In Roemer v. Board of Public Works of Maryland (1976), the U.S. Supreme Court upheld the constitutionality of a program from Maryland that made public funds available to religiously affiliated institutions of higher education. Roemer is a relatively obscure case in the academic literature, because not a single law review article has been devoted exclusively to an analysis of the Court’s judgment, even though it is cited frequently in these writings. Nevertheless, Roemer remains important, because it reinforced earlier precedent approving state and federal funding programs that are neutral on their face but provide aid to religious colleges and universities so long as such programs are not “pervasively sectarian.”
In 1971, the Supreme Court resolved Lemon v. Kurtzman, in which it struck down statutes from Pennsylvania and Rhode Island that authorized governmental financial aid for the benefit of private elementary and secondary schools in the form of salary supplements for teachers, including those who taught in Roman Catholic schools. At the heart of its rationale, the Court articulated its now well-known three-part Lemon test for analyzing Establishment Clause challenges to government programs that aid religious institutions. In order to pass constitutional muster, the Lemon Court decreed, government programs that aid religious institutions must have secular legislative purposes, must not have the principal or primary effect of advancing (or inhibiting) religion, and must not excessively entangle states in religious affairs.
On the same day as it handed down Lemon, in Tilton v. Richardson (1971), the Supreme Court upheld the constitutionality of the Higher Education Facilities Act of 1963 against an Establishment Clause challenge, in spite of the fact that the statute allowed religious colleges and universities to participate in a funding program for the construction of facilities. Two years later, in Hunt v. McNair (1973), the Supreme Court upheld the constitutionality of the South Carolina Educational Facilities Act, a state law authorizing the issuance of revenue bonds for construction of college and university buildings in the state, including those built by religious institutions. In Roemer, the Supreme Court again addressed the issue of governmental aid for religious colleges as a plurality upheld a program from Maryland that allowed such assistance.
Facts of the Case
At issue in Roemer was a law authorizing the Maryland Council for Higher Education to award state funds to private in-state institutions of higher education that met statutory criteria and that maintained one or more “associate of arts or baccalaureate degree” programs and that refrained from awarding “only seminarian or theological degrees” (Roemer, p. 740). Under the law, participating colleges and universities were required to use the state funds for secular purposes only and to report to the council on how they used the money. The law authorized the council to make appropriations to Maryland’s private colleges and universities on an annual basis. In 1971, 17 private colleges and universities, including four Catholic colleges and one Methodist institution, received a total of $1.7 million in state aid.
Taxpayers sued the Maryland Board of Public Works and the five religious colleges that received money pursuant to the statute, challenging its constitutionality under the Establishment Clause and seeking the return of money that had been awarded to the religious colleges. The Methodist college was subsequently dismissed from the suit, because its officials chose to disassociate from its religious leadership, and one of the Catholic institutions ceased operations. A divided three-judge federal trial court upheld the law after applying the threepart Lemon test.
The Supreme Court’s Ruling
On further review, the Supreme Court affirmed the constitutionality of the statute in a plurality opinion (meaning that it did not achieve the five-justice majority needed to become binding precedent). The opinion was written by Justice Blackmun, with Justices Burger and Powell joining.
Citing its own precedent, a plurality of the Supreme Court observed that “religious institutions need not be quarantined from public benefits that are neutrally available to all” (p. 746). The Court then applied the three-part Lemon test for evaluating whether the statute passed constitutional muster. With respect to the first prong of the test, which required that the legislature have secular purposes for awarding the funds, the plurality noted that the taxpayers had not challenged the earlier judgment that the statute had the secular purpose of aiding private higher education generally. Thus, the result of the first prong of the test was not in dispute.
The plurality devoted considerable discussion to the second prong of the Lemon test. The plurality noted that the religious colleges that had received funding under the law were not “pervasively sectarian” and that religion courses, although mandatory, were mere supplements to their liberal arts curricula, which were offered in an atmosphere of academic freedom. Moreover, the plurality reasoned that the state funding extended only to the colleges’ secular activities. Thus, the plurality had no difficulty upholding the ruling that the primary effect of the law was secular.
Turning to the third prong of the Lemon test—the question of whether the law created excessive entanglement between the state and religious institutions—the plurality agreed with the trial court that it did not. Acknowledging that gauging whether entanglement is present between church and state is not an exact science, the plurality affirmed the trial court’s emphasis on the character of the Catholic colleges that had been aided by the law, concluding that their officials were capable of separating their secular and religious functions.
Justice White, joined by Justice Rehnquist, agreed with Roemer’s outcome but filed a concurring opinion emphasizing that it was unnecessary to analyze whether the law created excessive entanglement between the state and religious institutions, professing that this prong of the Lemon test was both curious and mystifying. Justice Brennan, joined by Justice Marshall, filed a dissenting opinion. Justices Stewart and Justice Stevens each filed separate dissents.
In addition to the dissenters having filed relatively short opinions detailing why they believed that the statute violated the Lemon test, Justice Stevens expressed his concern about what he described as “the pernicious tendency of a state subsidy to tempt religious schools to compromise their religious mission without wholly abandoning it” (p. 775).
In Roemer, then, the Supreme Court approved governmental aid for religious colleges and universities for the third time. In so ruling, the Court made it clear that the Establishment Clause was not a constitutional barrier to government aid programs that were properly constructed and that provided benefits to both religious and secular institutions as long as the religious colleges and universities were not “pervasively sectarian” in character.
See also State Aid and the Establishment Clause
Higher Education Facilities Act, Pub. L. No. 88-204 (1963).
Hunt v. McNair, 413 U.S. 734 (1973).
Lemon v. Kurtzman, 403 U.S. 602 (1971).
Roemer v. Board of Public Works of Maryland, 426 U.S. 736 (1976).
Tilton v. Richardson, 403 U.S. 672 (1971).