Roemer v. Maryland Board of Public Works, 426 U.S. 736 (1976)

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This case involved a challenge to a Maryland provision of annual grants to private colleges and universities, including religiously affiliated institutions, as long as (1) no funds were used for ‘‘sectarian purposes,’’ (2) no institution awarded ‘‘only seminarian or theological degrees,’’ and (3) the state determined eligibility for aid and compliance with the statute.

Anti-aid plaintiffs appealed to the Supreme Court which held (five to four) that the First Amendment Establishment Clause did not prohibit the aid statute. Justice Harry Blackmun, writing for the court, noted that the Maryland statute had a secular purpose (to support higher education); and did not have the primary effect of advancing religion since the autonomous Catholic institutions were not ‘‘pervasively sectarian,’’ did not require chapel attendance or classroom prayers, chose faculty and students ‘‘without regard to religion,’’ and supplemented mandatory religion classes with a wide range of liberal arts courses. Further, aid did not create ‘‘excessive’’ church/state entanglement (the colleges performed ‘‘essentially secular educational functions’’ and compliance audits were similar to generic college accreditation processes.

In his summation, Blackmun lectured on the necessary distinction between a scrupulous state neutrality ‘‘regarding religion and an impossible hermetic separation of the two.’’ He highlighted the Court’s past recognition that ‘‘religious institutions need not be quarantined from public benefits that are neutrally available to all,’’ and the state may sometimes ‘‘act in such a way that has the incidental effect of facilitating religious activity.’’ Neutrality with respect to religion meant only ‘‘the state must confine itself to secular objectives ... neither advance nor impede religious activity,’’ and avoid ‘‘such an intimate relationship with religious authority that it appears either to be sponsoring or to be excessively interfering with that authority.’’ Despite some inconsistency in demarcating acceptable and unacceptable church/state relations, the Court has usually held ‘‘neutral’’ aid to sectarian schools for secular activities and facilities permissible. In prior cases (Tilton v. Richardson [1971], Hunt v. McNair [1973], and Board of Education v. Allen [1968]), it found no constitutional bar against secular textbook subsidies for private schools or building grants for religious colleges.

Roemer dissenters, William Brennan, Thurgood Marshall, John Paul Stevens, and Potter Stewart, argued that the Maryland statute directly aided religious institutions and thus advanced religion—an Establishment Clause violation.

The debate over the extent to which a state may accommodate (without endorsing) religion in efforts to enhance education resurfaced repeatedly since Roemer. The Court ruled (1) state provision of textbooks and various health, remedial, guidance, and diagnostic services to students attending church-related schools (Wolman v. Walter [1977]); (2) tax breaks for church-related school tuition costs (Mueller v. Allen [1983]); (3) rehabilitation aid to a blind student in pastoral studies at a Christian college (Witters v. Washington [1986]); (4) provision of sign langu age interpreters for private school students (Zobrest v. Catalina [1993]); (5) provision of public school teachers for remedial instruction on parochial school campuses (Agostini v. Felton [1997]); and (6) government loans of ‘‘nonideological’’ educational material and equipment to sectarian schools (Mitchell v. Helms [2000]) did not violate the Establishment Clause.

These cases indicated that government aid that crosses paths in a neutral way and for secular purposes with church-related schools does not endorse or establish religion. They continued in the accommodationist understanding Blackmun revealed in his reminder in Roemer of the inevitable entanglement of church and state. He wrote:

A system of government that makes itself felt as pervasively as ours could hardly be expected never to cross paths with the church. In fact, our State and Federal Governments impose certain burdens upon, and impact certain benefits to, virtually all our activities, and religious activity is not an exception. The Court has enforced a scrupulous neutrality by the State, as among religions, and also as between religious and other activities, but a hermetic separation of the two is an impossibility it has never required.


References and Further Reading

  • Alley, Robert. The Constitution and Religion: Leading Supreme Court Cases on Church and State. Amherst, NY: Prometheus Books, 1999.
  • Levy, Leonard. The Establishment Clause. New York: Macmillan, 1986.
  • McConnell, Michael, John H. Harvey, and Thomas C. Berg. Religion and the Constitution. New York: Aspen Publishers, 2002.

Cases and Statutes Cited

  • Agostini v. Felton, 521 U.S. 203 (1997)
  • Board of Education v. Allen, 392 U.S. 236 (1968)
  • Hunt v. McNair, 413 U.S. 734 (1973)
  • Mitchell v. Helms, 530 U.S. 793 (2000)
  • Mueller v. Allen, 463 U.S. 388 (1983)
  • Tilton v. Richardson, 403 U.S. 672 (1971)
  • Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986)
  • Wolman v. Walter, 433 U.S. 229 (1977)
  • Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993)

See also Establishment Clause (I): History, Background, Framing; First Amendment and PACs; Marshall, Thurgood; Stevens, John Paul; Stewart, Potter