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Agostini v. Felton: Thickening the
Establishment Clause Stew
Jason M. Waite*
Liberty finds no refuge in a jurisprudence of doubt. 1
I. INTRODUCTION
2
In Agostini v. Felton, the United States Supreme Court reversed its
controversial 1985 decision in Aguilar v. Felton, 3 holding that a federally
funded program providing supplemental, remedial instruction by government employees to disadvantaged children, on a neutral basis on school
premises, including sectarian schools, is not invalid under the Establishment Clause.4
In Aguilar, the Court had held that a local government’s use of federal
Title I funds to provide remedial educational services by public school
teachers in parochial schools violated the First Amendment’s Establishment Clause.5 On remand following Aguilar, the district court enjoined
the Board of Education of the City of New York “from using public funds
for any plan or program under [Title I] to the extent that it requires,
authorizes or permits public school teachers and guidance counselors to
provide teaching and counseling services on the premises of sectarian
schools within New York City.”6
Associate, Grunfeld, Desiderio, Lebowitz & Silverman, LLP, Atlanta, Georgia;
J.D., with distinction, Emory University School of Law, Atlanta, Georgia; B.A.,
cum laude, Middlebury College, Middlebury, Vermont.
1. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 844 (1992)
(O’Connor, J.).
2. 117 S. Ct. 1997 (1997), rev’g, Aguilar v. Felton, 473 U.S. 402 (1985).
3. 473 U.S. 402 (1985).
4. 117 S. Ct. at 2006-17.
5. 473 U.S. at 414.
6. Agostini, 117 S. Ct. at 2005 (quoting Application to Petition for Certiorari at
A25-A26, Aguilar v. Felton, 473 U.S. 402 (1985) (No. 96-533)).
*
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The effect of this injunction, often forcing a seemingly artificial movement of special education programs from parochial school premises to
costly mobile instructional units adjacent to the schools,7 highlights the
rationality of the Court’s decision in Agostini from a policy standpoint.8
Indeed, Aguilar had been condemned as overly rigid and the product of
delusions of a popish plot.9 Surely, critics charged, it is sound policy to
“give economically disadvantaged children a better chance at success in
life,”10 regardless of whether they attend public or parochial schools.
In Agostini, the Court reconsidered the constitutionality of Title I of the
Elementary and Secondary Education Act of 1965,11 which channels federal funds through the states to “local educational agencies” (LEAs).12
LEAs spend the funds to provide remedial education, guidance, and job
counseling to eligible students,13 defined as those: “(i) who reside within
the attendance boundaries of a public school located in a low-income
area;14 and (ii) who are failing, or at risk of failing, the State’s student
performance standards.”15 Title I requires that funds be made available on
an equitable basis to children attending private as well as public schools.16
However, Congress saw fit to place limitations on LEAs provision of
services to children enrolled in private schools. In particular, the Title I
services themselves must be “secular, neutral, and non-ideological,”17 and
according to federal regulations, must “supplement, and in no case supplant, the level of services” already provided by the private school.18
Agostini reaches the Court as an appeal from a denial of petitioners’
Federal Rule of Civil Procedure 60(b)(5) motion for relief from the Agui7. See Linda Greenhouse, Court Eases Curb on Providing Aid in Church
Schools, N.Y. TIMES, June 24, 1997, at A1.
8. See Agostini, 117 S. Ct. at 2013. But see id. at 2022 (Souter, J., dissenting)
(defending the off-premises logic). When Aguilar was handed down, it was estimated that some 20,000 economically disadvantaged children in New York City
alone would experience a decline in Title I services. See Aguilar, 473 U.S. at 431
(O’Connor, J., dissenting).
9. See Bruce Fein, Even Handed Aid Where Needed?, W ASH. TIMES , November
12, 1996, at A20. Indeed, the Agostini decision was praised by many, including
the Clinton Administration and New York City Mayor Rudolph Giuliani, as undoing a wrongheaded case. See Greenhouse, supra note 7, at A1.
10. Agostini, 117 S. Ct. at 2018.
11. 20 U.S.C. §§ 6301-38 (1994).
12. Id. at §§ 6311-12.
13. See id. at § 6315(c)(1)(A)-(H).
14. Id. at § 6313(a)(2)(B).
15. Id. at § 6315(b)(1)(B).
16. See id. at § 6321(a).
17. 20 U.S.C. § 6321(a)(2) (1994).
18. 34 C.F.R. § 200.12(a) (1996).
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lar-based injunction.19 Joined by Chief Justice Rehnquist and Justices
Scalia, Kennedy and Thomas, Justice O’Connor’s majority opinion asserted that because a court may recognize subsequent changes in both
statutory and decisional law, the “threshold issue” in reviewing the denial
of the Rule 60(b)(5) motion in Agostini is “whether the factual or legal
landscape has changed since Aguilar [was decided].”20 Because of the
lack of any factual change, the success of petitioners’ Rule 60(b)(5) motion is predicated on whether the law of the Establishment Clause had
changed since Aguilar, or, in Justice O’Connor’s words, whether subsequent Establishment Clause cases “have so undermined Aguilar that it is
no longer good law.”21
Despite the lower courts’ straightforward denial of the 60(b)(5) motion
because Aguilar had not been overruled, the majority in Agostini concluded that Establishment Clause law had changed since the original decision in Aguilar and its companion case, School District of Grand Rapids v.
Ball. 22 Justice O’Connor’s opinion addressed several assumptions underpinning the reasoning of both Aguilar and Ball, and concluded that none
of them remain valid under the Court’s current understanding of the Establishment Clause.23 The majority opinion relied heavily on its interpretation of two post-Aguilar decisions, Zobrest v. Catalina Foothills School
District24 and Witters v. Washington Department of Services for the
Blind. 25 Based on these interim cases, the Court found that the “understanding of the criteria used to assess whether aid to religion has an impermissible effect” has changed.26
Justice Souter delivered a vigorous dissent defending the constitutional
reasoning of Aguilar and challenging the Court’s interpretations of Zobrest and Witters. Souter assailed the Court’s claims that Zobrest and
Witters effected changes in Establishment Clause law, and specifically
attempted to refute the argument that those cases altered the salience of
the assumptions upon which Aguilar and Ball were based. In short, Souter
emphasized that the Court may disagree with the assumptions and the
holdings of Aguilar and Ball, but that “its disagreement is fresh law.”27
Justice Ginsburg’s separate dissent criticizes the Court’s decision effecAgostini v. Felton, 117 S. Ct. 1997, 2000 (1997).
Id. at 2007.
Id. at 2000.
See id. at 2000-01 (citing School Dist. of Grand Rapids v. Ball, 473 U.S.
373 (1985)).
23. See id. at 2010.
24. 509 U.S. 1 (1993).
25. 474 U.S. 481 (1986).
26. Agostini, 117 S. Ct. at 2010.
27. Id. at 2023 (Souter, J., dissenting).
19.
20.
21.
22.
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tively to reconsider Aguilar under the guise of reviewing a denial of a
Rule 60(b)(5) motion.28 Ginsburg surveyed decisional law on this procedural rule and concluded that such a motion does not present the opportunity for relitigation of the legal or factual claims underlying a prior judgment.29 According to Ginsburg, the sole question presented on an appeal
of a decision to deny a 60(b)(5) motion is whether “the District Court
abuse[d] its discretion when it concluded that neither the facts nor the law
had so changed as to warrant alteration of the injunction.”30 Indeed,
Aguilar, until it was overruled by the decision in Agostini, remained the
governing Establishment Clause law. Therefore, denial of petitioners’
60(b)(5) motion by the lower courts was proper.31 For Ginsburg, the
Court’s acknowledgment that the lower court denials of the motion were
proper, while then proceeding with its own reconsideration of Aguilar,
transformed Rule 60(b)(5) into a license for collateral attack on a previous
decision and undermined the integrity of the Court as a non-agenda setting
body.32
Students of the Establishment Clause will likely be unable to find any
doctrinal clarification in this highly unconventional decision. To the contrary, the case leaves open questions about the continued significance of
the three-part Lemon v. Kurtzman33 test, as well as the future of Justice
O’Connor’s oft-articulated “endorsement test,” which had been picked by
many as the successor-in-waiting to Lemon. 34 Moreover, after analyzing
the procedural method by which Agostini reached the Supreme Court, this
Article will argue that the Court’s paradoxically declaring a change in
Establishment Clause law while simultaneously finding that the law had
already changed for purposes of Rule 60(b)(5) undermines the weight and
integrity of the decision.35 At the least, the Court’s willingness in Agostini
to give capacious readings to its own precedents, while at the same time
claiming that it is simply recognizing changes in Establishment Clause
law that have already occurred, reifies the often whimsical, even capriSee id. at 2026-28.
See id. at 2027 (Ginsburg, J., dissenting) (citing 11 W RIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE § 2863 (2d ed. 1995)).
30. Id. at 2027.
31. See id.
32. See Agostini, 117 S. Ct. at 2028.
33. 403 U.S. 602 (1971).
34. See, e.g., Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions:
Establishment Neutrality and the ‘No Endorsement’ Test, 86 M ICH. L. REV. 266,
267 (1987) (“O’Connor’s ‘no endorsement’ test seems at the moment to be the heir
apparent. By offering her proposal as a ‘clarification’ of the Lemon test,
O’Connor has facilitated a smooth transition to the no endorsement approach.”).
35. See Agostini, 117 S. Ct. at 2027-28 (Ginsburg, J., dissenting).
28.
29.
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cious, nature of establishment jurisprudence.
First, Part II of this Article will place Agostini in the context of the relevant Establishment Clause precedents of the Court.36 Part III will analyze
closely the reasoning of the three opinions generated in the case.37 Part IV
will argue that the decision is jurisprudentially suspect and unlikely to
elucidate further the meaning of the Establishment Clause.38 Finally, this
Article suggests a few legal principles or trends that the case may evince.39
II. THE LAW OF ESTABLISHMENT CLAUSE: FROM AGUILAR TO
AGOSTINI
The main paradigm for Establishment Clause analysis has been Lemon
v. Kurtzman. 40 In that case, Chief Justice Burger synthesized “the cumulative criteria developed by the Court over many years . . . .”41 First, [that
a] statute must have a secular legislative purpose; second, that its principal
or primary effect must be one that neither advances nor inhibits religion;
[and] finally, that the statute does not foster an excessive government entanglement with religion.”42
A. Aguilar
In Aguilar v. Felton, 43 taxpayers challenged the New York City Board
of Education’s use of federal Title I funds to pay the salaries of public
employees teaching secular remedial education classes to needy children
in both private and parochial schools.44 Remedial and enhancement instruction was being provided at public expense to classes comprised of
statutorily eligible parochial school students in their private school buildings.45 Of the students eligible to receive funds in 1981-1982, 13.2% were
enrolled in private schools; of that group, 93% attended religious
schools.46
In Aguilar, it was the individual student focus of the Title I program
that might have weighed against a finding of unconstitutionality, as funds
See infra notes 40-155 and accompanying text.
See infra notes 156-237 and accompanying text.
See infra notes 237-82 and accompanying text.
See infra notes 283-317 and accompanying text.
403 U.S. 602 (1971).
Id. at 612.
Id. (citations omitted).
473 U.S. 402 (1985).
See id. at 404-06; see also supra notes 10-17 and accompanying text (discussing the administration of Title I programs).
45. See id. at 409.
46. See id. at 406.
36.
37.
38.
39.
40.
41.
42.
43.
44.
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were arguably given to eligible students via the LEAs, not directly to any
school, private or public.47 In addition to having strict rules for the participating publicly-employed teachers to avoid contact with the religious
school’s personnel and programs and ban all religious materials from their
classrooms, New York City adopted a system for monitoring the religious
content (or lack thereof) of publicly funded Title I classes held in religious
schools.48 Nevertheless, the Second Circuit in Felton v. Secretary, Department of Education reversed the district court’s decision that the Title I
program was constitutional, holding that the Establishment Clause “constitutes an insurmountable barrier to the use of federal funds to send public school teachers and other professionals into religious schools to carry
on instruction, remedial or otherwise.”49
In 1985, when the Supreme Court decided Aguilar, the Lemon test was
the controlling analytical framework.50 Under the three-part test from
Lemon, 51 failure under any one of the prongs renders consideration of the
others unnecessary.52 The Court in Aguilar rested its decision of unconstitutionality primarily on the excessive entanglement of church and state
created by the monitoring system and did not directly address whether the
program was violative of the Establishment Clause because of its primary
effect.53 The Court articulated the logic inherent in the excessive entanglement prong of Lemon, stating “that neither the State nor Federal Government shall promote or hinder a particular faith or faith generally
47. See supra notes 11-18 and accompanying text; see also Witters v. Wash.
Dept. of Serv’s for the Blind, 474 U.S. 481, 487-88 (1986) (finding that disbursement of aid provided directly to a student who then chose to use the funds for religious education is permissible under the Establishment Clause).
