That three-prong test articulated by the Supreme Court in Lemon v. Kurtzman (1971) is used by the high court and other federal courts to determine whether government has violated the First Amendment principle of church-state separation. Even though the word neutrality does not appear in the Lemon test, many scholars and judges have interpreted the test’s commands to mean that government must be neutral in matters of religion — that is, laws and government actions should have a secular purpose, should neither advance nor inhibit religion, and should not foster an excessive entanglement with religion. Over the years, various justices have tinkered with and criticized the Lemon test, but the Court has never overruled it.

In several recent decisions, beginning with Mueller v. Allen (1983), the high court used neutrality in part to determine whether certain government laws and actions were violating the establishment clause. Most of the cases centered on government aid to religious entities.

In Mueller, the Rehnquist Court considered a Minnesota law that allowed parents to claim income tax deductions for the expenditures they incurred — “tuition, textbooks and transportation” — in sending their children to secondary schools, including private religious ones. Writing for the majority, Chief Justice William H. Rehnquist noted: “It is not at all easy . . . to apply this Court’s various decisions construing the [establishment] Clause to governmental programs of financial assistance to sectarian schools and the parents of children attending those schools.” Construing precedent, however, Rehnquist found the Minnesota law a neutral government aid program that did not breach the church-state wall.

By the time the high court had grappled with tax benefits, such as those presented in Mueller, it had a precedent holding that not all aid to religious schools violates the First Amendment principle of church-state separation. Indeed, the decision in Mueller cited the Court’s 1947 ruling in Everson v. Board of Education, which upheld a public school policy of helping parents shoulder the costs of transporting their children to private schools via the public school busing system.

Following Mueller, the Supreme Court cited neutrality in upholding government benefits to religious schools in Witters v. Washington Department of Services for the Blind (1986) and Zobrest v. Catalina Foothills School District (1993).

But as the Rehnquist Court noted on numerous occasions, and did so in Mueller, the definition of neutrality depends largely on perception — that is, if the government funding scheme involving religion appears to be secondary or indirect, it has a much greater chance of being viewed as neutral and not a violation of church-state separation. In Mueller, Rehnquist claimed that it was “noteworthy that all but one of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the State to the schools themselves.”

At issue in the high court’s 2002 ruling in Zelman v. Simmons-Harris was an Ohio private school voucher program. Most of the high court’s previous rulings on government funding of religion were noted in upholding Ohio’s embattled plan. But in Zelman the Court expounded upon neutrality. Citing Mueller, Rehnquist wrote: “We would be loathe to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law.” In Zelman, Rehnquist also noted that its precedent made “clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under” the First Amendment principle of church-state separation.

In his dissent in Zelman, Justice David H. Souter, joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer, criticized the Rehnquist majority for its gradual departure from the long-standing “basic principle of no aid to religion.” At one time in Supreme Court precedent, Souter argued, neutrality — meaning “evenhandedness toward aid recipients” — had a “limited” but nevertheless useful purpose in the high court’s overall determination of when government support of religion violated the separation of church and state. But the majority ruling in Zelman rendered the use of neutrality in church-state jurisprudence “impossible to understand” and useless in determining when a government aid package to religion violates the separation of church and state. Instead, Souter wrote, government aid to religion, despite the Rehnquist Court’s discussion of neutrality, would remain a contentious issue:

Not all taxpaying Protestant citizens, for example, will be content to underwrite the teaching of the Roman Catholic Church condemning the death penalty. Nor will all of America’s Muslims acquiesce in paying for the endorsement of the religious Zionism taught in many religious Jewish schools, which combines “a nationalistic sentiment” in support of Israel with a “deeply religious” element. Nor will every secular taxpayer be content to support Muslim views on differential treatment of the sexes, or for that matter, to fund the espousal of a wife’s obligation of obedience to her husband, presumably taught in any schools adopting the articles of faith of the Southern Baptist Convention.

Public funding of religion in America has long been a controversial, touchy subject. The nation’s fourth president, James Madison, offered an eloquent argument against a Virginia bill providing public funds for Christian institutions. In his heralded 1785 text “Memorial and Remonstrance Against Religious Assessments,” Madison rhetorically asked his fellow citizens andVirginia lawmakers whether they could comprehend that the “same authority which can force a citizen to contribute three pence only of his property for the support any one” religion “may force him to conform” to any other religion at other times.

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