In Dissent, Souter Says Court’s Ruling Crosses Constitutional Line

July 09, 1997 2 min read
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JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE GINSBERG join, and with whom JUSTICE BREYER joins [in part], dissenting.

... [T]he court’s holding that petitioners are entitled to relief ... is seriously mistaken. ... The result is to repudiate the very reasonable line drawn in Aguilar and Ball, and to authorize direct state aid to religious institutions on an unparalleled scale, in violation of the establishment clause’s central prohibition against religious subsidies by the government. ...

I believe Aguilar was a correct and sensible decision, and my only reservation about its opinion is that the emphasis on the excessive entanglement produced by monitoring religious instructional content obscured those facts that independently called for the application of two central tenets of establishment clause jurisprudence. The state is forbidden to subsidize religion directly and is just as surely forbidden to act in any way that could reasonably be viewed as religious endorsement . ...

The human tendency, of course, is to forget the hard lessons, and to overlook the history of governmental partnership with religion when a cause is worthy, and bureaucrats have programs. That tendency to forget is the reason for having the establishment clause (along with the Constitution’s other structural and libertarian guarantees), in the hope of stopping the corrosion before it starts. ...

What was true of the Title I scheme as struck down in Aguilar will be just as true when New York reverts to the old practices with the court’s approval after today. There is simply no line that can be drawn between the instruction paid for at taxpayers’ expense and the instruction in any subject that is not identified as formally religious. ...

... [I]f a line is to be drawn short of barring all state aid to religious schools for teaching standard subjects, the Aguilar-Ball line was a sensible one capable of principled adherence. It is no less sound, and no less necessary, today. ...

... [T]he object of Title I is worthy without doubt, and the cost of compliance is high. In the short run there is much that is genuinely unfortunate about the administration of the scheme under Aguilar‘s rule. But constitutional lines have to be drawn, 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.


The court today finds a way to rehear a legal question decided in respondents’ favor in this very case some 12 years ago. Subsequent decisions, the majority says, have undermined Aguilar and justify our immediate reconsideration. This court’s rules do not countenance the rehearing here granted. For good reason, a proper application of those rules and the Federal Rules of Civil Procedure would lead us to defer reconsideration of Aguilar until we are presented with the issue in another case. ...

Unlike the majority, I find just cause to await the arrival of [other cases] in which our review appropriately may be sought, before deciding whether Aguilar should remain the law of the land. That cause lies 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.

A version of this article appeared in the July 09, 1997 edition of Education Week


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