48. See Aguilar, 473 U.S. at 406-07.
49. Felton v. Sec’y, Dept. of Ed., 739 F.2d 48, 49-50 (citing Meek v. Pittenger,
421 U.S. 349, 367-72 (1975)); see also Wolman v. Walter, 433 U.S. 229 (1977).
50. Only after 1985 did the first indications of the Court’s dissatisfaction with
the Lemon test surface and several refinements of the test, as well as alternative
conceptions of the Establishment Clause, begin to appear in the opinions of different Justices. See Daniel O. Conkle, Lemon Lives, 43 CASE W. RES. L. REV. 865,
865-66 (1993); see also discussion infra notes 127-44 and accompanying text (regarding dissatisfaction with the Lemon test).
51. See supra notes 33-35 and accompanying text (discussing the three-part
Lemon inquiry).
52. See Lemon, 403 U.S. at 612-13.
53. See Aguilar, 473 U.S. at 413 (“This pervasive monitoring by public authorities in the sectarian schools infringes precisely those Establishment Clause values
at the root of the prohibition of excessive entanglement.”). Excessive entanglement is, again, the third prong of the test set forth in Lemon: “(i) the statute must
have a secular legislative purpose; (ii) its principal or primary effect must be one
that neither inhibits nor advances religion; and (iii) it must not foster an excessive
government entanglement with religion.” Id.
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through the advancement of benefits or through the excessive entanglement of church and state in the administration of those benefits.”54
However, it is worth noting that before resting its holding strictly on
excessive entanglement, the Court commented on the monitoring system
that appellants had argued immunized their administration of Title I programs. “At best, the supervision in this case would assist in preventing
the Title I program from being used, intentionally or unwittingly, to inculcate the religious beliefs of the surrounding parochial school.”55 This
analysis by the Court in Aguilar suggests that, aside from the entanglement problem, the Court could have found the program at issue in Aguilar
to have the primary effect of advancing or inhibiting religion, thus violating the second prong of Lemon and being equally constitutionally impermissible. More broadly, this suggests that the Establishment Clause prevents more than simply the intentional or obvious confluence of church
and state. Indeed, much of the Court’s case law has recognized the preventive role of the establishment guarantee and the circumspection that is
warranted.56
B. Ball
In School District of Grand Rapids v. Ball,57 the companion case to
Aguilar, the School District of Grand Rapids was challenged for hiring
public school teachers to teach remedial subjects in a special Shared Time
Program offered in non-public schools.58 Simultaneously challenged was
a similarly administered program called Community Education, through
which various courses were offered to all members of the community and
taught at non-public schools, mostly by sectarian school teachers hired by
the Board of Education.59 While the programs took place on the premises
of the private schools, unlike in Aguilar, the school district in Ball set up a
leasing system whereby the private school classrooms used for the programs were “leased” from the private schools by the district.60 However,
the Court discounted any mitigating effect of this arrangement.61 Overall,
forty of the forty-one schools at which the programs challenged in Ball
operated were sectarian in character, an even greater proportion of paroId. at 414.
Id. at 409.
See infra notes 64-81 and accompanying text (including quotations from
Lemon, Meek, and Bowen).
57. 473 U.S. 373 (1985).
58. See id. at 375-76.
59. See id. at 375-77.
60. See id. at 377-78.
61. See id.
54.
55.
56.
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chial school involvement than in Aguilar. 62
Unlike its handling of Aguilar, in Ball the Court fully applied the effects
prong of the Lemon test and expressly affirmed the salience of the threepart test noting that, “[w]e therefore reaffirm that state action alleged to
violate the Establishment Clause should be measured against the Lemon
criteria.”63 However, the reasoning of Justice Brennan’s majority opinion
did not rest solely on a straightforward application of Lemon. First, discussing one of the long competing principles of the Establishment Clause,
the no-funding principle, Brennan wrote early in his analysis of Ball that,
“[t]he Establishment Clause primarily proscribes ‘sponsorship, financial
support, and active involvement of the sovereign in religious activity.’”64
Another element present in the Ball analysis is the Court’s focus on the
nature of the religious schools in which the programs were operating.
Based on the findings of the district court, the Court in Ball concluded that
at these religious schools, “the secular education . . . goes hand in hand
with the religious mission that is the only reason for the schools’ existence. Within the institution, the two are intertwined.”65
In its application of Lemon, the Court summarily concluded that the
programs passed the first prong of the test.66 The purpose of the programs
was “manifestly secular.”67 Thus, the question presented was whether the
primary effect of the challenged programs was to advance or inhibit religion.68 Given the “pervasively sectarian” nature of the schools where the
programs were operating,69 the Court concluded that the challenged programs may have impermissibly advanced religion in three ways: (i) the
participating teachers may inculcate particular religious beliefs; (ii) the
programs may provide a symbolic link between government and religion,
especially in the eyes of impressionable youngsters; and (iii) the programs
may directly promote religion by impermissibly providing a subsidy to the
primary religious mission of the institutions affected.70 The Court assessed each of these potential constitutional infirmities and concluded that
See id. at 379.
School Dist. of Grand Rapids v. Ball, 473 U.S. 383 (1985).
See id. at 381 (citing Comm. for Pub. Educ. & Religious Liberty v. Nyquist,
413 U.S. 756, 772 (1973); see also Zorach v. Clauson, 343 U.S. 306, 314 (1952)
(“Government may not finance religious groups nor undertake religious instruction
nor blend secular and sectarian education . . . .”). But see Rosenberger v. University, 515 U.S. 819, 843 (1995).
65. Ball, 473 U.S. at 383 (quoting Lemon, 403 U.S. at 657).
66. Id. at 383.
67. See id.
68. See id.
69. Id. at 385.
70. Id.
62.
63.
64.
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there is at least a risk of all three problems, thus rendering the programs
unconstitutional.71
In the Court’s discussion of the potential inculcation of religious beliefs
by teachers, the prophylactic nature of the Establishment Clause mandate
is illustrated. Declaring one of the absolutes of the Establishment Clause
to be the prohibition on “government-financed or government-sponsored
indoctrination into the beliefs of a particular religious faith,”72 the Court
cited Lemon’s admonition that “[t]he State must be certain . . . that subsidized teachers do not inculcate religion.”73 Similarly, the Court refers to
Meek v. Pittenger,74 where it was held that a program of loaning state-paid
instructors to sectarian schools was impermissible.75 As the Court in Ball
made clear, the holding in Meek was not because the publicly employed
teachers were inculcating religious beliefs, but because they potentially
could, and this constituted “an unacceptable risk.”76
When applying these rationales to the programs under challenge in Ball,
the Court simply found that, despite a presumption of good faith on the
part of the publicly employed teachers in both programs, “there is a substantial risk that programs operating in this environment [of sectarian
schools] would be used for religious educational purposes.”77 However,
the Court failed to articulate any powerful reasoning for the acceptance of
this risk-averse rationale as applied to the Shared Time Program. While
the Community Education Program under challenge employed mostly
professional religious school teachers with whom the risk of inadvertent
inculcation during the teaching of secular subjects seemed legitimate, with
the Shared Time Program teachers, usually teaching in public schools but
enlisted to teach remedial subjects to parochial school students, the risk, if
any, seemed far from “substantial.”78 Regardless of whether the Court’s
circumspection appropriately rose to this level, because the inculcation
problem was simply one of the ways that the challenged programs may
have impermissibly advanced religion, the failure to solidify the basis for
finding a risk of inculcation in the Shared Time Program would not alone
Ball, 473 U.S. at 387, 392, 396.
Id. at 385.
Id. (quoting Lemon, 403 U.S. at 619) (emphasis added).
421 U.S. 349 (1975).
Ball, 473 U.S. at 384-85 (quoting Meek, 421 U.S. at 370).
Id.
Id. at 388.
See id. at 398-400 (O’Connor, J., concurring in the judgment in part and
dissenting in part) (agreeing that the Community Education Program is unconstitutional but arguing that the Shared Time Program is not because there is no reason to believe that public school teachers coming into parochial schools will violate orders and inculcate religion).
71.
72.
73.
74.
75.
76.
77.
78.
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have allowed the program to overcome the constraints of the Establishment Clause.
Like the concern over the risk of inculcation, the Court’s analysis of the
potential symbolic union of church and state created by the programs reflected a degree of circumspection.79 The symbolic union inquiry is necessarily focused on the potentially harmful effect of appearances. As the
Court in Ball notes:
Government promotes religion as effectively when it fosters a close identification of its powers and responsibilities with those of any—or all—religious
denominations as when it attempts to inculcate specific religious doctrines.
If this identification conveys a message of government endorsement or disapproval of religion, a core purpose of the Establishment Clause is
80
violated.
As the Court reasoned, the scrutiny applied to a union when assessing its
symbolic impact is logically heightened when the symbolic union will
directly reach children of tender years.81 By its very nature, the symbolic
union query has the potential to render seemingly inane distinctions in the
administration of a government program constitutionally dispositive.
Indeed, the Court in Ball recognized this when it compared McCollum
v. Board of Education, 82 (which held religious instructors coming onto
public school premises unconstitutional) to Zorach v. Clauson83 (which
held a similar religious instruction program conducted off the premises of
public schools constitutional). “The difference in the symbolic impact
helps to explain the difference between the cases.”84 Applying these concerns over symbolism to both of the programs under challenge in Ball, the
Court concluded that because the classes take place in parochial school
buildings, “the students would be unlikely to discern the crucial difference
between the religious school classes and the ‘public school’ classes, even
if the latter were successfully kept free of religious indoctrination.”85
79. See generally Bowen v. Kendrick, 487 U.S. 589, 648 (1988) (Blackmun, J.,
dissenting) (“[The Establishment Clause] calls for fundamentally conservative
decisionmaking: our cases do not require a plaintiff to demonstrate that a government action necessarily promotes religion, but simply that it creates such a substantial risk.”) (emphasis in original).
80. Ball, 473 U.S. at 389. See also Lynch v. Donnelly, 465 U.S. 668, 688 (1984)
(O’Connor, J., concurring). (“Endorsement sends a message to nonadherents that
they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political
community.”).
81. Ball, 473 U.S. at 390.
82. 333 U.S. 203 (1948).
83. 343 U.S. 306 (1952).
84. Ball, 473 U.S. at 391.
85. Id.
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Thus the young students would witness “a powerful symbol of state endorsement and encouragement of the religious beliefs” that are taught in
the same classroom at other times.86 Accordingly, the programs were
deemed to have an unconstitutional effect.87
The final way in which the challenged programs in Ball may have had
the impermissible effect of advancing religion could have been the easiest
to ascertain. However, while it is unconstitutional for a government program effectively to provide a subsidy to the religious mission of sectarian
schools, “[t]he Court has never accepted the mere possibility of subsidization . . . as sufficient to invalidate an aid program.”88 With this problem,
the Court is not concerned with risk, as it is with the inculcation pitfall, or
with the amorphous effect of symbolism. As the Court in Ball made clear,
if the effect of the proffered aid is direct and substantial it is impermissible, whereas if the effect is “indirect and incidental” the program will pass
constitutional muster.89
After reiterating its recognition of the dual function of sectarian schools
to provide secular education while promoting a religious perspective,90 the
Court reasoned that the programs challenged in Ball were the “kind of
direct aid to the educational function of the religious school [that] is indistinguishable from the provision of a direct cash subsidy to the religious
school that is most clearly prohibited under the Establishment Clause.”91
The Court rejected the argument that the challenged aid was provided directly to the students rather than to the religious schools,92 concluding that
where “no meaningful distinction can be made between aid to the student
and aid to the school,” the concept of aid “to individuals is a transparent
Id. at 392.
See id.
Id. at 394.
Ball, 473 U.S. at 394. Cf. Bd. of Ed. v. Allen, 392 U.S. 236 (1968) (upholding program providing loans of secular textbooks to nonpublic school students)
with Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 780-94
(1973) (striking down state tax schemes providing for tuition grants and tax benefits for parents whose children attend religious schools).
90. Ball, 473 U.S. at 395. See also supra notes 58-62 and accompanying text
(discussing the importance of the secular nature of the schools where the programs
operated).
91. Ball, 473 U.S. at 395. For another formulation of the direct/indirect inquiry,
see Wolman v. Walter, 433 U.S. 229, 259 (1977) (Marshall, J., concurring in part
and dissenting in part) (arguing that a “line . . . should be placed between [acceptable] general welfare programs that serve children in sectarian schools because the
schools happen to be a convenient place to reach the programs’ target populations
and [unacceptable] programs of educational assistance.”). See also Allen, 392 U.S.
