William & Mary Bill of Rights Journal
Abstract
Over the past three decades, members of the Supreme Court have demonstrated increasing hostility to the Establishment Clause’s rule against funding religion, first enunciated in 1947. Over the years, the Court has not only narrowed the rule to allow for government aid to flow to religious schools and faith-based charities, it has more recently declared that to enforce that rule may amount to discrimination against religion. This Article argues that a key reason for the decline in the no-aid principle rests on the weakness of the rationale underlying that rule: that funding of religion coerces the conscience of taxpayers. The taxpayer conscience rationale, though valid historically as basis for the clause’s prohibition on government funding of religion, no longer makes sense. And because the taxpayer conscience rationale is wanting, so too is the Flast v. Cohen rule permitting taxpayer standing to challenge government disbursements to religious entities. This Article then proposes an alternative basis for the no-aid principle, that being the concept that government has “no agency” over religious matters, a theory originally enunciated by James Madison. As explained, the no-agency theory is a structural or jurisdictional limitation on the power of government to finance inherently religious activity. If adopted, the no-agency rationale would restore needed credibility to the no-aid principle.