Pseudo Complexities and the First Amendment

Fourth Quarter 1999

This winter the U.S. Supreme Court will hear argument in Mitchell v. Helms, a case involving a federal program for loaning library books and educational equipment such as computers and overhead projectors to K-12 schools, including religious schools. The Supreme Court's past decisions on direct aid to religious schools have been beset with real but irrelevant distinctions based on the form of the aid; for example, wall maps are unconstitutional but textbooks are not. The Court is surely guilty of making this First Amendment issue harder than it really is. But there are commentators as well who have an interest in keeping the law of church and state either freighted with minutia or shrouded in mystery. Bringing clarity to the original settlement concerning church-state relations in America means returning to the basics and to the past.

The Constitution consists of rights and structure. People (including organized groups of people) have rights. Governments do not have rights. Governments, rather, have powers and immunities. The powers of the national government are enumerated and limited, an original understanding later made explicit in the Tenth Amendment. National powers are delegated to one of three branches, shared by specified branches, denied to all three, or shared with the several states. These delegations and denials of power constitute the organizational structure of the national government.

In late September of 1789, a resolution listing twelve articles of amendment was settled on by the House and Senate and sent to the states along with a preamble explaining that the "conventions of a number of states had...expressed a desire, in order to prevent misconstruction or abuse of powers, that further declaratory and restrictive clauses should be added [to the Constitution drafted in 1787]." The third of these articles contained the now familiar passage, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Only the third through the twelfth articles received the necessary approval by three-quarters of the states, thus the third was denominated the "First Amendment."

A useful principle that flows from the foregoing is that the Bill of Rights further limited government while vesting no new powers therein. The principle has ready application in sorting through some of the present-day pseudo complexities. For example, it is often said that the First Amendment guarantees a "freedom from religion." The claim has a surface plausibility, at least if one of the purposes of the First Amendment is envisioned as holding religion in check. But the amendment's task is to limit government, not to restrain believers, churches, or religion in general. Thus, the role of the First Amendment is not to protect the nonreligious from the religious. Nor is it to protect minority religions from majority religions. Nor is it to protect government from the churches. The amendment is a check on government and government alone. Accordingly, the amendment guarantees a "freedom from religion" only in the sense that it is a restraint on what government may do by way of appropriating religious symbols and authority and using them to serve the aims of the state.

A new and very promising construction of the "establishment clause" of the First Amendment is the neutrality principle, also characterized in the literature as a rule of "evenhanded-ness," "equal treatment," or "nondiscrimination." The principle is currently favored by religious-liberty advocates representing traditional Catholics, Evangelicals, and Orthodox Jews. In the main, it is also the principle be-hind the Supreme Court's most recent pronouncements on the establishment clause, Rosenberger v. Rector and Visitors of the University of Virginia (1995) and Agostini v. Felton (1997), as well as the Charitable Choice provision in the federal welfare reform act of 1996.

The neutrality principle construes the establishment clause as permitting government aid programs in the areas of education, social services, and health care where the benefits are available to all qualified organizations without regard to religion. By making religious organizations, along with all other service providers, eligible for benefits, the government expands the number and diversity of providers available to students, the infirm, the poor, and the needy. If the Supreme Court, in the pending case of Mitchell v. Helms, allows the loan of library books and computers evenhandedly to all schools, secular and religious alike, then it will be following the neutrality principle.

[Prof. Esbeck teaches law at the University of Missouri-Columbia. He is the author of "The Establishment Clause as a Structural Restraint on Governmental Power," Iowa Law Review (Oct. 1998).]