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Excessive Entanglement: A Wavering First Amendment Standard

Published online by Cambridge University Press:  05 August 2009

Paul J. Weber
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Abstract

The excessive entanglement standard is part of the Supreme Court's three-pronged test for determining the constitutional validity of government aid to religion. This article challenges in turn the validity of that standard and its two components, namely the criteria of administrative entanglement and political divisiveness. The administrative entanglement criterion is flawed because it violates the principle of equality. The political divisiveness standard, on the other hand, not only misreads the intention of the Founding Fathers but also ignores the value of religious conflict in a democracy and the strategy for handling such conflict proposed by James Madison.

Type
Research Article
Information
The Review of Politics , Volume 46 , Issue 4 , October 1984 , pp. 483 - 501
Copyright
Copyright © University of Notre Dame 1984

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References

NOtes

1 403 U.S. 602 (1971).Google Scholar

2 Ibid. at 612–614.

3 E.g., Gaffney, Edward McGlynn Jr, “Political Divisiveness along Religious Lines: The Entanglement of the Court in Sloppy History and Bad Public Policy,” St. Louis University Law Journal, 24 (1980), 205;Google ScholarSerritella, James A., “Tangling with Entanglement: Toward a Constitutional Evaluation of Church-State Contacts,” Law and Contemporary Problems 44 (1981), 143;CrossRefGoogle ScholarMcNab, Janet, “The Forbidden Fruit of Church-State Contacts: The Role of Entanglement Theory in its Ripening,” Suffolk University Law Review, 16 (1982), 725.Google Scholar

4 397 U.S. 664 (1970).

5 Ibid. at 776, emphasis added.

6 403 U.S. 602 (1971).

7 Ibid. at 615.

8 Ibid. at 621–622.

9 403 U.S. 672 (1971).

10 413 U.S. 756 (1973).

11 421 U.S. 349 (1975).

12 Ibid. at 369.

13 Ibid. at 370.

14 Ripple, Kenneth F., “The Entanglement Test of the Religion Clauses: A Ten Year Assessment,” UCLA Law Review, 1127 at 1204 (1980), 1204.Google Scholar

15 426 U.S. 736 (1976).

16 Ibid. at 763–764.

17 433 U.S. 229(1977).

18 440 U.S. 490 (1979).

19 Ibid. at 502.

20 444 U.S. 646 (1980).

21 Ibid. at 660.

22 454 U.S. 263 (1981). In the 1984–85 Term the court will almost certainly rule on the constitutionality of Congress's expansion of the equal access principles to cover primary and secondary schools as well as universities.

23 Ibid. at 272. Citations omitted.

24 456 U.S. 913 (1982).

25 Ibid. at 921.

26 Ibid. at 924.

27 The administrative entanglement concept has been mentioned in Bob Jones University v. United States (Slip op. 81–3, decided 24 May 1983), Marsh v. Chamber (Slip op. 82–23, decided 5 July 1983), Mueller v. Allen (Slip op. 82–195, decided 29 June 1983), and Lynch v. Donnelly (Slip op. 92–1256, decided 5 March 1984).

28 For a discussion of lower court chaos in this area, see Serritella, , “Tangling with Entanglement,” p. 146 ff.Google Scholar For a discussion of scholarly concerns see Ripple, Kenneth F., “The Entanglement Test of the Religion Clauses—A Ten Year Assessment.”Google Scholar

29 Mr. Serritella, for example, suggests that courts use a three level analysis: (1) determine whether an activity is religious or not, (2) determine the frequency and effects of government-religious contacts, and (3) determine the government interest served. If the activity is religious, contact is frequent and no compelling state interest is served, the activity must be prohibited as excessively entangling; Serritella, , “Tangling with Entanglement,” pp. 155 ff.;Google Scholar Ms. McNab recommends replacing entanglement theory with a substantial benefit standard because the former has been so extended as to lose any effectiveness as an analytical tool. McNab, , “The Forbidden Fruit of Church-State Contacts,” pp. 726 ff.Google Scholar

30 330 U.S. 1 (1947).