236, 252-54 (1968) (Black, J., dissenting) (arguing for the same type of distinction
between direct and indirect aid as Justice Marshall in Wolman).
92. See Ball, 473 U.S. at 396.
86.
87.
88.
89.
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fiction.”93
Finally, the Court rejected the petitioners’ argument that the subsidy
provided by these programs could not be substantial because the courses
offered were supplemental, “not previously offered in the schools . . . and
not required by school rule or state regulation.”94 The Court reasoned that
“there . . . [was] no way of knowing whether the religious schools . . .
[may] have offered” these types of courses in the absence of the programs,
and then commented that the general subject matter of these supplemental
subjects was indeed similar to that offered in the religious schools.95
Moreover, according to the Court, “[t]o let the genie out of the bottle in
this case would be to permit ever larger segments of the religious school
curriculum to be turned over to the public school system . . . .”96
Therefore, by concluding that the challenged programs had the primary effect of advancing religion in three different ways, the Court held
both of them violative of the Establishment Clause.97 Adhering to the
Lemon test and giving a lengthy second prong effects analysis upon which
the decision could rest, the Court found it unnecessary to engage in the
third prong of the Lemon inquiry—whether the programs impermissibly
entangled religion and government.98
C. Witters
Decided the term after Aguilar and Ball, Witters v. Wash. Dept. of
Serv’s. for the Blind99 addressed the challenge of a blind man who had
applied for and been denied, because of state interpretation of Establishment Clause requirements, special educational assistance under a Washington statute that authorized financial aid for qualified blind persons
seeking to further themselves educationally.100 The Court, applying the
three-part Lemon test, held that the Establishment Clause was not a bar to
the state issuing a tuition grant to petitioner who planned to use the money
to attend a Christian college.101 As in Ball, there was no dispute over the
Id. at 396 (citing Wolman v. Walter, 433 U.S. at 264).
Id.
Id.
Id. at 397.
See id.
See Ball, 473 U.S. at 397 n.14; but see Aguilar v. Felton, 473 U.S. 402
(1985).
99. 474 U.S. 481 (1986).
100. See id. at 483-84.
101. See id. at 484-85. Interestingly, the Court declined to address petitioner’s
argument that the Free Exercise Clause would bar a more stringent interpretation
of the Washington State Establishment Clause forbidding petitioner's receipt of
aid. See id. at 489-90.
93.
94.
95.
96.
97.
98.
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secular purpose of the aid statute, and the Court focused on the second
prong of Lemon—whether the primary effect of the provision of financial
aid to petitioner was to advance religion.
Witters addressed arguments similar to those presented in Aguilar and
Ball. Specifically, the Court’s analysis of the effect inquiry was similar to
that in Ball because it framed the question as whether the aid to petitioner
would be a permissible indirect transfer to a religious institution, or an
impermissible direct subsidy.102 Justice Marshall, writing for the majority,
emphasized that the tuition money was paid directly to the student and
only flowed to religious institutions by virtue of the independent choices
of aid recipients.103 Moreover, the Court reasoned that there was nothing
to indicate that any significant portion of the aid expended by the state, as
a whole, would flow to religious institutions.104 The Court further concluded that the petitioner’s use of neutrally available state aid to help pay
for his religious education did not confer any message of state endorsement of religion, thus there was no symbolic union with the potential to
have the impermissible effect of advancing religion.105
D. Bowen
The Court applied the same accommodating approach of Witters in Bowen v. Kendrick106 the following term. In Bowen, the Court considered a
challenge to a federal grant program that provided funding to public or
non-profit private organizations, including religious organizations, for
services relating to adolescent sexuality and pregnancy.107 In the statute,
Congress specifically recognized the benefits of having such services provided by religious and charitable organizations, among others.108 The
District Court held that the program was unconstitutional both on its face
and as applied because it had the impermissible effect, under Lemon, of
advancing religion.109
First, the Court once again affirmed the Lemon test as the proper
framework in which to assess the constitutionality of the program.110 As
with Aguilar, Ball, and Witters, the Court concluded easily that the first
prong of Lemon was satisfied.111 In assessing the issue of whether the Act
102.
103.
104.
105.
106.
107.
108.
109.
110.
111.
See id. at 487.
See id.
See id. at 488.
See Witters, 474 U.S. at 489.
487 U.S. 589 (1988).
See id. at 593.
See id. at 595; see also 42 U.S.C. § 300z(a)(8)(B) (1982).
See Bowen, 487 U.S. at 598-600.
See id. at 602.
See id. at 602-04.
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had the primary effect of advancing religion, the Court put forth two reasons why the statute on its face could be deemed to have such an impermissible effect: (i) because the statute expressly enlists the involvement
of religious organizations in a federal program, it endorses religious solutions to the problems addressed by the Act or creates a symbolic union
between church and state; or (ii) because it authorizes direct federal funding of religious organizations and the Act’s purpose may coincide with a
religious grantee’s purpose, the Act results in an impermissible inculcation
of religious beliefs.112
As to the first argument against the Act, the Court reasoned that nothing
prevents Congress from making considered judgments about the role religious organizations may play in solving certain secular problems.113 The
Court referred to congressional findings that supported such a judgment
and concluded that, at most, this congressional recognition would only
incidentally and remotely advance religion.114 The Court rejected the argument that this scheme creates an impermissible symbolic link between
government and religion by reasoning that the consequence of such a
holding would be to forbid any government aid program that provides
funding to religious organizations in areas in which the religious organizations and government have congruent interests.115
As for the second argument against the program, because it is premised
on the notion that public funding of religious organizations leads to inculcation of belief and advances religion, the Court addressed many of the
same issues as Ball and Witters. First, the Court emphasized the neutral
nature of the funding scheme and reasoned that when aid is made available neutrally and generally in a public funding scheme, religious institutions are not prohibited from participating.116 The Court then qualified
this pronouncement by reasoning that even neutral programs may have the
primary effect of advancing religion if, for example, aid is given to a
“pervasively sectarian” institution and may advance the institution’s “religious mission.”117 The Court discussed the emphasis in Ball given to the
nature of the institutions receiving aid in that case,118 but distinguished
See id. at 605-06.
See id. at 606.
See id. at 607.
See Bowen, 487 U.S. at 613-14.
See id. at 608-09 (citing Bradfield v. Roberts, 175 U.S. 291 (1899)).
Id. at 609-10. But see id. at 630-31 (Blackmun, J., dissenting) (assailing the
“misplaced focus” on the pervasively sectarian nature of institutions receiving
aid).
118. See Bowen v. Kendrick, 487 U.S. 589, 610 (1987); see also supra notes 6065 and accompanying text (discussing the importance of the sectarian nature of the
involved institution).
112.
113.
114.
115.
116.
117.
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Ball because the aid program in Bowen was not directed to pervasively
sectarian institutions. The Court reasoned that the challenged aid scheme
was permissible on its face because, “of the eligible religious institutions,
many will not deserve the label ‘pervasively sectarian.’”119
The Court also rejected the argument that the challenged grant program
will have the primary effect of advancing religion because religiously affiliated grantees counseling adolescents presents the risk of inculcation of
religious beliefs.120 While the Court accepted the logic of Ball—that programs entailing an unacceptable risk of inculcation by the grantee institution must be struck down—it then reasoned that no presumption against
the religious institutions receiving aid while carrying out their functions
under the Act in a secular manner is warranted.121 Thus, if a nonpervasively sectarian institution is the grantee, it is entitled to a presumption by the Court that it will handle the funds in accordance with the
secular directives of the funding agency.122
After concluding that the Act met the primary effects prong of Lemon,
the Court turned to the entanglement inquiry; however, not without severely criticizing this third prong.123 The Court recognized the “catch-22”
that is often presented by Lemon and is illustrated by Aguilar. That is,
state supervision of aid to ensure it is used in a way that comports with the
Establishment Clause can itself render a program constitutionally invalid
because it fosters excessive entanglement between church and state. “For
this and other reasons, the entanglement prong of the Lemon test has been
criticized over the years.”124 Despite its obvious dissatisfaction with this
third prong, if not the entire Lemon test, the Court again hinged its conclusion on the fact that because the grantee institutions were not pervasively
sectarian, the less intensive monitoring that was necessary would not
“cause the government to intrude unduly in the day-to-day operations of
the religiously affiliated AFLA grantees.”125 Therefore, the federal grant
program was held not to violate the Establishment Clause.126
E. The Lemon Debate
The frustration with the Lemon test articulated by the Court in Bowen
119. Id. at 610. But see id. at 631 (Blackmun, J., dissenting) (“The majority first
skews the Establishment Clause analysis by adopting a cramped view of what
constitutes a pervasively sectarian institution.”).
120. See id. at 611.
121. See id. at 612.
122. See id.
123. See id. at 615-16.
124. Bowen v. Kendrick, 487 U.S. 589, 616 (1987).
125. Id. at 616.
126. See id. at 618.
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has resonated through other cases, especially in the form of criticism of
the entanglement prong. Even in Lemon itself, Justice White, in concurrence, criticized the “catch-22” created by the entanglement inquiry.127
Another example is Justice O’Connor’s dissent in Aguilar, where she
wrote, “I question the utility of entanglement as a separate Establishment
Clause standard. . . . To a great extent, the anomalous results in our Establishment Clause cases are ‘attributable to [the] entanglement prong.’”128
However, criticisms and attempts to refine the Lemon test have not been
limited solely to the third prong.129 Justice O’Connor has argued for clarification of the Lemon test by focusing the analysis on “endorsement or
disapproval of religion.”130 Under her reformulation, “the proper inquiry
under the purpose prong of Lemon would be whether government intends
to convey a message of endorsement or disapproval of religion.”131 As for
the effects prong, O’Connor argues that the actual effect of a government
practice is unimportant, rather what is dispositive is whether the practice
has the effect of communicating a message of government “endorsement
or disapproval of religion.”132 This conception of the Establishment
Clause has been invoked approvingly by a majority opinion invalidating a
Louisiana statute requiring balanced treatment of evolution and creationism in public schools,133 and countenanced by the Court in a case involving a public display of a creche.134 However, it has not been immune to
vociferous criticism.135
Justice Kennedy has assailed the endorsement test and criticized the
primary effects prong of Lemon from which it is derived, as reflecting “an
unjustified hostility toward religion.”136 To be sure, Justice Kennedy does
not demean Lemon without suggesting his own framework for analysis.
Kennedy interprets the Establishment Clause as forbidding government
127. See Lemon, 403 U.S. at 668 (White, J., concurring); see also Wallace v.
Jaffree, 472 U.S. 38, 108 (Rehnquist, J., dissenting) (referring to the “insolvable
paradox” created by the entanglement prong).
128. Aguilar v. Felton, 473 U.S. 402, 430 (O’Connor, J., dissenting) (quoting
Jesse Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. PITT. L. REV. 673, 681 (1980)).
129. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636-40 (1987) (Scalia, J.,
dissenting) (advocating elimination of the secular purpose prong of the Lemon
test).
130. Lynch v. Donnelly, 465 U.S. 668, 689 (1984).
131. Id. at 691 (emphasis added).
132. Id. at 692 (emphasis added).
133. See Edwards v. Aguillard, 482 U.S. 578 (1987).
134. See Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989).
135. See, e.g., Smith, supra note 34; Mark Tushnet, The Constitution of Religion,
18 C ONN. L. REV. 701, 711-12 (1986).
136. Allegheny, 492 U.S. at 655 (Kennedy, J., dissenting).
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coercion of anyone to support or participate in religion or its exercise.137
Justice Souter has fundamentally disagreed with Justice Kennedy’s theory
and has advanced a view of the Establishment Clause that he believes embraces the meaning of the second prong of Lemon which “compels the
state to pursue a course of neutrality toward religion,138 favoring neither
one religion over others nor religious adherents collectively over nonadherents.”139
Overall, dissatisfaction with Lemon has resulted in multiple approaches
being advanced by different Justices, as well as a plethora of scholarly
criticism and proposals for refinement of Establishment Clause jurisprudence.140 Indeed, to reach desired results, the Court has been able to manipulate the words of the test to the point where they have lost whatever
definitive meaning they once held.141 However, the famous three-prong
test, formally at least, remains law.142 Assessing the effects of the Lemon
test, Justice Rehnquist once wrote,
The three-part test has simply not provided adequate standards for deciding
Establishment Clause cases . . . . Even worse, the Lemon test has caused this
See id. at 660; see also Lee v. Weisman, 505 U.S. 577, 587 (1992).
Comm. for Pub. Ed. & Religious Liberty v. Nyquist, 413 U.S. 756, 792-93
(1973).
139. See Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S.
687, 696 (1994) (Souter, J., concurring) (citing Epperson v. Arkansas, 393 U.S.
97, 104 (1968)).
