Zorach v. Clauson

Zorach based his suit on the Establishment Clause of the First Amendment, which holds that: "Congress shall make no law respecting an establishment of religion . . . " Since the days of Thomas Jefferson, this clause of the Constitution has been interpreted to mean that "a wall of separation" exists between church and state. And since the Court decided Everson v. Board of Education in 1947, government has had to maintain an attitude of strict neutrality towards religion in order to keep that wall up.

The effort with regard to public schools has been especially fraught. In 1948, the Court considered the first of its "released time" cases, Illinois ex rel. McCollum v. Board of Education, in which religious instruction provided to public school students by independent teachers on school grounds was struck down. Just four years later, in Zorach, however, the Court upheld a similar "released time" program. The only obvious difference between the two programs was that in Zorach the religious instruction took place away from school property.

It is not easy to square Zorach with McCollum. Indeed, in later years, Justice Douglas, the author of the majority opinion in Zorach disavowed what he had to say there. But Douglas's opinion itself contains indications of why the Court has not only not reversed Zorach, but subsequently expanded upon it:

We would have to press the concept of separation of Church and state to . . . extremes to condemn the present law on constitutional grounds . . . In each case the teacher requires parental consent in writing. In each case the teacher, in order to make sure the student is not a truant, goes further and requires a report from the priest, the rabbi, or the minister. The teacher in other words cooperates in a religious program to the extent of making it possible for her students to participate in it. Whether she does it occasionally for a few students, regularly for one, or pursuant to a systematized program designed to further the religious needs of all the students does not alter the character of the act.

The difference between the situations in McCollum and Zorach was the manner in which students confirmed participation. In McCollum the students had to opt out, and in the latter students had to make an affirmative effort to participate. The decision to engage in religious activities during school hours, in other words, was theirs and their parents'. This line of thought eventually led, in Lemon v. Kurtzman (1971), to the Lemon test for acceptable state accommodation of religion. In order for a statute or program not to violate the Establishment Clause, it must meet three requirements: 1) it must have a secular legislative purpose; 2) its primary purpose must neither advance nor inhibit religion; and 3) it must not foster excessive government entanglement with religion.

It is this third prong of the Lemon test that evolved from Zorach. If students--or better yet, their more independent parents--make the decision to participate in religious activities only tangentially connected with the public schools, then the government itself avoids "excessive entanglement." Such thinking has led to decisions like Board of Education v. Mergens (1990), in which the Court upheld prayer meetings organized and held at a public high school during an "activity period" when students were free to attend a wide variety of other, secular events.