31 See Weber, Paul J. and Gilbert, Dennis, Private Churches and Public Money (Westport, Ct.: Greenwood Press, 1981);Google ScholarMalbin, Michael, Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, D.C.: American Enterprise Institute, 1978);Google ScholarCord, Robert L., Separation of Church and State: Historical Fact and Current Fiction (New York: Lambeth Press, 1982).Google Scholar

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33 Lukacs, John, “The Age of Bureaucracy Has Replaced the Era of Democracy,” U.S. News and World Report, 97 (13 08 1984), 70.Google Scholar

34 See Kelley, Dean M., “Uncle Sam, Church Inspector,” Liberty, 79 (05–06 1984).Google Scholar

35 See “Pluralism in America,” Law Quadrangle Notes (University of Michigan Law School) 28 (Winter 1984), 14.Google Scholar

36 United States v. Carolene Products Co., 304 U.S. 144, 152–153 n. 4 (1983).Google Scholar

37 The author has argued elsewhere that such an approach does not require an abandonment of the concept of separation of church and state, but rather an understanding that “separation” is a generic concept with at least five specific meanings: (1) structural separation; (2) absolute separation; (3) supportive separation; (4) transvaluing separation; and (5) equal separation. Reliance on the concept of “equal separation” is not only entirely consistent with the “intent of the Founders,” it is the most accurate expression of it. See Weber, Paul J., “James Madison and Religious Equality: The Perfect Separation,” The Review of Politics 44 (1982), 163–86.CrossRefGoogle Scholar

38 403 U.S. 602, 622 (1971).

39 Ibid.

40 Nye, R., Conflict Among Humans (1973), p. xiii.Google Scholar

41 Hager, Don, “Religious Conflict in the United States,” Journal of Social Issues, 12 (1956).Google Scholar Emphasis added.

42 Herberg, Will, “Religious Group Conflict in America,” in Religion and Social Conflict, ed. Lee, and Marty, (New York: Oxford University Press, 1964), p. 157.Google Scholar

43 Marty, Martin E., “Epilogue: The Nature and Consequences of Social Conflict for Religious Groups,” in Lee, and Marty, , Religion, p. 174.Google Scholar

44 For an excellent discussion of the interrelations of religion and politics throughout American history, including an analysis of voting behavior, see Lipset, Seymour M., “Religion and Politics in American History,” in Religious Conflict in America, ed. Raab, E. (Garden City, N.Y.: Doubleday-Achor Books, 1964), pp. 60–89.Google Scholar

45 For an elaboration of this point, see Coleman, James, “Social Cleavage and Religious Conflict,” Journal of Social Issues, 12 (1956), 44–56.CrossRefGoogle Scholar

46 Lemon v. Kurtzman, 403 U.S. 602, 622 (1971).Google Scholar

47 Freund, Paul A., “Public Aid to Parochial Schools,” Harvard Law Review, 82 (1969), 1680–92.CrossRefGoogle Scholar The statement reads: “While political debate and division is normally a wholesome process for reaching viable accommodations, political division along religious lines is one of the principal evils that the first amendment sought to forestall.”

48 Madison, James, Hamilton, Alexander and Jay, John, The Federalist Papers (New York: The New American Library, 1961), p. 78.Google Scholar

49 Ibid.

50 Federalist, No. 51, p. 324.Google Scholar

51 Hunt, Gilliard, ed., The Writings of James Madison 9: 484, 487,Google Scholar as quoted in Everson v. Board of Education, 330 U.S. 1, 40 n. 28 (1947)Google Scholar (Rutledge, J., dissenting).

52 Lemon v. Kurtzman, 403 U.S. 602, 623 (1971).Google Scholar

53 Federalist, No. 51, p. 325.Google Scholar While Madison was almost certainly not alluding to the courts when he used the terms, “a will independent of the society itself,” its appropriateness must give one pause.

54 Ibid., p. 84.

55 Slip op. 82–1256 (Decided 5 March 1984).

56 Ibid., pp. 14–15.

57 Critics in the law journals have been, if anything, even more harsh. For example, Edward McGlynn Gaffney concludes that “it is time for the Court to abandon the political divisiveness test because the test is dysfunctional, illiberal, theologically unsound, constitutionally impermissable, and historically erroneous.” See “Political Divisiveness Along Religious Lines: The Entanglement of the Court in Sloppy History and Bad Public Policy,” pp. 205, 226.

58 Slip op. 82–23 (Decided 5 July 1983).

59 465 U.S. 228 (1982).

60 Slip op. 82–1256 (Decided 5 March 1984).

61 Ibid., p. 9. This remark brought a long and anguished footnote in Justice Brennan's dissent, resisting the reduction of the Lemon test to a “useful tool” (J. Brennan dissenting, n. 2, pp. 2–3).

62 433 U.S. 229, 263 (4. Powell concurring in part and dissenting in part).

63 103 S.Ct. 3062, 3071, n. 11 (1983).

64 Slip op. 82–1256. Justice O'Connor concurring, p. 3. (5 March 1984).