140. See, e.g., Michael Stokes Paulsen, Lemon is Dead, 43 C ASE W. R ES. L. REV.
795, 800-01 (1993) (advocating adoption of Justice Kennedy’s coercion test, and
arguing: “Each of Lemon’s three ‘prongs’ for evaluating the constitutionality of
government action challenged under the Establishment Clause . . . had some major
analytical flaw or ambiguity. . . . The ambiguity of the test left the Court leeway to
interpret each prong in varying ways, producing a bewildering patchwork of decisions as the justices engaged in a tug-of-war over the interpretation of the test.”).
141. See id.; see also, e.g., Lynch v. Donnelly, 465 U.S. 668 (1984) (weakly enforcing the Lemon test to uphold a government sponsored creche); see also Philip
Kurland, The Religion Clauses and the Burger Court, 34 C ATH. U. L. REV. 1, 1213 (1984) (criticizing Lynch as “disingenuous” and “sleazy”). One commentator
has blamed the uncertain nature of the primary effects prong of Lemon for the
disparate treatment of indirect and direct aid to religious schools, calling primary
effect more of a label than a framework for analysis. Thomas C. Berg, Religion
Clause Anti-Theories, 72 NOTRE DAME L. REV. 693, 696 n.15 (1997).
142. Interestingly, during his last term on the bench, Justice Blackmun wrote a
concurrence in which he advocated adherence to the principles of Lemon despite
rumblings on the Court over adopting a new analytical framework for the Establishment Clause. See Board of Ed. of Kiryas Joel Village School Dist. v. Grumet,
512 U.S. 687, 710 (1994) (Blackmun, J., concurring) (“I write separately only to
note my disagreement with any suggestion that today’s decision signals a departure from the principles described in Lemon . . . I remain convinced of the general
validity of the basic principles stated in Lemon . . . ”).
137.
138.
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Court to fracture into unworkable plurality opinions . . . . The results of our
school services cases show the difficulty we have encountered in making the
143
Lemon test yield principled results.
Given these clear misgivings about the utility of Lemon, it is no surprise
that when authoring the Court’s opinion in Zobrest v. Catalina Foothills
School Dist.,144 the Chief Justice avoided expressly using the three prong
framework.
F. Zobrest
In Zobrest, a deaf petitioner appealed a Ninth Circuit decision which
held that the provision under a federal act of a sign language interpreter to
aid him at his Catholic school would violate the Establishment Clause.145
The circuit court, basing its decision on the effects prong of Lemon and
the reasoning of Ball, concluded that placement of a government employee in a sectarian school would create an impermissible symbolic union between government and religion.146 After overcoming the objection
of four dissenting Justices that, prudentially, the Court should not pass on
the constitutionality of an Act of Congress if a construction of the Act is
possible by which the constitutional question can be avoided,147 the Court
assessed the merits of petitioner’s Establishment Clause claim.148
Relying on Witters and Bowen, the Court in Zobrest began with the
premise that “government programs that neutrally provide benefits to a
broad class of citizens defined without reference to religion are not readily
subject to an Establishment Clause challenge just because sectarian institutions may receive an attenuated financial benefit.”149 Therefore, because
any aid flowing to petitioner’s sectarian school under the statute did so as
a result of a private decision by a beneficiary of a federal entitlement, the
Establishment Clause was not violated.150 The Court further reasoned that
if an interpreter were provided to petitioner under the Act, his sectarian
school would only receive the indirect economic benefit of petitioner’s
Wallace v. Jaffree, 472 U.S. 38, 110 (1984) (Rehnquist, J., dissenting).
509 U.S. 1 (1993).
See id. at 3.
See id. at 5.
See id. at 14 (Blackmun, J., dissenting, joined by Justices Souter, Stevens,
and O’Connor) (disagreeing with the Court’s decision to reach the constitutional
question).
148. See id. at 8. Notably, Petitioner not only challenged the circuit court’s interpretation of the Establishment Clause, he asserted that the Free Exercise Clause
required provision of an interpreter under the Act. See id. at 4.
149. Id.
150. See Zobrest, 509 U.S. at 10; see also Witters v. Wash. Dep’t. of Serv’s for
the Blind, 474 U.S. 481, 487 (1985).
143.
144.
145.
146.
147.
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tuition, and even this proposition required the assumption that, without the
interpreter, petitioner would have gone to school elsewhere and the school
would have been unable to fill his spot.151
Respondent argued that the Ball prohibition against government provision of educational services on the premises of sectarian schools applied
with equal force to the provision of a single interpreter to petitioner.152
However, the Court rejected this argument by explaining Ball and distinguishing it from Zobrest. First, the Court announced that in Ball, the
challenged programs “in effect subsidized the religious functions of the
parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects.”153 The Court, perhaps subtly addressing the concerns of inculcation and symbolic union, further asserted that
“the task of a sign language interpreter seems to us quite different than
that of a teacher or guidance counselor [which were being provided in Ball
and Aguilar] . . . . [T]he Establishment Clause lays down no absolute bar
to the placing of a public employee in a sectarian school.”154 Accordingly,
the Constitution did not prohibit petitioner from having a sign language
interpreter provided for by federal law aid him at his sectarian school.155
III. INTERPRETATION OF P RECEDENT: CREATIVE CONSISTENCY
IN AGOSTINI
These are the precedents and principles which the Supreme Court confronted in Agostini, a case involving a federally funded program of remedial instruction provided to eligible children on a neutral basis by publicly
employed teachers on the premises of schools, including sectarian ones.
In Agostini, the Court, while overruling one of those precedents, Aguilar,
does not claim to evaluate and then choose among the various, sometimes
competing, approaches to the Establishment Clause. Rather, because the
case reached the Court as a review of the lower courts’ denials of petitioner’s Rule 60(b)(5) motion, the decision in Agostini is framed as a
straightforward application of one line of precedents that is announced to
have overruled Aguilar.
Petitioners in Agostini sought relief from the Aguilar-based injunction
under Federal Rule of Civil Procedure 60(b)(5) which states:
On motion and upon such terms as are just, the court may relieve a party . . .
Id. at 10-11 (1993).
See id. at 11.
Id. at 12 (quoting School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 397
(1985)).
154. Id. at 13 (emphasis added).
155. See id. at 14.
151.
152.
153.
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from a final judgment [or] order . . . [when] the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that the judgment
156
should have prospective application.
This standard has been interpreted to mean that a grant of Rule 60(b)(5)
relief is appropriate when the party seeking relief can show a “significant
change either in factual conditions or the law.”157 The district court and
the court of appeals both denied the petitioners relief from the Aguilarbased injunction because, although “there may be good reason to conclude
that Aguilar’s demise is imminent, [it has] not yet occurred.”158 In short,
those courts reasoned that because a grant of relief is conditioned on a
significant change in law, and because the law [Aguilar] which led to the
injunction remained intact, relief under Rule 60(b)(5) would be
improper.159
Interestingly, the Court’s quotation of Rule 60(b)(5) omits the reference
to the reversal or vacation of the prior judgment.160 Instead, Justice
O’Connor’s majority opinion elaborated on the standard for relief under
Rule 60(b)(5), accepting the need for a showing of a significant change in
fact or law.161 Justice O’Connor then asserted the simple premise that “a
court may recognize subsequent changes in either statutory or decisional
law.”162 Therefore, the Court presented the “threshold issue” in reviewing
the denial of the Rule 60(b)(5) motion in Agostini as “whether the factual
or legal landscape has changed since Aguilar was decided.”163
First, the Court rejected petitioners’ arguments that the costs of complying with the injunction constituted a significant factual change.164 The
argument that the statements of five Justices in another case calling for the
overruling of Aguilar165 constituted a change in Establishment Clause law
FED. R. C IV. P. 60(b)(5).
Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384 (1992).
Agostini, 117 S. Ct. at 2006 (citations omitted).
See id.
See id.
See id. (citations omitted).
Id. (citing Railway Employees v. Wright, 364 U.S. 642, 652-53 (1961)).
Id. at 2007.
Agostini, 117 S. Ct. at 2006 (“petitioners have failed to establish the significant change in factual conditions required by Rufo.”).
165. See Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S.
687, 718 (1994) (O’Connor, J., concurring in part and concurring in the judgment);
id. at 731 (Kennedy, J., concurring in the judgment); id. at 750 (Scalia, J., dissenting, joined by Thomas, J., and Rehnquist, C.J.). See generally Basilios E.
Tsingos, Forbidden Favoritism in the Government Accommodation of Religion:
Grumet and the Case for Overturning Aguilar, 18 HARV. J.L. & PUB . POL’Y 867,
868 (1994).
156.
157.
158.
159.
160.
161.
162.
163.
164.
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was also dismissed.166 Thus, O’Connor hinges the success of petitioners’
Rule 60(b)(5) motion on whether the law of the Establishment Clause had
changed since Aguilar, or, in O’Connor’s words, whether subsequent Establishment Clause cases “have so undermined Aguilar that it is no longer
good law.”167 Ultimately, the Court expressly overruled Aguilar because
it concluded that assumptions upon which Aguilar and Ball were based
have been undermined.168 In essence, although Aguilar was based primarily on the entanglement prong of Lemon, 169 the Court found that the
“understanding of the criteria used to assess whether aid to religion has an
impermissible effect” had changed.170
In analyzing the holdings of Aguilar and Ball, 171 Justice O’Connor
reduced these decisions to resting on four, what she called,
“assumptions.”172 Three of these are from Ball, and thus related to the
effects prong of Lemon, while the last, from Aguilar, stems from the entanglement inquiry. In Justice O’Connor’s rendering, the four assumptions upon which Aguilar and Ball together relied are: (i) any public employee who works on the premises of a religious school is presumed to
inculcate religion in her work; (ii) the presence of public employees on
private school premises creates a symbolic union between church and
state; (iii) any and all public aid that directly aids the educational function
166. Agostini, 117 S. Ct. at 2007 (“But the question of Aguilar’s propriety was
not before us. The views of five Justices that the case should be reconsidered or
overruled cannot be said to have effected a change in Establishment Clause law.”).
167. Id.
168. Id.
169. See supra notes 53-56 and accompanying text.
170. Agostini, 117 S. Ct. at 2010.
171. See id. at 2008.
172. Id. at 2010; but see supra notes 64-65 and accompanying text (discussing
other rationales expressly mentioned by the Court in Ball). It is worth noting that,
contrary to the impression left by Agostini, these, in Agostini language, “assumptions” did not collectively form the basis of the decision in Ball. Rather, in Ball, if
any of the three “assumptions” were accepted, the challenged programs would be
deemed to have an impermissible effect on religion. The Court in Ball accepted all
three “assumptions” en route to finding an impermissible effect; however, rejection of one or even two of these propositions would not render the decision flawed.
See Ball, 473 U.S. at 385. The first premise in Ball, that publicly-employed teachers participating in the remedial program at a parochial school may inculcate particular religious beliefs was perhaps wrongly influenced by the Court’s consideration of two different programs, one of which employed mostly parochial school
teachers to teach secular remedial subjects. See supra notes 77-78 and accompanying text (discussing the distinction between the two programs that may have
been overlooked by the majority in Ball). Indeed, application of this conclusion as
to a program whereby public school teachers are employed to teach secular subjects to parochial school students is convincingly assailed by the Court in Agostini.
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of religious schools impermissibly subsidizes religious indoctrination; and
(iv) that because of (i) above, the Title I program necessitated preventive
monitoring which itself was an impermissible government entanglement
with religion.173
The Court provided an analysis of the Ball opinion to support its distillation of the above-listed dispositive “assumptions” made in the case.174
Justice O’Connor’s summary account of the Ball opinion neglects some of
the factors involved in the reasoning of that case, notably, Justice Brennan’s emphasis on the pervasively sectarian nature of the parochial
schools involved in the program challenged in Ball. 175 The Court, however, correctly focused on the critical analysis in Ball of whether the Title
I program had the primary or principal effect of advancing or inhibiting
religion. Accordingly, Agostini undertakes to address the continuing salience of these four dispositive assumptions.
A. Inculcation
In Agostini, the Court reasoned that the Court in Zobrest properly refused to presume that a publicly employed interpreter would inculcate any
religious beliefs absent evidence to the contrary.176 Zobrest “expressly
rejected the notion . . . that, solely because of her presence on private
school property, a public employee will be presumed to inculcate religion
in the students.”177
This is a most expansive reading of Zobrest, in which the issue was
whether placement of a publicly employed sign-language interpreter in a
parochial school classroom would have an unconstitutional effect.178 Justice O’Connor disregarded Chief Justice Rehnquist’s express distinction in
Zobrest between interpreters and teachers. She further dismissed Justice
Souter’s outcries in his dissent in Agostini over this “mistaken reading.”179
Instead, she concluded for the Court that “there is no genuine basis upon
which to confine Zobrest’s underlying rationale—that public employees
will not be presumed to inculcate religion—to sign-language
Agostini, 117 S. Ct. at 2010.
