SUPREME COURT OF THE UNITED STATES - No. 94-329 - RONALD W. ROSENBERGER, et al., PETITIONE

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SUPREME COURT OF THE UNITED STATES -------- No. 94-329 -------- RONALD W. ROSENBERGER, et al., PETITIONERS v. RECTOR and VISITORS OF THE UNIVERSITY OF VIRGINIA et al. on writ of certiorari to the united states court of appeals for the fourth circuit [June 29, 1995] Justice Thomas, concurring. I agree with the Court's opinion and join it in full, but I write separately to express my disagreement with the historical analysis put forward by the dissent. Although the dissent starts down the right path in consulting the original meaning of the Establishment Clause, its misleading application of history yields a principle that is inconsistent with our Nation's long tradition of allowing religious adherents to participate on equal terms in neutral government programs. Even assuming that the Virginia debate on the so- called -Assessment Controversy- was indicative of the principles embodied in the Establishment Clause, this incident hardly compels the dissent's conclusion that government must actively discriminate against religion. The dissent's historical discussion glosses over the fundamental characteristic of the Virginia assessment bill that sparked the controversy: The assessment was to be imposed for the support of clergy in the perfor- mance of their function of teaching religion. Thus, the -Bill Establishing a Provision for Teachers of the Christian Religion- provided for the collection of a specific tax, the proceeds of which were to be appro- priated -by the Vestries, Elders, or Directors of each religious society . . . to a provision for a Minister or Teacher of the Gospel of their denomination, or the providing places of divine worship, and to none other use whatsoever.- See Everson v. Board of Ed. of Ewing, 330 U. S. 1, 74 (1947) (appendix to dissent of Rutledge, J.). James Madison's Memorial and Remonstrance Against Religious Assessments (hereinafter Madison's Remon- strance) must be understood in this context. Contrary to the dissent's suggestion, Madison's objection to the assessment bill did not rest on the premise that reli- gious entities may never participate on equal terms in neutral government programs. Nor did Madison em- brace the argument that forms the linchpin of the dissent: that monetary subsidies are constitutionally different from other neutral benefits programs. Instead, Madison's comments are more consistent with the neutrality principle that the dissent inexplicably dis- cards. According to Madison, the Virginia assessment was flawed because it -violate[d] that equality which ought to be the basis of every law.- Madison's Remon- strance -4, reprinted in Everson, supra, at 66 (appendix to dissent of Rutledge, J.). The assessment violated the -equality- principle not because it allowed religious groups to participate in a generally available government program, but because the bill singled out religious entities for special benefits. See ibid. (arguing that the assessment violated the equality principle -by subjecting some to peculiar burdens- and -by granting to others peculiar exemptions-). Legal commentators have disagreed about the histori- cal lesson to take from the Assessment Controversy. For some, the experience in Virginia is consistent with the view that the Framers saw the Establishment Clause simply as a prohibition on governmental prefer- ences for some religious faiths over others. See R. Cord, Separation of Church and State: Historical Fact and Current Fiction 20-23 (1982); Smith, Getting Off on the Wrong Foot and Back on Again: A Reexamination of the History of the Framing of the Religion Clauses of the First Amendment and a Critique of the Reynolds and Everson Decisions, 20 Wake Forest L. Rev. 569, 590-591 (1984). Other commentators have rejected this view, concluding that the Establishment Clause forbids not only government preferences for some religious sects over others, but also government preferences for religion over irreligion. See, e.g., Laycock, -Nonpreferential- Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875, 875 (1986). I find much to commend the former view. Madison's focus on the preferential nature of the assessment was not restricted to the fourth paragraph of the Remon- strance discussed above. The funding provided by the Virginia assessment was to be extended only to Chris- tian sects, and the Remonstrance seized on this defect: -Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects.- Madison's Remonstrance -3, reprinted in Everson, supra, at 65. In addition to the third and fourth paragraphs of the Remonstrance, -Madison's seventh, ninth, eleventh, and twelfth arguments all speak, in some way, to the same intolerance, bigotry, unenlightenment, and persecution that had generally resulted from previous exclusive religious establishments.