with Religious Organizations Carl H. Esbeck University of Missouri School of Law, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the First Amendment Commons, and the Religion Law Commons Recommended Citation Carl H. Esbeck, Establishment Clause Limits On Governmental Interference With Religious Organizations, 41 Wash. & Lee L. Rev. 347 (1984) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. WASHINGTON AND LEE LAW REVIEW Volume 41 Spring 1984 Number 2 ESTABLISHMENT CLAUSE LIMITS ON GOVERNMENTAL INTERFERENCE WITH RELIGIOUS ORGANIZATIONS CARL H. ESBECK* . I. INTRODUCTION ....................................... 347 II. HISTORY AS AN AID TO UNDERSTANDING ................. 352 A. Colonial Beginnings ............................... 354 B. The Principle is Born ............................. 360 C. The First Congress ............................... 361 D. Changing Times .................................. 365 III. INDEPENDENT, VOLUNTARISTIC CHURCHES IN A SECULAR STATE ...................................... 369 IV. THE CASE LAW IN THE SUPREME COURT ................ 379 A. The Nonentanglement Requirement .................. 382 B. Avoiding Intrafaith Disputes ....................... 390 C. The "Fervency Test" ............................. 397 V. THE CASE LAW IN THE LOWER COURTS ................. 398 A. Labor & Equal Employment Legislation ............ 400 B. Regulation of Religious Social Welfare Agencies ..... 410 C. Private Law Actions for Religious Fraud & Other Torts ...................................... 414 VI. CONCLUSION ......................................... 419 I. INTRODUCTION Despite occasional sharp divisions within the United States Supreme Court, since Everson v. Board of Education' the Court unwaveringly has construed * Associate Professor of Law, University of Missouri-Columbia. B.S., 1971, Iowa State University; J.D., 1974, Cornell University. The author would like to acknowledge the research assistance of Ronald Conway in the preparation of this article. 1. 330 U.S. 1 (1947) (5-4 decision upholding reimbursement to parents of fares paid for transportation of their children to parochial schools). HeinOnline -- 41 Wash. & Lee L. Rev. 347 1984 WASHINGTON AND LEE LAW REVIEW [Vol. 41:347 the establishment clause2 to place a formidable obstacle before religious groups who seek to use the offices of government to advance their cause. In placing distance between the agencies of government and religious entities, however, the establishment clause also protects these same religious organizations from undue interference by government. The establishment clause should not only check encroachment by the church, but in the seventeenth century perception of Roger Williams, the establishment clause should prevent "worldly corrup- tions [that] might consume the churches if sturdy fences against the [govern- ment] were not maintained." 3 In this article it will be argued that the establishment clause, properly viewed, functions as a structural provision regimenting the nature and degree of involvement between government and religious associations." The degree of involvement should be a limited one, although it is clear that the interrela- tionship need not nor cannot be eliminated altogether.5 Although the degree of desired separation has proven to be a continuing controversy, the goal of separation is not so divisive. The aim of separation of church and government is for each to give the other sufficient breathing space.6 The ordering principle is reciprocity in which "both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere." 7 Those who were influential in our nation's history envisioned the churches and the state in a kind of parallelism, with neither subordinate to the other.' Each should be guarded from being co-opted by the other, and each required to forbear from undue entanglement with the instrumentalities of the other., Importantly, if the clause's structural ordering of these two circles of influence in society is reciprocal, then religious organizations are afforded a high level of protection from governmental interference. The principle inherent in the establishment clause has come to be called the separation of church and state. The familiar metaphor, "wall of 2. U.S. CONST. amend. I. The establishment and free exercise clauses together read: "Con- gress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof .... ." Id. 3. M. HowE, Tim GARDEN AND THE NVIDERNEss: RELIGION AND GovERNmET IN AmElICAN CONSTITUTIONAL HIsToRY 6 (1965). See infra text accompanying notes 70, 74-77 (discussion of Roger Williams (1603-1683) and his contribution to religious liberty). 