Id. at 2008-10.
Compare Ball, 473 U.S. at 384, with Lemon, 473 U.S. at 657.
See Agostini, 117 S. Ct. at 2010-11.
Id. at 2011.
See Zobrest, 509 U.S. at 13 (“[T]he task of a sign-language interpreter seems
to us quite different from that of a teacher or guidance counselor . . . ethical
guidelines require interpreters to ‘transmit everything that is said in exactly the
same way it was intended.’”); see also supra note 154 and accompanying text.
179. Compare Agostini, 117 S. Ct. at 2011 with Agostini, 117 S. Ct. at 2022
(Souter, J., dissenting).
173.
174.
175.
176.
177.
178.
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interpreters.”180 According to the Court, Zobrest made “fresh law” that
removed the presumption of inculcation of religion by public
employees.181
B. Symbolic Union
Agostini also concluded that the impermissible symbolic union assumption from Ball had been undermined. This conclusion also depended on
the Court’s inventive interpretation of Zobrest. “Zobrest also implicitly
repudiated . . . [the assumption] . . . that the presence of a public employee
on private school property creates an impermissible symbolic link between
government and religion,”182 Justice O’Connor wrote. In an apparent attempt to support this reasoning, she then went on to challenge Justice
Souter’s opposing view that Title I services must be provided to sectarian
school students in off-campus locations because placing public school
teachers in parochial schools generally creates an impermissible symbolic
union between church and state.183 According to the majority in Agostini,
there is no “perceptible difference in the degree of symbolic union between a student receiving remedial instruction” on or off the premises of a
parochial school, and the Court in Zobrest also rejected this distinction.184
C. Financial Subsidy
Despite the fact that the Court in Ball spoke clearly on the issue of
“whether the effect of the proffered aid [to religion] is direct and substantial,”185 the Court in Agostini rejected the rationale of Ball which had led
to finding an impermissible effect. Ball recognized the inherently intertwined secular and religious function of parochial schools,186 and then
reasoned that, because of this intertwining of functions, the provision of
teachers and instructional materials, unlike the provision of general welfare services to children in parochial schools, was a form of impermissible
“direct aid to the educational function of the religious school.”187 In defiId. at 2011.
Id.
Id. at 2011 (emphasis added).
Id. at 2012.
Id.
Ball, 473 U.S. at 394 (quoting Comm. for Pub. Ed. & Religious Liberty v.
Nyquist, 413 U.S. 756, 785 n.39 (1973)).
186. See id. at 395; see also supra note 65 and accompanying text (discussing the
relevance of the sectarian nature of the schools involved).
187. Ball, 473 U.S. at 395. The Court cited Wolman v. Walter, 433 U.S. 229,
243 (1977) to demonstrate the distinction between impermissible direct aid and
neutral general welfare benefits that just happen to be administered through
schools. See also supra note 83 and accompanying text.
180.
181.
182.
183.
184.
185.
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ance of this prior reasoning, the Court in Agostini concluded that Witters
and Zobrest rendered Title I aid to sectarian schools a permissible
subsidy.188
Though the grant at issue in Witters was issued directly to a recipient
who would use the money for religious education, the Court in Agostini
reasoned that because the statutory grant in Witters was based on neutral
criteria and any money ultimately flowing to a religious institution did so
only as the result of a private choice, “we have departed from the rule relied on in Ball that all government aid that directly aids the educational
function of religious schools is invalid.”189 The Court summarily rejected
the possible distinctions that could be drawn between state grants to individual students and the Title I program.
Moreover, Agostini rejected the concern of Ball that even indirect aid
may “impermissibly finance religious indoctrination.”190 The Court reasoned that, like the statutory scheme in Zobrest under which disabled individuals received aid, the Title I scheme under challenge made aid available neutrally to eligible recipients and provided services that were supplemental.191 Therefore, the Court concluded that, like providing an interpreter to the petitioner in Zobrest, Title I services did not “relieve sectarian schools of costs they otherwise would have borne in educating their
students.”192
Again, to support its contention that the Title I aid scheme did not
impermissibly subsidize the religious mission of institutions, the Court
attacked Justice Souter’s competing view by emphasizing the seemingly
illogical alternative of off-campus instruction.193 In short, the Court found
no difference in the financial benefit or subsidy that a religious school
receives between the on-premises and off-premises provision of Title I
services; therefore, the on-premises instruction did not provide an impermissible subsidy.194
D. Entanglement
The Court addressed the entanglement problems presented by the Title I
program upon which Aguilar was based.195 While implicitly affirming the
continued relevance of this third prong of the Lemon test, the Court recog188.
189.
190.
191.
192.
193.
194.
195.
See Agostini, 117 S. Ct. at 2011.
Id.
Id. at 2012.
See id.
Id. at 2013.
See id. at 2013-14.
See Agostini, 117 S. Ct. at 2013-14.
See id. at 2014-15.
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nized that the purpose of the prong may render it simply “an aspect of the
inquiry into a statute’s effect.”196 After emphasizing the need for an entanglement to be excessive before rising to the level of constitutional infirmity, the Court set forth the three grounds upon which Aguilar rested its
finding of entanglement: “(i) the program . . . require[s] ‘pervasive monitoring’ . . . to ensure that Title I employees do not inculcate religion; (ii)
the program require[s] ‘administrative cooperation’ between the Board
and parochial schools; and (iii) the program might increase the dangers of
‘political divisiveness.’”197 The Court rejected the latter two considerations because “they are present no matter where Title I services are offered.”198 The first consideration was also discarded because it rested on
the presumption that the public employees would inculcate religion, and
because that presumption was abandoned by Zobrest, there was no reason
to assume that pervasive monitoring was required.199
E. Prudential Determinations
Finally, the Court offered some brief arguments about how neither the
doctrine of stare decisis nor the law of the case doctrine prevented its decision, as well as a few defenses, aimed at Justice Ginsburg’s dissent, of
its procedural decision to reconsider Aguilar.200 Then, while disavowing
any suggestion that it recognized the overruling of two cases by the implications of subsequent cases, the Court expressly overruled Ball and Aguilar. 201 The trial court was correct, the Court counseled, “to recognize that
the [60(b)(5)] motion had to be denied unless and until this Court reinterpreted its binding precedent.”202 However, “we see no reason to wait for a
‘better vehicle’ in which to evaluate the impact of subsequent cases on
Aguilar’s continued validity.”203
F. The Dissenters
Justice Souter’s dissent defended the Aguilar decision, not so much for
196. Id. at 2015; see also Marsa v. Wernick, 86 N.J. 232, 242-43 (1981). The
New Jersey Supreme Court, in interpreting and applying the Lemon test, has examined the practical significance of the entanglement prong, noting that “where
the conduct itself is undertaken directly by government officials or personnel, the
third element of the tripartite test, excessive government entanglement, is effectively embraced by the other standards of the test.” Id.
197. Agostini, 117 S. Ct. at 2015.
198. Id.
199. See id. at 2015-16.
200. See id. at 2017-18.
201. See id. at 2017.
202. Id.
203. Agostini, 117 S. Ct. at 2018.
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the entanglement ground upon which it rested as for its adherence to the
principles that the State may neither subsidize religion directly nor act in
ways that could be reasonably viewed as religious endorsement.204 After
providing a historical justification for both principles,205 Souter assessed
the practical effect of the Court’s reasoning. “If a State may constitutionally enter the schools to teach in the manner in question, it must in constitutional principle be free to assume, or assume payment for, the entire
cost of instruction provided in any ostensibly secular subject in any religious school.”206
Souter also directly addressed the majority’s repeated reference to the
distinction between Title I instruction occurring on and off the premises of
sectarian schools. Though the issue was not before the Court, even offpremises aid could prove to be an impermissible subsidy to religious
schools, he argued, if it saves the schools money they would have had to
spend on similar programs and therefore, “makes it easier for them to survive and concentrate their resources on their religious objectives.”207
However, even if this argument proved insufficient to bar off-premises
aid, the on and off premises line remains a sensible one for two reasons.208
First, if Title I services are provided off-campus, they are less likely to
provide an impermissible subsidy or to cause a shifting of resources by the
school.209 Second, “the difference in the degree of reasonably perceptible
endorsement is substantial.”210 In short, if the state keeps its distance from
these parochial schools, the likelihood of observers perceiving state approval of the schools’ missions is reduced.211 For Souter, the symbolic
union concern necessitates drawing of constitutional lines, and “on one
side of every one of them is an otherwise sympathetic case that provokes
impatience with the Constitution and with the line. But constitutional
lines are the price of constitutional government.”212
Justice Souter’s dissent is perhaps most significant for its alternative
reading of Zobrest and Witters upon which the Court relies so heavily. As
for the Court’s announcement that Zobrest abandoned the presumption
that placing public employees on parochial school grounds results in an
See id. at 2020 (Souter, J., dissenting).
See id.
Id. at 2021-22 (Souter, J., dissenting).
Id. at 2022.
See id. The possibility that the off-premises aid might be deemed the perfect
free exercise accommodation in the face of an establishment prohibition of onpremises aid was not raised.
209. See Agostini, 117 S. Ct. at 2022.
210. Id.
211. See id.
212. Id. at 2026.
204.
205.
206.
207.
208.
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impermissible symbolic union,213 Souter accepted that Zobrest rejected a
per se presumption but only because the nature of the employee’s job in
Zobrest (sign-language interpreter) rendered him “more like a hearing aid
than a teacher, and the signing could not be understood as an opportunity
to inject religious content in what was supposed to be secular
instruction.”214 The majority’s rendering of Zobrest, for Justice Souter,
blatantly extended Zobrest beyond its holding.215 Souter also rejected the
Court’s claim that Zobrest implicitly repudiated the risk of symbolic union
arising from public employees being placed in parochial schools.216 Zobrest simply did not address the symbolic effect of public school teachers
entering parochial schools. Rather, on the issue of symbolic union, “the
lesson of Zobrest is merely that less is less.”217
As for the concern over the possible financial subsidy to religious
schools, Justice Souter’s dissent not only assailed the Court’s interpretation of Zobrest and Witters, it also recognized that the majority’s characterization of the propositions upon which Ball rested may be flawed.218
Contrary to the majority’s claim, Ball did not establish that “any and all”
public aid that directly aids the educational function of religious schools
impermissibly finances religious indoctrination.219 Rather, Ball emphasized that the determining factor is “whether the effect of the proffered aid
was direct and substantial.”220 Contrary to the majority’s understanding
then, Witters and Zobrest were substantially different from Ball in that
they involved single beneficiaries and, therefore, in those cases, only limited aid would flow to religious schools and only as a result of individual
private choices.221 In addition, Witters found it significant that the program as a whole did not result in a significant amount of aid flowing to
sectarian institutions.222
For Justice Souter, the Title I scheme under consideration was fundamentally different from the programs in Zobrest and Witters because, instead of aiding individual grantees whose independent choices direct
where the aid will flow, it serves some 22,000 students at religious schools
See supra note 175 and accompanying text.
Agostini, 117 S. Ct. at 2023.
See id.
See id.
Id.
See id. at 2023-24.
Id. at 2024.
Agostini, 117 S. Ct. at 2024; see also supra notes 89-90 and accompanying
text (discussing the distinction between permissible indirect aid and impermissible
direct aid).
221. See Agostini v. Felton, 117 S. Ct. 1997, 2024 (1997).
222. See id.; see also supra notes 104-05 and accompanying text.
213.
214.
215.
216.
217.
218.
219.
220.
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who “may not apply directly for Title I funds,”223 and instead of serving
blind or deaf students, it funds instruction in core subjects.224 In short,
“[t]he Title I services necessarily relieved a religious school of ‘an expense that it otherwise would have assumed.’”225
Souter’s dissent is significant because, in his analysis of precedent, the
Court was indeed making “fresh law” in Agostini. 226 If correct, this conclusion leaves the Court defenseless against the dissent of Justice Ginsburg, who argues that the Court misapplied Federal Rule of Civil Procedure 60(b)(5) because, “nothing can disguise the reality that, until today,
Aguilar had not been overruled. Good or bad, it was in fact the law.”227
In Justice Ginsburg’s opinion the Court’s hearing of Agostini is an unprecedented use of Rule 60(b)(5) that goes beyond the recognized power
of appellate courts to modify decrees.228 As conventionally used, Rule
60(b)(5) allows modification of an injunction if a party can show “‘a significant change either in factual conditions or in law’ that renders continued operation of the judgment inequitable.”229 However, as Ginsburg asserted, Rule 60(b)(5) has never been thought to “‘allow relitigation of issues that have been resolved by the judgment.’”230
Justice Ginsburg logically assailed what the majority effectively accomplished by hearing Agostini. The rule anounced in Rodriguez de
Quijas v. Shearson/American Express, Inc. 231—that lower “courts must
follow the Supreme Court case which directly controls, leaving to [the]
Court the prerogative of overruling its own decisions”232—is the majority’s basis for its assertion that the lower courts were correct to reject petitioners’ motion.233 However, Ginsburg sees this reasoning as the creation of a license for the Court to “bend Rule 60(b) to a purpose—allowing
an ‘anytime’ rehearing”234 by the Supreme Court.
