Indifferentism redux: Reflections on catholic lobbying in the Supreme Court of the United States

Notre Dame Law Review

Volumn 76, Issue 3, 2001, Pages 993-1018

  Sullivan, Winnifred Fallers ^a,b  

^a UNIVERSITY OF CHICAGO   (United States)

^b Illinois Bar ^*  (United States)

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EID: 84865074630     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (163)

1. STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: How AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION (1993). For a discussion of the pitfalls of using "belief" as a synonym for religion, see Winnifred Fallers Sullivan, Diss-ing Religion: Is Religion Trivialized in American Public Discourse?, 75 J. RELIGION 69 (1995) (reviewing CARTER, supra). See also Donald S. Lopez, Jr., Belief, in CRITICAL TERMS FOR RELIGIOUS STUDIES (Mark C. Taylor ed., 1998). This Essay was written before President Bush's enthusiastic endorsement of "faith-based initiatives." Interestingly, I think the President's speech and actions would not change most people's continued agreement with Carter's thesis.
2. STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: How AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION (1993). For a discussion of the pitfalls of using "belief" as a synonym for religion, see Winnifred Fallers Sullivan, Diss-ing Religion: Is Religion Trivialized in American Public Discourse?, 75 J. RELIGION 69 (1995) (reviewing CARTER, supra). See also Donald S. Lopez, Jr., Belief, in CRITICAL TERMS FOR RELIGIOUS STUDIES (Mark C. Taylor ed., 1998). This Essay was written before President Bush's enthusiastic endorsement of "faith-based initiatives." Interestingly, I think the President's speech and actions would not change most people's continued agreement with Carter's thesis.
3. STEPHEN L. CARTER, THE CULTURE OF DISBELIEF: How AMERICAN LAW AND POLITICS TRIVIALIZE RELIGIOUS DEVOTION (1993). For a discussion of the pitfalls of using "belief" as a synonym for religion, see Winnifred Fallers Sullivan, Diss-ing Religion: Is Religion Trivialized in American Public Discourse?, 75 J. RELIGION 69 (1995) (reviewing CARTER, supra). See also Donald S. Lopez, Jr., Belief, in CRITICAL TERMS FOR RELIGIOUS STUDIES (Mark C. Taylor ed., 1998). This Essay was written before President Bush's enthusiastic endorsement of "faith-based initiatives." Interestingly, I think the President's speech and actions would not change most people's continued agreement with Carter's thesis.
4. 530 U.S. 290, 318-326 (2000) (Rehnquist, C.J., dissenting).
5. Id. at 318.
6. 120 S. Ct. 2530 (2000) (plurality).
7. Id. at 2551.
8. I am somewhat reluctant to use the expression Religion "Clauses" in this Essay given Judge Noonan's known dislike of the expression, but I bow to convention. See, e.g., JOHN T. NOONAN, JR., THE LUSTRE OF OUR COUNTRY: THE AMERICAN EXPERIENCE OF RELIGIOUS FREEDOM 81 (1998).
9. See RELIGION AND AMERICAN CULTURE (David G. Hackett ed., 1995); RELIGION IN AMERICAN HISTORY: A READER (Jon Butler & Harry S. Stout eds., 1998) (attempting to survey the new historiographical landscape).
10. See RELIGION AND AMERICAN CULTURE (David G. Hackett ed., 1995); RELIGION IN AMERICAN HISTORY: A READER (Jon Butler & Harry S. Stout eds., 1998) (attempting to survey the new historiographical landscape).
11. See JAY P. DOLAN, THE AMERICAN CATHOLIC EXPERIENCE 262-93 (1985) (discussing the evolution of the Catholic parochial school system).
12. The Second Vatican Council was a gathering of the Roman Catholic bishops of the world held in the Vatican between 1962 and 1965. These gatherings are known as ecumenical councils and have been held periodically since the fourth century, C.E. See R.F. Trisco, Vatican Council II, in 14 NEW CATHOLIC ENCYCLOPEDIA 563-72 (The Cath. Univ. of Am. ed., 1967).
13. See THOMAS J. REESE, A FLOCK OF SHEPHERDS: THE NATIONAL CONFERENCE OF CATHOLIC BISHOPS 23-24 (1992).
14. See id.
15. See id. at 26.
16. See id. at 216-17; see also Interview with Mark Chopko, General Counsel, United States Catholic Conference in Washington, D.C. (Nov. 8, 1995).
17. See Office of General Counsel (Mar. 3, 2000), at http://www.usccb.org/ogc/ index.htm.
18. The difficulties surrounding the use of "Catholic" to characterize attributes of Roman Catholics are legion. As in the use of all such umbrella identities, awareness of the pluralisms within that tradition is particularly acute right now. In this Essay, I will use "Catholic" loosely to describe a religious culture defined in large part by the mainstream official teachings of the Roman Catholic Church and "the Church" to refer to that institution.
19. See DOLAN, supra note 8, at 434 (discussing the new understanding of sin in the late twentieth century).