- Cord, supra, at 21. The conclusion that Madison saw the principle of nonestab- lishment as barring governmental preferences for particular religious faiths seems especially clear in light of statements he made in the more-relevant context of the House debates on the First Amendment. See Wallace v. Jaffree, 472 U. S. 38, 98 (1985) (Rehnquist, J., dissenting) (Madison's views -as reflected by actions on the floor of the House in 1789, [indicate] that he saw the [First] Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects,- but not -as requir- ing neutrality on the part of government between religion and irreligion-). Moreover, even if more extreme notions of the separation of church and state can be attributed to Madison, many of them clearly stem from -arguments reflecting the concepts of natural law, natural rights, and the social contract between govern- ment and a civil society,- Cord, supra, at 22, rather than the principle of nonestablishment in the Constitution. In any event, the views of one man do not establish the original understanding of the First Amendment. But resolution of this debate is not necessary to decide this case. Under any understanding of the Assessment Controversy, the history cited by the dissent cannot support the conclusion that the Establishment Clause -categorically condemn[s] state programs directly aiding religious activity- when that aid is part of a neutral program available to a wide array of beneficiaries. Post, at 13. Even if Madison believed that the principle of nonestablishment of religion precluded government financial support for religion per se (in the sense of government benefits specifically targeting religion), there is no indication that at the time of the framing he took the dissent's extreme view that the government must discriminate against religious adherents by excluding them from more generally available financial subsidies. In fact, Madison's own early legislative proposals cut against the dissent's suggestion. In 1776, when Vir- ginia's Revolutionary Convention was drafting its Declaration of Rights, Madison prepared an amendment that would have disestablished the Anglican Church. This amendment (which went too far for the Convention and was not adopted) is not nearly as sweeping as the dissent's version of disestablishment; Madison merely wanted the Convention to declare that -no man or class of men ought, on account of religion[,] to be invested with peculiar emoluments or privileges . . . .- Madison's Amendments to the Declaration of Rights (May 29-June 12, 1776), in 1 Papers of James Madison 174 (W. Hutchinson & W. Rachal eds. 1962) (emphasis added). Likewise, Madison's Remonstrance stressed that -just government- is -best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.- Madi- son's Remonstrance -8, reprinted in Everson, supra, at 68; cf. Terrett v. Taylor, 9 Cranch 43, 49 (1815) (holding that the Virginia constitution did not prevent the government from -aiding the votaries of every sect to . . . perform their own religious duties,- or from -estab- lishing funds for the support of ministers, for public charities, for the endowment of churches, or for the sepulture of the dead-). Stripped of its flawed historical premise, the dissent's argument is reduced to the claim that our Establishment Clause jurisprudence permits neutrality in the context of access to government facilities but requires discrimi- nation in access to government funds. The dissent purports to locate the prohibition against -direct public funding- at the -heart- of the Establishment Clause, see post, at 17, but this conclusion fails to confront historical examples of funding that date back to the time of the founding. To take but one famous example, both Houses of the First Congress elected chaplains, see S. Jour., 1st Cong., 1st Sess., 10 (1820 ed.); H. R. Jour., 1st Cong., 1st Sess., 26 (1826 ed.), and that Congress enacted legislation providing for an annual salary of $500 to be paid out of the Treasury, see Act of Sept. 22, 1789, ch. 17, 4, 1 Stat. 70, 71. Madison himself was a member of the committee that recommended the chaplain system in the House. See H. R. Jour., at 11-12; 1 Annals of Cong. 891 (1789); Cord, supra, at 25. This same system of -direct public funding- of congressional chaplains has -continued without interruption ever since that early session of Congress.- Marsh v. Chambers, 463 U. S. 783, 788 (1983). The historical evidence of government support for religious entities through property tax exemptions is also overwhelming. As the dissent concedes, property tax exemptions for religious bodies -have been in place for over 200 years without disruption to the interests represented by the Establishment Clause.- Post, at 20, n. 7 (citing Walz v. Tax Comm'n of New York City, 397 U. S. 664, 676-680 (1970)). In my view, the dissent's acceptance of this tradition puts to rest the notion that the Establishment Clause bars monetary aid to religious groups even when the aid is equally available to other groups. A tax exemption in many cases is economically and functionally indistinguishable from a direct mone- tary subsidy. In one instance, the government relieves religious entities (along with others) of a generally applicable tax; in the other, it relieves religious entities (along with others) of some or all of the burden of that tax by returning it in the form of a cash subsidy. Whether the benefit is provided at the front or back end of the taxation process, the financial aid to religious groups is undeniable. The analysis under the Establish- ment Clause must also be the same: -Few concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than for the government to exercise at the very least this kind of benevolent neutrality toward churches and religious exercise . . . .- Walz, supra, at 676-677. Consistent application of the dissent's -no-aid- princi- ple would require that -`a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair.'