This possibly disingenuous use of Rule 60(b)(5) to effectively allow an
appellate court to rehear Aguilar becomes more apparent, Ginsburg argues, if one recognizes that appellate courts may only review denials of
Id. at 2025.
Id. at 2024.
Id.
Agostini, 117 S. Ct. at 2023.
Id. at 2028 (Ginsburg, J., dissenting).
Id. at 2026-27.
Id. at 2026.
Id. at 2027 (quoting 11 W RIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE ,
§ 2863 (2d ed. 1995)).
231. 490 U.S. 477 (1989).
232. Agostini, 117 S. Ct. at 2027 (Ginsburg, J., dissenting).
233. Id. at 2028; see also id. at 2018 (majority opinion).
234. Id. at 2028.
223.
224.
225.
226.
227.
228.
229.
230.
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Rule 60(b) motions for abuse of discretion.235 No such abuse is evident
here. Since Aguilar had not been overruled at the time, the district court
properly denied petitioners’ motion without any abuse of discretion. Justice Ginsburg thus concluded that the Court should have waited for another case in which substantive Supreme Court review of the underlying
case law would be appropriate.236 The need for such careful adherence to
the Federal Rules of Civil Procedure and their traditional application is
based “in the maintenance of integrity in the interpretation of procedural
rules, preservation of the responsive, non-agenda-setting character of this
Court, and avoidance of invitations to reconsider old cases based on
speculations on chances from changes in the Court’s membership.”237
IV. PERPETUATING A JURISPRUDENCE OF DOUBT
Agostini suffers from three related infirmities. The first, and most arguable, is the Court’s substantive interpretation of Witters and Zobrest. The
Court announces that those cases stand for what amounts to several significant shifts in Establishment Clause law. However, it is not the Court’s
conclusions in this regard that are troubling, because those two cases can
easily be argued to create the logical roots for an adjustment in the rigidity
of Establishment Clause analysis. Unfortunately, the reasoning behind the
Court’s assertions about the changes in law effected by Witters and Zobrest are not fully borne out. While a significant amount of the supportive
reasoning offered is a rebuttal to the off-premises option that the Court
paints Justice Souter as championing, much of the changes in law are
stated in a conclusory fashion.
Of course, if the substantive analysis leaves something to be desired, it
is not without a reason. The procedural context of the case (appeal from a
denial of a 60(b)(5) motion) in a way forces the Court to limit its supporting rationale for the ultimate outcome, and perhaps, to cajole more out
of Witters and Zobrest than they actually hold so that it can be said that
the law of Aguilar had already changed prior to Agostini. Indeed, this
See id.
Agostini, 117 S. Ct. at 2028.
Id. (citing Illinois Central R. Co. v. Illinois, 184 U.S. 77, 92 (1902)). Notably, the Court’s membership is one way of explaining the change from Aguilar to
Agostini. The former decision was written by Justice Brennan and joined by Justices Blackmun, Powell, Marshall, and Stevens. See Aguilar v. Felton, 473 U.S.
402 (1985). Justices Burger, Rehnquist, White, and O’Connor dissented. See id. at
419-31. The latter decision was written by Justice O’Connor and joined by Justices Rehnquist, Scalia, Kennedy, and Thomas. See Agostini v. Felton, 117 S. Ct.
1997 (1997). Justices Souter, Stevens, Ginsburg, and Breyer dissented. See id. at
2019.
235.
236.
237.
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jurisprudentially suspect claim by the Court is the most puzzling aspect of
the case. Because of Rule 60(b)(5), the Court, in effect, simultaneously
declares that Aguilar had been overruled and that it is thus overruled by
Agostini.
A. Jurisprudential Cooking
“Among the stupendous powers of the Supreme Court of the United
States . . . is the power, through an articulate search for principle, to interpret history . . . [and] the power, through the disposition of cases, to make
it.”238 This observation of Mark DeWolfe Howe is amply evidenced by
the Court in Agostini. Unable to grant petitioners’ 60(b)(5) motion based
on the inequity of Aguilar having prospective application, because constitutional requirements must supersede equitable claims, the Court makes
history by simply declaring that prior judgments, which themselves had
announced what the Constitution requires, were now vacated.239 Justice
O’Connor reasoned that Aguilar had been overruled, as a practical matter,
by two subsequent cases, despite the fact that those cases did not themselves question the validity of Aguilar. Justice Souter delivers a convincing argument that, through its interpretation and application of precedent,
the Court is making fresh law in Agostini under the guise of finding a
change in law sufficient to satisfy Rule 60(b)(5). Indeed, even the Court
expressly declared that “we therefore overrule Ball and Aguilar,”240 without addressing whether by this declaration the law is being established or,
as the Court at times postures, Agostini is simply acknowledging that
those earlier cases “are no longer good law.”241
The Court is forced to adhere to the fiction that the law had significantly
changed since Aguilar in order to grant Rule 60(b)(5) relief, despite the
fact that the actual change in law arguably did not occur until the gavel
struck in Agostini. 242 In rejecting petitioners’ earlier argument that the
statements of five Justices in another case calling for the reconsideration
of Aguilar constituted the requisite change in law for grant of a 60(b)(5)
motion, Justice O’Connor wrote, “[b]ut the question of Aguilar’s propriety
was not before us. . . .”243 That is perfectly logical. If the question of
Aguilar’s (or Ball’s) propriety is not before the Court, then the law it proM ARK DEW OLFE HOWE, THE GARDEN AND THE W ILDERNESS 3 (1965).
See FED. R. C IV. P. 60(b)(5); see also supra notes 167-69 and accompanying
text (discussing Rule 60(b)(5)).
240. Agostini, 117 S. Ct. at 2017.
241. Id. at 2016.
242. See LON L. FULLER , THE M ORALITY OF LAW 51 (2d ed., 1964)(discussing the
declarative function of law).
243. Agostini, 117 S. Ct. at 2007.
238.
239.
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nounced can not be said to have changed, let alone “significantly
changed.” The paradox that the Court creates by at once declaring fresh
law and finding a change in prior law stands in considerable tension with
elementary principles of the rule of law.
Despite the Court’s declaration that the law had changed to render
Aguilar invalid, Agostini was the first instance in which such changes in
law were announced and deemed sufficient to overrule Aguilar. Only
Agostini makes the parties and the public privy to this change in law. As
Professor Lon L. Fuller recognized, laws must
be given adequate publication so that they may be subject to public
criticism . . . . It is also plain that if the laws are not made readily available,
there is no check against a disregard of them by those charged with their application and enforcement . . . . The requirement that laws be published
does not rest on any such absurdity as an expectation that the dutiful citizen
244
will sit down and read them all.
In Agostini, the Court neglects this principle of the rule of law leaving
even the most learned citizens guessing as to what the Constitution might
tomorrow be held to have mandated.
If Aguilar can be implicitly overruled by Zobrest and Witters, whose
pronouncements are only analogously applicable, then any majority of
Justices is able to recognize or effect a change in law without actually
having to justify its decision to overrule the prior case on the merits. The
Court can avoid the responsibility that comes with changing the law by
simply saying that it has already changed. Competing interpretations of
precedents in an area of law such as the Establishment Clause are understandable because in such a sensitive area of law it is impossible “to find
any set of principles that reconciles all standing statutes and
precedents.”245 However, because of the Rule 60(b)(5) context of the
case, the Court in Agostini effectively is forced to assert that the “gravitational force”246 of Aguilar silently disappeared. This silent disappearance
is particularly disconcerting because, as Professor Ronald Dworkin has
written, when recognizing mistakes in prior decisions, “consistency requires justification, not explanation, and the justification must be plausible
and not a sham. If the justification . . . makes distinctions that are arbitrary and deploys principles that are unappealing, then it cannot count as
justification at all.”247 Agostini, because of its procedural context, fails to
provide an adequate justification for change in the law. After a careful
See FULLER, supra note 241, at 51 (emphasis added).
R ONALD DWORKIN, TAKING R IGHTS SERIOUSLY 119 (1977).
Id. at 113. Dworkin uses the term “gravitational force” to refer to the
authority of precedent. Id. “[T]he force of a precedent escapes the language of its
opinion.” Id.
247. Id. at 119.
244.
245.
246.
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and genuine reading of Zobrest and Witters, it remains difficult to understand how Aguilar ever lost the status of law without proper justification
in the form of a fresh new case directly challenging its precepts.
If it were deciding whether Title I programs are constitutionally permissible in general, the Court would be correct to consider the meaning of
Aguilar and Ball and then examine whether subsequent cases may “have
so undermined” those cases that they were “no longer good law,”248 or no
longer had gravitational force. This type of straight constitutional analysis,
rather than the Court’s analysis of the programs under the guise of reviewing the denial of a Rule 60(b)(5) motion, would hold more weight and
provide a clearer source for discerning what the Establishment Clause
requires. Nevertheless, even in the Rule 60(b)(5) context, the Court could
have examined only the continuing validity of the actual holding in Aguilar, that the monitoring scheme was an unconstitutional excessive entanglement between church and state.249 The Court would have thus limited
the meaning of Agostini to a recognition of a more universally accepted
change in Establishment Clause law—the reduction of the rigidity of the
entanglement prong of Lemon. 250
The Court does assert that the entanglement prong has increasingly been
seen as nothing more than “an aspect of the inquiry into the statute’s effect.”251 However, the Court maintains the formal relevance of the third
prong of Lemon, and, for that matter, of the much maligned Lemon test
altogether.252 Simple repudiation of this prong would have left for another
day the articulation of the proper current analysis for determining whether
a program such as Title I has an unconstitutional effect. Undoubtedly, this
would not have solved the jurisprudential infirmity of at once declaring
and recognizing a change in law. However, that the entanglement prong is
no longer a relevant part of Establishment Clause analysis seems much
more plausible than reading Zobrest and Witters as encompassing paradigmatic shifts in law. Moreover, this option might have been preferable
because the nature of the effects inquiry is so controlling in Establishment
Clause cases that its articulation is deserving of maximum clarity. By
forcing future litigants to argue the controlling nature of Ball, instead of
resorting to the transparent fiction necessary in the Rule 60(b)(5) context,
Agostini, 117 S. Ct. at 2007.
See supra notes 54-55 and accompanying text (discussing the finding of
excessive entanglement in Aguilar).
250. See supra notes 128-29, 194-98 and accompanying text (discussing the potential demise of entanglement).
251. Agostini, 117 S. Ct. at 2015. See also supra note 195 and accompanying
text.
252. For criticism of the test set forth in Lemon, see, for example, BERG , supra
note 142, at 696.
248.
249.
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that Aguilar had practically or impliedly been overruled by subsequent
cases, the Court would have had the opportunity to overrule Aguilar using
the proper justification that is incumbent in straight constitutional analysis.
B. Interpretative Cooking
The Court’s substantive analysis of the inculcation, symbolic union and
financial subsidy problems that may arise under the primary effects prong
of Lemon is somewhat tenuous. Rejection of the presumption that public
employees will inculcate religion to religious school students is the most
acceptable of the Court’s conclusions. Indeed, this presumption created in
Ball may have been improperly applied to the Shared Time Program
which employed public employees in parochial schools.253 Nevertheless,
the reasoned and perhaps overdue rejection of the presumed inculcation
presumption as applied to the Title I programs cannot alone guarantee the
program’s constitutionality.
Despite the Court’s summary treatment of it,254 Ball’s symbolic union
assumption was based on reasoning and a broader constitutional principle
which preceded Ball. Agostini’s firm rejection of this assumption required
more than merely citing the implied repudiation of this assumption by
Zobrest. Ball discussed at length the principle that when the powers of
government become closely identified with those of any religion it may
have an unconstitutional effect.255 This is never of more concern to the
Court than when impressionable young children are the first-hand observers of the symbolic union.256 Justice O’Connor’s opinion asserted that
Zobrest undermines the rationale behind finding the presence of public
school teachers in parochial school classrooms unconstitutional. However, it fails to address directly whether the scheme in Aguilar conveys a
message of “government endorsement or disapproval of religion.”257 This
failure in O’Connor’s opinion is particularly curious, since it is her own
“endorsement” test258 which so heavily focuses on the effect of symbolism
253. See supra note 79 and accompanying text (referring to Justice O’Connor’s
partial dissent in Ball where she rejected the presumption as applied to the public
employees but accepted it as to the parochial school employees for the Community
Education Program).
