What in God's name is going on?

National Review, Feb 8, 1985 by James Jackson Kilpatrick

Brennan expressed a hope that the Nebraska opinion might amount to no more than a passing aberration. His hope was dashed in March of 1984. This time the Court was called upon to consider, in Lynch v. Donnelly, whether the city of Pawtucket, Rhode Island, violates the Establishment Clause by erecting a Nativity scene each Christmas in a downtown park. By a vote of 5 to 4, the Court found no violation. Chief Justice Burger, writing for the majority, found that "when viewed in the proper context of the Christmas holiday," the city-owned creche cannot be viewed as a "purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message." Any notion that figures of Joseph, Mary, and the infant Jesus pose a real danger of establishment of a state church "is farfetched indeed."

Brennan once again dissented strongly. This time he was joined not only by Marshall and Stevens but also by Blackmun. He said with much truth that Burger's opinion "simply cannot be squared with our prior cases." Exactly so. In the 1971 case of Lemon v. Kurtzman, which involved a Pennsylvania program of aid to parochial schools, Burger himself had distilled all the previous Establishment cases and had boiled them down to a three-part test. To pass muster, a state law dealing with religion "first 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 entanglement with religion."

What "secular purpose," the dissenters asked, could be served by legislative prayers or by a municipal creche? It is an insult, said Brennan, to suggest that the Nebraska parson's invocation was intended merely to quiet a chamber of rambunctious lawmakers. An expert witness in the Pawtucket case had attempted to establish a secular justification for the city's Nativity scene; it was to get people "to participate in the Christmas spirit, brotherhood, peace, and let loose with their money." Surely the images of Christ and His mortal family must be intended to serve a higher and holier purpose. The dissenting Justices want the three-part test of Lemon restored, and they will be heard loudly and clearly in the three pending cases from Alabama, Michigan, and Connecticut.

Blurred Lines

ON ONE aspect of the Establishment Clause, all nine Justices are in complete agreement. As Burger said in Lemon, "The line of separation, far from being a 'wall,' is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." It is not unconstitutional to subsidize bus transportation or to provide secular textbooks for children in parochial schools; it is not unconstitutional to exempt church property from taxation. But it emphatically is unconstitutional for the state to supplement the salaries of teachers in church schools; it is unconstitutional for a teacher to post the Ten Commandments on a classroom wall. It is not unconstitutional for a state to issue revenue bonds that will benefit a Baptist college in Charleston. But it in unconstitutional for Pennsylvania to reimburse parents for a part of the tuition they pay to private schools.