- Zobrest v. Catalina Foothills School Dist., 509 U. S. ___, ___ (1993) (slip op., at 6) (quoting Widmar v. Vincent, 454 U. S. 263, 274-275 (1981)). The dissent admits that -evenhandedness may become important to ensuring that religious interests are not inhibited.- Post, at 18, n. 5. Surely the dissent must concede, however, that the same result should obtain whether the government provides the populace with fire protection by reimbursing the costs of smoke detectors and overhead sprinkler systems or by estab- lishing a public fire department. If churches may benefit on equal terms with other groups in the latter program-that is, if a public fire department may extin- guish fires at churches-then they may also benefit on equal terms in the former program. Though our Establishment Clause jurisprudence is in hopeless disarray, this case provides an opportunity to reaffirm one basic principle that has enjoyed an unchar- acteristic degree of consensus: The Clause does not compel the exclusion of religious groups from govern- ment benefits programs that are generally available to a broad class of participants. See Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. ___ (1993); Zobrest, supra; Board of Ed. of Westside Commu- nity Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990); Texas Monthly, Inc. v. Bullock, 489 U. S. 1 (1989); Witters v. Washington Dept. of Services for Blind, 474 U. S. 481 (1986); Mueller v. Allen, 463 U. S. 388 (1983); Widmar, supra. Under the dissent's view, however, the University of Virginia may provide neutral access to the University's own printing press, but it may not provide the same service when the press is owned by a third party. Not surprisingly, the dissent offers no logical justification for this conclusion, and none is evident in the text or original meaning of the First Amendment. If the Establishment Clause is offended when religious adherents benefit from neutral programs such as the University of Virginia's Student Activities Fund, it must also be offended when they receive the same benefits in the form of in-kind subsidies. The constitutional demands of the Establishment Clause may be judged against either a baseline of -neutrality- or a baseline of -no aid to religion,- but the appropriate baseline surely cannot depend on the fortuitous circumstances surround- ing the form of aid. The contrary rule would lead to absurd results that would jettison centuries of practice respecting the right of religious adherents to participate on neutral terms in a wide variety of government-funded programs. Our Nation's tradition of allowing religious adherents to participate in evenhanded government programs is hardly limited to the class of -essential public benefits- identified by the dissent. See post, at 18, n. 5. A broader tradition can be traced at least as far back as the First Congress, which ratified the Northwest Ordi- nance of 1787. See Act of Aug. 7, 1789, ch. 8, 1 Stat. 50. Article III of that famous enactment of the Confed- eration Congress had provided: -Religion, morality, and knowledge . . . being necessary to good government and the happiness of mankind, schools and the means of learning shall forever be encouraged.- Id., at 52, n. (a). Congress subsequently set aside federal lands in the Northwest Territory and other territories for the use of schools. See, e.g., Act of Mar. 3, 1803, ch. 21, 1, 2 Stat. 225-226; Act of Mar. 26, 1804, ch. 35, 5, 2 Stat. 279; Act of Feb. 15, 1811, ch. 14, 10, 2 Stat. 621; Act of Apr. 18, 1818, ch. 67, 6, 3 Stat. 430; Act of Apr. 20, 1818, ch. 126, 2, 3 Stat. 467. Many of the schools that enjoyed the benefits of these land grants undoubtedly were church-affiliated sectarian institutions as there was no requirement that the schools be -public.- See C. Antieau, A. Downey, & E. Roberts, Freedom From Federal Establishment, Formation and Early History of the First Amendment Religion Clauses 163 (1964). Nevertheless, early Congresses found no problem with the provision of such neutral benefits. See also id., at 174 (noting that -almost universally[,] Americans from 1789 to 1825 accepted and practiced governmental aid to religion and religiously oriented educational institutions-). Numerous other government benefits traditionally have been available to religious adherents on neutral terms. Several examples may be found in the work of early Congresses, including copyright protection for -the author and authors of any map, chart, book or books,- Act of May 31, 1790, ch. 15, 1, 1 Stat. 124, 124, and a privilege allowing -every printer of newspapers [to] send one paper to each and every other printer of newspapers within the United States, free of postage,- Act of Feb. 20, 1792, ch. 7, 21, 1 Stat. 232, 238. Neither of these laws made any exclusion for the numerous authors or printers who manifested a belief in or about a deity. Thus, history provides an answer for the constitutional question posed by this case, but it is not the one given by the dissent. The dissent identifies no evidence that the Framers intended to disable religious entities from participating on neutral terms in evenhanded govern- ment programs. The evidence that does exist points in the opposite direction and provides ample support for today's decision.

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