254. See supra notes 181-83 and accompanying text (discussing the symbolic
union inquiry in Agostini).
255. See Ball, 473 U.S. at 390.
256. See id. (“The symbolism of a union between church and state is most likely
to influence children of tender years. . . .”); cf. Widmar v. Vincent, 454 U.S. 263,
274 (1981); Tilton v. Richardson, 403 U.S. 672 (1991).
257. Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring).
258. See supra notes 127-33 and accompanying text (on Justice O’Connor’s en-
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on the “objective observer” who is familiar with the values recognized in
the Free Exercise Clause.259 And here the objective observer is the impressionable child compelled to be at school.
Perhaps Justice O’Connor’s endorsement rationale would reject a
heightened scrutiny of the symbolism of union when it affects young children and conclude that the enlightened objective observer would find no
government endorsement of religion stemming from the generally available benefits of the Title I program. Neverthless, Agostini fails to provide
persuasive reasoning for the conclusion that the Title I program does not
have an impermissible effect by creating a symbolic union that conveys “a
message to nonadherents that they are outsiders, not full members of the
political community, and . . . to adherents that they are insiders, favored
members of the political community. . . .”260
Surely, there might be some difference between the symbolism involved
in a publicly employed sign language interpreter placed in a parochial
school classroom to serve the needs of a single deaf student (in Zobrest),
and a public school teacher serving the academic needs of a class of parochial school students. If the Court believed those situations to be equal in
their degree of symbolism, it should have supported that conclusion.
Moreover, it should have recognized that such a conclusion makes new
law, at least in so far as it would further refine the symbolic union inquiry.
When dealing with concerns over symbolism, off-premises instruction
could very well be the solution to constitutional infirmity. Agostini somehow rejects this premise without rejecting the symbolic union inquiry itself.
The Court’s analysis of the third potentially fatal effects problem of
financing the religious mission of sectarian schools is also flawed. According to the Court, Zobrest and Witters held that this type of supplemental aid to sectarian schools is permissible.261 This conclusion neglects
a critical distinction. In Ball, the Court addressed whether aid to religious
institutions is provided directly or indirectly, such as through the conduit
of individual students. The Court reasonably concluded that where “no
meaningful distinction can be made between aid to the student and aid to
the school,” the concept of aid “to individuals is a transparent fiction.”262
In short, aid may have the effect of subsidizing religious schools even if it
takes the form of aid to students or parents.263
dorsement test).
259. See Wallace, 472 U.S. at 76, 83 (O’Connor, J., concurring).
260. Lynch, 465 U.S. at 688.
261. See Agostini, 117 S. Ct. at 2011.
262. Ball, 473 U.S. at 396, citing Wolman v. Walter, 433 U.S. 229, 264 (1977).
263. See, e.g., Wolman, 433 U.S. at 248-51.
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In Agostini, the Court fails to give due attention to the distinction between direct and indirect aid, and ultimately ascribes meanings to Zobrest
and Witters that go beyond the holdings in those cases. In Witters, Justice
Marshall made clear that central to the Court’s decisions was that the tuition money was paid directly to the student and only flowed to religious
institutions by virtue of the independent choices of aid recipients.264 It is
somewhat difficult to deem Title I aid indirect aid, without resort to the
type of transparent fiction that has been condemned by the Court.265
The Court’s reliance on Zobrest is even more questionable. In that case
the Court expressly distinguished the type of Title I aid found unconstitutional in Ball. 266 According to the Court in Zobrest, while Title I aid “in
effect subsidized the religious functions of the parochial schools by taking
over a substantial portion of their responsibility for teaching secular subjects,”267 the provision of a sign language interpreter to a disabled student
in a parochial school was a permissible indirect subsidy that did not relieve the religious school from an expense that it otherwise would have
incurred in educating its students.268 The Court in Agostini somehow neglects its prior recognition of differences between the effects of the two
programs and finds the situations indistinguishable.269
C. Procedural Cooking
Given the uncertainty about the Court’s interpretation of precedent and
the ambiguity of when or how the change in Establishment Clause law
since Aguilar was effected, Justice Ginsburg’s dissent on the Court’s suspect handling of this 60(b)(5) motion and her general argument that the
Court should not have heard the case deserves further analysis. Petitioners
relied upon the decision in Rufo v. Inmates of Suffolk County Jail270 to
press their 60(b)(5) motion. As recognized by both Justice O’Connor and
Justice Ginsburg, in Rufo the Court held that it is appropriate to grant a
Rule 60(b)(5) motion when the party seeking modification of a consent
decree can show “a significant change either in factual conditions or in
law.”271 Indeed, Rufo rejected, as out of context, the strict standard for
modification of a consent decree that had been announced by Justice Car264. See Witters v. Wash. Dept. of Serv’s for the Blind, 474 U.S. 481, 488
(1986).
265. See Ball, 473 U.S. at 396 (citing Wolman, 433 U.S. at 264).
266. See Zobrest v. Catalina Foothills School Dist., 509 U.S. 1, 12 (1993).
267. Id. (citing Ball, 473 U.S. at 397).
268. See id.
269. See Agostini, 117 S. Ct. at 2012-13.
270. 502 U.S. 367 (1992).
271. Id. at 384.
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dozo in United States v. Swift & Co. 272 That oft-quoted standard required
“nothing less than a clear showing of grievous wrong evoked by new and
unforeseen conditions . . . .”273 as a predicate to modification of a consent
decree.
In rejecting that stricter standard, the Court recognized the need for a
flexible responsive standard under which district courts may modify decrees based on changed circumstances.274 However, extending that responsiveness to include what is effectively reconsideration of a prior case
by the Supreme Court was never the purpose of this procedural mechanism. The consent decree under challenge in Rufo was the product of a
finding of unconstitutional jail conditions for pre-trial inmates.275 Accordingly, the decree enjoined the government defendants from housing
any pre-trial inmate with another inmate in the same jail cell.276 The petitioners then argued in support of their Rule 60(b)(5) motion that the subsequent decision of Bell v. Wolfish, 277 which held double-celling not to be
unconstitutional in all cases, required modification of the decree which
was in force.278 However, the Court rejected this argument because “to
hold that a clarification in the law automatically opens the door for relitigation of the merits of every affected consent decree would undermine the
finality of such agreements and could serve as a disincentive to negotiation of settlements in institutional reform litigation.”279
Of course, Rufo and Agostini might be distinguished on grounds of the
difference between a consent decree entered into by the parties, and a
permanent injunction entered unilaterally by a court. It is plausible that
consent decrees, because based on agreement of the parties, should be
more difficult to modify. Indeed, that could explain the Court’s rejection
of the petitioners’ change in law argument in Rufo, but acceptance of a
similar change in law argument in Agostini. However, the Court in Agostini, while considering the continued validity of a court-entered injunction,
did not recognize this possible distinction despite relying on Rufo where a
consent decree was under consideration. Therefore, presumably the same
standard is applicable to the modification of either type of decree.
272. 286 U.S. 106 (1932) (rejecting defendants’ petition for modification of a
consent decree that was the product of a prolonged antitrust battle with the government and had enjoined the defendants from manipulating the meat-packing
industry and banned them from engaging in certain foodstuffs activities.).
273. Id. at 119.
274. Rufo, 502 U.S. at 380.
275. Id. at 372-73.
276. Id. at 373.
277. 441 U.S. 520 (1979).
278. Rufo, 502 U.S. at 388.
279. Id. at 389.
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Moreover, a differing standard for the two types of decrees would have
precisely the same negative effect on constitutional adjudication, a disincentive to settlement in institutional reform litigation that the Court in
Rufo expressly avoided.280 In other words, if consent decrees were held to
a higher standard for modification than permanent injunctions, settlement
by consent decree would present nothing but the opportunity to agree to
undesirable conduct that might eventually exceed constitutional requirements, but be more difficult to amend than an injunction entered by a
court. The standard would be irrelevant in the event of increased constitutional limitations requiring a change in government conduct, because the
consent decree would, of necessity, satisfy the minimum constitutional
requirements. Therefore, the Court’s neglect of the distinction between
cases involving modifications of consent decrees and those involving
permanent injunctions is entirely appropriate because the standard for
modification is the same.
Accordingly, questions remain about the Court’s use of 60(b)(5) in Agostini. While the question remains why the Court in Rufo rejected the
argument that Bell v. Wolfish, directly on point on the issue of the constitutionality of double-celling, constituted a change in law upon which
modification of a consent decree under Rule 60(b)(5) could be
predicated,281 the Court in Agostini accepted the argument that two analogously applicable Establishment Clause cases constituted a sufficient
change in law entitling petitioners to relief from the District Court’s permanent injunction entered in response to Aguilar. 282
While the common law tradition of constitutional interpretation allows
general principles to be extrapolated from one specific case and applied to
another factually distinct case, it is only after the application of the general
principle to a new situation that a change in law has traditionally been
recognized to occur. Accordingly, if the Court is intent on overruling
Aguilar, it should not, in the context of a Rule 60(b)(5) motion, have
overlooked the question of whether a change in law had actually occurred
prior to the Agostini decision. This oversight or avoidance injects Agostini with a broader and more dangerous precedent, that implicit repudiations of the reasoning of prior cases can effect a change in law prior to any
expression of the change for purposes of Rule 60(b)(5).
Justice Ginsburg’s analysis is powerful because the Court’s hearing of
the case does expand the scope of Rule 60(b)(5) beyond the previously
recognized power of appellate courts to modify decrees.283 The Court
280.
281.
282.
283.
Id. at 388-89.
See id.
See Agostini, 117 S. Ct. at 2003.
See id. at 2026-27 (Ginsburg, J., dissenting).
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seems to overstep the bounds of what it purports to be doing in Agostini,
reviewing the denial of a Rule 60(b)(5) motion. Moreover, the Court’s
willingness to construe Rule 60(b)(5) broadly and, in effect, to reconsider
Aguilar in this context, is likely one reason for the less than clear weight
of the pronouncements in Agostini on the meaning of the Establishment
Clause. Indeed, as this Article shifts to considering the import of Agostini
and assessing several questions which the Court has left open, opponents
of this liberal use of Rule 60(b)(5) may gain another point of attack. That
is, Supreme Court reconsideration of cases in this context may not be conducive to announcing well-reasoned law.
V. SEARCHING FOR MEANING
A. Legislating the Religion Clauses
In addition to compounding the confusion over the direction and state of
Establishment Clause doctrine, Agostini may also confirm the increased
tendency of recent religion clause cases being affected by legislative decisions. As in Bowen, where the Court was openly deferential to Congressional findings that supported legislative judgments about the role religious organizations could play in solving certain secular problems,284 the
Court in Agostini may have quietly found a way to prevent congressionally created benefits from being trapped in a constitutional bottleneck.
While the analysis in Bowen openly incorporated a measure of deference
to Congress, the effect of the decision in Agostini is similar in that the
Court engages in a creative analysis, both as to establishment precedents
and as to the use of Rule 60(b)(5), so that its decision does not thwart
what Congress sought to accomplish through Title I. This deference factor is discernible in other establishment cases as well as in cases invoking
the Free Exercise Clause.
For example, in Westside Community Board of Education v. Mergens, 285
the Court appeared deferential to the broad congressional purpose at work
in the Equal Access Act.286 When rejecting petitioners’ claim that the Act
had the primary effect of advancing religion by conveying a message of
government approval of the religious activities allowed to be conducted on
public school premises by student groups, the Court drew a distinction
between “government speech endorsing religion, which the Establishment
284. See Bowen, 487 U.S. at 606-07. See also supra notes 102-11 and accompanying text (regarding Bowen).
285. 496 U.S. 226 (1989).
286. 20 U.S.C. §§ 4071-74 (1994).
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Clause forbids, and private speech endorsing religion, which the Free
Speech and Free Exercise Clauses protect.”287 The Court supported its
reasoning by noting that “Congress specifically rejected the argument that
high school students are likely to confuse an equal access policy with state
sponsorship of religion . . . we do not lightly second-guess such legislative
judgments . . . .”288 Thus, the Court deferentially allowed legislative
findings to effectively answer the constitutional question of whether an
objective observer in the position of a secondary school student would
perceive a government endorsement of religion.289 Again, the Court refused to let the Establishment Clause bar what Congress saw fit to allow.
If a statute attempts to accommodate free exercise rights, a lax and deferential approach may be taken by the Court when receipt by religious
persons or institutions of neutrally available government benefits is challenged under the Establishment Clause. The general concern over preventing religious persons or institutions from enjoying a neutrally available government benefit can manifest itself by demanding an analysis that
is strictly protective of believers. Indeed, the Court has acted zealously to
ensure that no religious claimant is excluded from a free exercise accommodation granted by Congress. For example, in United States v.