4. R. LEE, A LAWYER LOOKS AT THE CoNsTrrUTION 129, 135 (1981); see J. ELY, DEMOCRACY AND DISTRUST 94 (1980). 5. Lemon v. Kurtzman, 403 U.S. 602, 614 (1971); School Dist. of Abington Township v. Schempp, 374 U.S. 203, 213, 225 (1963); id. at 306 (Goldberg, J., concurring); Zorach v. Clauson, 343 U.S. 306, 315 (1952). 6. J. ELY, supra note 4, at 94. 7. McCollum v. Bd. of Educ., 333 U.S. 203, 212 (1948) (disallowing religious instruction in public schools); cf. L. TRIE, AMERICAN CONSTrruTiONAL LAW §14-3, at 817 (1978). 8. Derr, The FirstAmendment As A Guide to Church-State Relations: Theological Illusions, Cultural Fantasies, and Legal Practicalities,CHURCH, STATE AND PoLrics 75, 82 (J. Hensel ed. 1981). 9. See infra text accompanying notes 166-70 (manner in which religious organizations are harmed by too close an embrace by government). HeinOnline -- 41 Wash. & Lee L. Rev. 348 1984 1984] ESTABLISHMENT CLA USE LIMITS separation,' ' I however, is a little misleading." Separation severs the formal link between church and government, but it does not disassociate religion from government.' 2 In some instances, considerable interaction is not only permit- ted but constitutionally protected. For example, religious organizations may seek to influence the government's policies through use of speech, press, and petition.' 3 A more apt description of the American arrangement is a limita- tion on any mutual dependence, "both as the Church might seek to control the organic action of the state, and as the state might affect to interfere with the faith and function of the church.""' Nevertheless, the separation terminology describing this ideal is so entrenched in the literature and the case law that its use will be continued here. Although the lower courts are construing the establishment clause as protecting religious groups,' 5 the Supreme Court has been timid and has not frontally addressed and developed the protection for religious groups in- tended by the clause.' 6 To be sure, the Court's aggressiveness in preventing 10. The "wall of separation" metaphor is that of Thomas Jefferson appearing in a letter to the Danbury Baptist Association (Jan. 1, 1802), reprintedin S. PADOVER, THE CoMPLEa JEF- FERSON 518-19 (2d ed. 1969). It was first adopted by the Supreme Court in Reynolds v. United States, 98 U.S. 145, 164 (1878), and was carried into the modern era by Justice Black in Everson v. Board of Educ., 330 U.S. 1, 16, 18 (1947), and McCollum v. Board of Educ., 333 U.S. 203, 311, 212 (1948). See generally Comment, Jefferson and the Church-State Wall: A Historical Examination of the Man and the Metaphor, 1978 B.Y.U.L. Rv.645. 11. Miller, The American Theory of Religious Liberty, FREEDoM OF RELIGION IN AmERICA: HISTORICAl. RooTs, PHILOSOPHICAL CONCEPTS AND CONTEMPORARY PROBLEIS 137, 138 (H. Clark ed. 1981). The Supreme Court has not held to the notion of an impregnable wall of separation: "Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense.... [T]he line of separation, far from being a "wall," is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." Lemon v. Kurtzman, 403 U.S. 602, 614 (1971). 12. School Dist. of Abington Township v. Schempp, 374 U.S. 203, 225 (1963) ("We agree of course that the state may not establish 'a religion of secularism' in the sense of affirmatively opposing or showing hostility to religion, thus 'preferring those who believe in no religion over those who do believe.' "); id. at 306 (Goldberg, J., concurring); Zorach v. Clauson, 343 U.S. 306, 315 (1952) ("We cannot read into the Bill of Rights ...a philosophy of hostility to religion."). See M. BATES, RELIGIOuS LIBERTY: AN INQuiRY 321 (1945) ("It is often observed that entire separa- tion does not exist, if religion has any vitality or respect in the community and if the state is favorable to the development of the higher interests of its citizens."); Smith, Is the Separation of Church and State an Illusion?, 8 CHRISTENDOMt 317 (1943) ("A church separated from the state is not a church removed from society."). See generally H. BERMAN, THE INTERACTION OF LAW AND RELIGION 77-105 (1974). Professor Berman develops the thesis that all religions have a concern for social order and social justice which causes them to be concerned