Stephen Breyer

“ How are state officials to adjudicate claims that one religion or another is advocating, for example, civil disobedience in response to unjust laws, the use of illegal drugs in a religious ceremony, or resort to force to call attention to what it views as an immoral social practice? ”

“ In a society as religiously diverse as ours, the Court has recognized that we must rely on the Religion Clauses of the First Amendment to protect against religious strife, particularly when what is at issue is an area as central to religious belief as the shaping, through primary education, of the next generation’s minds and spirits. ”

“ With respect to government aid to private education, did not history show that efforts to obtain equivalent funding for the private education of children whose parents did not hold popular religious beliefs only exacerbated religious strife? As Justice Rutledge recognized:
“Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here one [religious sect] by numbers [of adherents] alone will benefit most, there another. ”

“ And the selection of those criteria, as well as their application, inevitably pose problems that are divisive. Efforts to respond to these problems not only will seriously entangle church and state, see Lemon, 403 U.S., at 622, but also will promote division among religious groups, as one group or another fears (often legitimately) that it will receive unfair treatment at the hands of the government.
I recognize that other nations, for example Great Britain and France, have in the past reconciled religious school funding and religious freedom without creating serious strife. ”

“ The upshot is the development of constitutional doctrine that reads the Establishment Clause as avoiding religious strife, not by providing every religion with an equal opportunity (say, to secure state funding or to pray in the public schools) , but by drawing fairly clear lines of separation between church and state–at least where the heartland of religious belief, such as primary religious education, is at issue.
II The principle underlying these cases–avoiding religiously based social conflict–remains of great concern. ”

“ History suggests, not that such private school teaching of religion is undesirable, but that government funding of this kind of religious endeavor is far more contentious than providing funding for secular textbooks, computers, vocational training, or even funding for adults who wish to obtain a college education at a religious university. ”

“ It will not satisfy groups whose religious beliefs preclude them from participating in a government-sponsored program, and who may well feel ignored as government funds primarily support the education of children in the doctrines of the dominant religions. And it does little to ameliorate the entanglement problems or the related problems of social division that Part II, supra, describes. Consequently, the fact that the parent may choose which school can cash the government’s voucher check does not alleviate the Establishment Clause concerns associated with voucher programs. ”

“ Their students recited Protestant prayers, read the King James version of the Bible, and learned Protestant religious ideals. See, e.g., D. Tyack, Onward Christian Soldiers: Religion in the American Common School, in History and Education 217—226 (P. Nash ed. 1970) . Those practices may have wrongly discriminated against members of minority religions, but given the small number of such individuals, the teaching of Protestant religions in schools did not threaten serious social conflict. ”

“ As religiously diverse as America had become when the Court decided its major 20th century Establishment Clause cases, we are exponentially more diverse today. America boasts more than 55 different religious groups and subgroups with a significant number of members. ”

“ The 20th century Court was fully aware, however, that immigration and growth had changed American society dramatically since its early years. By 1850, 1.6 million Catholics lived in America, and by 1900 that number rose to 12 million. ”

“ Jeffries & Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 299—300 (Nov. 2001) . There were similar percentage increases in the Jewish population. Kosmin & Lachman, supra, at 45—46. Not surprisingly, with this increase in numbers, members of non-Protestant religions, particularly Catholics, began to resist the Protestant domination of the public schools. Scholars report that by the mid-19th century religious conflict over matters such as Bible reading “grew intense,” as Catholics resisted and Protestants fought back to preserve their domination. ”