Seeger, 290 the Court heard constitutional challenges to a federal statute
allowing for exemption from military service for persons who by reason of
their “religious training and belief” are conscientiously opposed to participation in any war.291 The Court construed the statute as setting forth the
test of religiosity of belief as, “whether a given belief that is sincere and
meaningful occupies a place in the life of its possessor parallel to that
filled by the orthodox belief in God of one who clearly qualifies for the
exemption.”292 This extremely broad interpretation served at least to ensure that the congressionally conferred benefit and free exercise right of
conscientious objection would be enjoyed by the widest possible range of
“believers.”293
Thus, when a statutory right is at issue, the Court has, at times, demonMergens, 496 U.S. at 250 (emphasis in original).
Id.
See id. at 249. See also County of Allegheny v. Am. Civil Liberties Union,
Greater Pittsburgh Chapter, 492 U.S. 573, 593 (1989) (regarding the endorsement
inquiry as an applicable establishment test).
290. 380 U.S. 163 (1965).
291. Id. at 164-65.
292. Id. at 166.
293. But cf. Lyng v. Northwest Indian Protective Ass’n., 485 U.S. 439 (1988)
(refusing to broadly interpret the American Indian Religious Freedom Act in order
to preserve sacred sites in national forests); City of Boerne v. Flores, 117 S. Ct.
2157 (1997) (striking down the Religious Freedom Restoration Act, which provided for broad free exercise rights, as beyond the scope of Congressional power).
287.
288.
289.
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strated an inclination to engage in creative constitutional and statutory
analyses, vigorously protective when the statute confers a free exercise
benefit,294 or deferential and lax when the statute is challenged as an establishment violation. The Court in Bowen seized on distinctions in its
precedents to shift the burden away from religious grantees when the aid
is available neutrally and generally in a public funding scheme.295 In
Mergens, however, the Court deferred to Congress’s judgment on the effect of the Equal Access Act, and in Seeger the Court expansively interpreted a statute to ensure receipt by all possible religious claimants of a
congressionally conferred free exercise accommodation. In Agostini, the
Court first engages in a sleight of hand related to its finding of a significant change in law for Rule 60(b)(5) purposes, and then interprets precedent rather broadly to restore neutral congressional aid to religious institutions. Therefore, Agostini may be another example of the Court’s
shaping First Amendment analysis to coincide, rather than conflict with
the receipt or enjoyment of government benefits by religious individuals
and institutions. The examples of this influence on constitutional analysis
are unsettling because of the potential risk that the Court may abdicate its
judicial function as a valid check on political processes.296 Moreover, if
these considerations have influenced the Court’s analysis, they are one
more reason for the continuing lack of a clear and understandable Establishment Clause jurisprudence.
294. Conversely, when confronted with arguments that a statute is unconstitutional because it fails to sufficiently accommodate a free exercise right, the Court
has, at times, refused to engage in constitutional decision making which would
alter or override legislative or executive judgments. See, e.g., Goldman v. Weinberger, 475 U.S. 503 (1986) (By refusing to interpret the Free Exercise Clause to
interfere with the right of the Air Force to enforce a dress code that admittedly
infringed upon an important religious exercise by uniformed servicemen, the Court
effectively left amendment of the dress code to Congress.); Employment Div.,
Dep’t. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) (The Free
Exercise Clause creates no exemption from generally applicable criminal laws.
Rather, the legislature can amend the code if it wishes to accommodate religious
exercise).
295. See supra notes 106-26 and accompanying text (discussing Bowen).
296. See generally Kevin R. Johnson, Public Benefits and Immigration: The Intersection of Immigration Status, Ethnicity, Gender and Class, 42 UCLA L. REV.
1509, 1528 (1995) (“Deference by the judiciary to the political branches of government . . . may encourage extremes in policy-making.”); see also Comment, The
United States Supreme Court's Anomalous Approach to Discriminatory Alienage
Classifications: International, Canadian, & Domestic Law Compared, 11 EMORY
INT’L. L. REV. 697, 757 (1997).
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B. Burden Shifting
According to the Court, Zobrest made fresh law that removed the presumption of inculcation of religion by public employees.297 Undoubtedly,
the Court’s acceptance in Ball of this presumption was substantially supported by precedent.298 This acceptance was never the result of conclusive
evidence of religious inculcation by teachers. Such evidence was considered unnecessary since both inadvertent and subtle inculcation were a part
of the constitutional concern.299 Rather, the Court’s repeated acceptance
of this principle was prophylactic, because while uncertain whether such
inculcation would actually occur, the Court found it unconstitutional to
take the chance.300
Judicial circumspection has also informed the symbolic union
inquiry.301 As Justice Blackmun once described, the Establishment Clause
“calls for fundamentally conservative decisionmaking: our cases do not
require a plaintiff to demonstrate that a government action necessarily
promotes religion, but simply that it creates such a substantial risk.”302
Neverthless, the Court in Agostini rejects this history of cautious constitutional logic. 303 By linking the need for monitoring that might give rise to
excessive entanglement directly to the concern over inculcation, the Court
effectively shifts the burden of proving an unconstitutional
entanglement.304 Moreover, the Court’s summary account of why the Title
I program posed no symbolic union problem without addressing the actual
symbolic impact of the program reduces the careful approach that has traditionally been employed and shifts the burden, so to speak, of proving an
unconstitutional symbolic effect.305 Thus, Agostini might be read to hold
297.
Agostini, 117 S. Ct. at 2011. See also supra note 170 and accompanying
text.
298. See Meek v. Pittenger, 421 U.S. 349, 370 (1975); see also Wolman v. Walter, 433 U.S. 229, 247 (1977).
299. See supra notes 66-68 and accompanying text.
300. See Lemon, 403 U.S. at 619 (“The State must be certain, given the Religion
Clauses, that subsidized teachers do not inculcate religion.”) (emphasis added); see
also Levitt v. Comm. for Pub. Educ. & Religious Liberty, 413 U.S. 472, 480
(1973) (“[T]he State is constitutionally compelled to assure that the statesupported activity is not being used for religious indoctrination.”) (emphasis
added).
301. See supra note 81 and accompanying text.
302. See Bowen v. Kendrick, 487 U.S. 589, 648 (Blackmun, J., dissenting) (emphasis in original).
303. See supra note 188 and accompanying text (discussing the Court’s dismissal
of the entanglement issue in Agostini).
304. See supra note 188 and accompanying text.
305. See supra notes 253-58 and accompanying text (regarding the Court’s handling of the symbolic union inquiry in Agostini).
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that the prophylactic approach to finding unconstitutional establishments
is no longer appropriate. Rather, the burden of proving an Establishment
Clause violation has shifted to the litigant seeking to vindicate his or her
constitutional rights.
C. Doctrinal Confusion
Establishment Clause law is riddled with uncertainties stemming from
sometimes irreconcilable cases that do not rest upon any unifying principles. Indeed, Lemon’s predicted doom has been supported by the introduction of several differing principles vying to control Establishment
Clause cases in the future.306 At least three of the justices have announced
their conception of the proper reasoning to be applied to establishment
issues.307 For better or worse, this situation means that at times lower
courts will decide cases based on an interpretation of the Establishment
Clause or a form of reasoning that the Supreme Court finds inappropriate.
While difficulties abound for a legal system with rules that are contradictory or not understandable,308 it is nonetheless proper for the Court to fulfill its role as the final arbiter of constitutional rights.309 However, in Agostini, while the Court declares why previous Establishment Clause cases
(Aguilar and Ball) are no longer good law, it fails to adequately pronounce
what general standards or principles have replaced them.
Agostini demonstrates that the uncertainty of law in this field has
reached record proportions. Rule 60(b)(5) motions normally present
lower courts with a routine question about whether facts or law have
changed so as to warrant modification of a decree.310 Agostini proves that
lower courts cannot truly answer the question of whether the law as announced, in a case upon which a standing decree is predicated, has
changed. Regardless of whether a case has ever been expressly overruled,
distinguished, or cited with approval, there is no possible way that a lower
court can be certain of the case’s continuing validity in the minds of a
current majority of Supreme Court Justices. To be sure, it is the province
306. See supra notes 131-44 (on proposed and competing alternative analytical
frameworks); see also Paulsen, supra note 141, at 800-01.
307. Id.
308. See FULLER , supra note 241, at 39.
309. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-78 (1803) (“It is emphatically the province and duty of the judicial department to say what the law
is.”).
310. See generally 11 W RIGHT, M ILLER & K ANE , FEDERAL PRACTICE AND
PROCEDURE § 2863 (2d ed. 1995) (“It is clear that a strong showing is required
before an injunction or other prospective judgment will be modified . . . Because
the standard is an exacting one, many applications for relief on this ground are
denied.”). See also Agostini, 117 S. Ct. at 2026-27 (Ginsburg, J., dissenting).
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and duty of the Court to say what the law is, but to admit this state of uncertainty is to admit both that Establishment Clause jurisprudence is
nothing more than what the Court says it is in a given case,311 and that in
Agostini the litigants used a Rule 60(b)(5) motion to have their case reconsidered.
While Agostini could certainly serve as another example of the dangerous pliability of the analytically flawed Lemon test,312 the case ironically
renders the continued significance of Lemon an open question. Although
the Court goes through each of Lemon’s three prongs, it does so in a methodical attempt to demonstrate that Aguilar and Ball, which both applied
the Lemon framework, have been undermined. Therefore, it is unclear
whether the Court adheres to Lemon because of the context of Agostini, or
because despite the many previously expressed misgivings of members of
the current Court,313 it finds the test appropriate and useful again as an
Establishment Clause measure.
After all, Justice O’Connor makes no more than a passing statement that
Agostini would come out the same way under her previously announced
endorsement standard, announcing, “[t]he same considerations that justify
this holding require us to conclude that this carefully constrained program
also can not reasonably be viewed as an endorsement of religion.”314
Adding to the doctrinal confusion, Justice Kennedy joins O’Connor’s
opinion despite their vigorous disagreement in the past over the proper
Establishment Clause analysis.315 Have Kennedy and O’Connor joined
hands to resurrect the previously moribund Lemon test? If not, why does
Agostini command a majority who apply Lemon, rather than a plurality
311. See, e.g., Paulsen, supra note 141, at 800-01 (arguing that “Each of Lemon’s
three “prongs” for evaluating the constitutionality of government action challenged under the Establishment Clause . . . had some major analytical flaw or ambiguity . . . the ambiguity of the test left the Court leeway to interpret each prong
in varying ways, producing a bewildering patchwork of decisions as the justices
engaged in a tug-of-war over the interpretation of the test.”); Lynch v. Donnelly,
465 U.S. 668 (1984) (weakly enforcing the Lemon test to uphold a government
sponsored creche). See also Philip Kurland, The Religion Clauses and the Burger
Court, 34 C ATH. U. L. REV. 1, 12-13 (1984) (criticizing Lynch as “disingenuous”
and “sleazy”).
312. See Paulsen, supra note 141, at 800.
313. See supra notes 128-45 and accompanying text (regarding misgivings of
Justices about Lemon test).
314. Agostini, 117 S. Ct. at 2016. For a discussion by Justice O’Connor on the
“no endorsement” standard, see Allegheny County v. Greater Pittsburgh ACLU,
492 U.S. 573, 625 (1989) (O’Connor, J., concurring); Lynch v. Donnelly, 465 U.S.
at 689 (O’Connor, J., concurring).
315. See supra notes 129-38 and accompanying text (discussing the competing
views of O’Connor and Kennedy).
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that lifts the injunction through differing analyses?
Agostini fails to enunciate any “abstract principles regarding the contours and contents of protected realms of liberty” that are desirable because they push us “constantly to check practice against principle.”316
Rather, Agostini determines principle based on practice.317 Despite competing conceptions of the Establishment Clause which have confused
precedent and allowed the Court room for creative interpretation to supply
and apply the meaning of the establishment guarantee, “those who face the
responsibility of the interpretation itself, must wish that it should proceed
on the most secure footing that can be obtained . . . .”318 In Agostini, the
Court forsakes that wish in favor of a defensible practical outcome and a
continued jurisprudence of doubt.
316. Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition
of Rights, 57 U. CHI. L. REV. 1057, 1099 (1990).
317. Indeed, Justice O’Connor’s approach to Establishment Clause questions may
admit a sort of principled pragmatism. See, e.g., Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 718-19 (1994) (O’Connor, J., concurring) (“[T]he same constitutional principle may operate very differently in different contexts . . . setting forth a unitary test for a broad set of cases may sometimes
do more harm than good . . . I think it is more useful to recognize the relevant
concerns in each case on their own terms . . .”).
318. FULLER , supra note 241, at 102.