State Aid and the Establishment Clause

Over the past 60 years, the 16 words in the Establishment and Free Exercise clauses of the First Amendment rank among the most litigated language in the entire U.S. Constitution. Enacted as part of the Bill of Rights in 1791, the First Amendment declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

At the outset, it is worth noting that the goal of this entry is to provide an overview of Supreme Court litigation under the Establishment Clause in disputes involving state aid to K-12 religiously affiliated non-public schools and their students. For this purpose, it is unnecessary to engage in a full discussion of the different approaches to the Establishment Clause by undertaking what could be a lengthy examination of the attitudes ofthejurists whose opinions have shaped the Court's First Amendment jurisprudence.

Instead, it is sufficient to note that the Court's judgments have largely been influenced by which of the two camps that have emerged in the majority on the bench at given points in time. The two perspectives that have tended to hold sway among the Court's members are those of the accommodationists and sep-arationists. In the context of state aid, accommodationists believe that the Establishment Clause does not forbid the federal or state governments from providing some forms of assistance, under the legal [Page 784]construct known as the child benefit test, to children who attend religiously affiliated nonpublic schools. Conversely, separationists support the Jeffersonian metaphor that calls for preserving a “wall of separation” between church and state, language that is not in the Constitution; this is the perspective most often associated with the Supreme Court for the better part of the past half century.