20. T.F. McMahon, Indifferentism, in 7 NEW CATHOLIC ENCYCLOPEDIA, supra note 9, at 469.
21. See 1 RICHARD P. MCBRIEN, CATHOLICISM 274-75 (1980) (noting that religious indifferentism was condemned in Ubi Primum (1824), Mirari Vos Arbitramur (1832), Qui Pluribus (1846), Singulari Quadam (1854), Quanto Conficiamur Moerore (1863), and the Syllabus of Errors (1864)). Indifferentism was also condemned at the First Plenary Council of India (1950). Id. at 275.
22. See 1 RICHARD P. MCBRIEN, CATHOLICISM 274-75 (1980) (noting that religious indifferentism was condemned in Ubi Primum (1824), Mirari Vos Arbitramur (1832), Qui Pluribus (1846), Singulari Quadam (1854), Quanto Conficiamur Moerore (1863), and the Syllabus of Errors (1864)). Indifferentism was also condemned at the First Plenary Council of India (1950). Id. at 275.
23. See 1 RICHARD P. MCBRIEN, CATHOLICISM 274-75 (1980) (noting that religious indifferentism was condemned in Ubi Primum (1824), Mirari Vos Arbitramur (1832), Qui Pluribus (1846), Singulari Quadam (1854), Quanto Conficiamur Moerore (1863), and the Syllabus of Errors (1864)). Indifferentism was also condemned at the First Plenary Council of India (1950). Id. at 275.
24. See 1 RICHARD P. MCBRIEN, CATHOLICISM 274-75 (1980) (noting that religious indifferentism was condemned in Ubi Primum (1824), Mirari Vos Arbitramur (1832), Qui Pluribus (1846), Singulari Quadam (1854), Quanto Conficiamur Moerore (1863), and the Syllabus of Errors (1864)). Indifferentism was also condemned at the First Plenary Council of India (1950). Id. at 275.
25. See 1 RICHARD P. MCBRIEN, CATHOLICISM 274-75 (1980) (noting that religious indifferentism was condemned in Ubi Primum (1824), Mirari Vos Arbitramur (1832), Qui Pluribus (1846), Singulari Quadam (1854), Quanto Conficiamur Moerore (1863), and the Syllabus of Errors (1864)). Indifferentism was also condemned at the First Plenary Council of India (1950). Id. at 275.
26. See 1 RICHARD P. MCBRIEN, CATHOLICISM 274-75 (1980) (noting that religious indifferentism was condemned in Ubi Primum (1824), Mirari Vos Arbitramur (1832), Qui Pluribus (1846), Singulari Quadam (1854), Quanto Conficiamur Moerore (1863), and the Syllabus of Errors (1864)). Indifferentism was also condemned at the First Plenary Council of India (1950). Id. at 275.
27. See 1 RICHARD P. MCBRIEN, CATHOLICISM 274-75 (1980) (noting that religious indifferentism was condemned in Ubi Primum (1824), Mirari Vos Arbitramur (1832), Qui Pluribus (1846), Singulari Quadam (1854), Quanto Conficiamur Moerore (1863), and the Syllabus of Errors (1864)). Indifferentism was also condemned at the First Plenary Council of India (1950). Id. at 275.
28. POPE GREGORY XVI, ON LIBERALISM AND RELIGIOUS INDIFFERENTISM [Mirari Vos Arbitramur] No. 15, excerpted in J.F. MACLEAR, CHURCH AND STATE IN THE MODERN AGE 136-37 (1995).
29. POPE GREGORY XVI, ON LIBERALISM AND RELIGIOUS INDIFFERENTISM [Mirari Vos Arbitramur] No. 15, excerpted in J.F. MACLEAR, CHURCH AND STATE IN THE MODERN AGE 136-37 (1995).
30. POPE JOHN PAUL II, DECLARATION ON THE UNICITY AND SALVIFIC UNIVERSALITY OF JESUS CHRIST AND THE CHURCH [Dominus Iesus] No. 22 (Aug. 6, 2000), available at http://www.vatican.va/roman_curia/congregations/cfaith/documents/rc_con_ cfaith_doc_20000806_dominusiesus_en.html.
31. See id.
32. See, e.g., Derek Cross, Tolerance as a Catholic Doctrine, FIRST THINGS, 1992, at 38-44.
33. SECOND VATICAN ECUMENICAL COUNSEL, DOGMATIC CONSTITUTION ON THE CHURCH [Lumen Gentium], in THE DOCUMENTS OF VATICAN II, at 14 (Walter M. Abbott ed., 1966).
34. SECOND VATICAN ECUMENICAL COUNCIL, DECLARATION ON THE RELATIONSHIP OF THE CHURCH TO NON-CHRISTIAN RELIGIONS [Nostra Aetate], in THE DOCUMENTS OF VATICAN II, supra note 23, at 660.
35. SECOND VATICAN ECUMENICAL COUNCIL, DECREE ON THE CHURCH'S MISSIONARY ACTIVITY [Ad Gentes], in THE DOCUMENTS OF VATICAN II, supra note 23, at 584.
36. SECOND VATICAN ECUMENICAL COUNCIL, PASTORAL CONSTITUTION ON THE CHURCH IN THE MODERN WORLD [Gaudium et Spes], in THE DOCUMENTS OF VATICAN II, supra note 23, at 199.
37. This theology is affirmed in POPE JOHN PAUL II, supra note 20, No. 20-22.
38. SECOND VATICAN ECUMENICAL COUNCIL, DECLARATION ON RELIGIOUS FREEDOM [Dignitatis Humanae], in THE DOCUMENTS OF VATICAN II, supra note 23, at 675.
39. 2 ERNST TROELTSCH, THE SOCIAL TEACHING OF THE CHRISTIAN CHURCHES 993-1013 (Olive Wyon trans., 1950).
40. SECOND VATICAN ECUMENICAL COUNCIL, Dignitatis Humanae, supra note 28.
41. Id. No. 4, in THE DOCUMENTS OF VATICAN II, supra note 23, at 682.
42. A peritus is a theologian officially appointed to advise an ecumenical council. Murray was appointed a peritus in the Second Session of the Council at the urging of Cardinal Spellman.
43. XAVIER RYNN, VATICAN COUNCIL II 458 (1968).
44. See the essays collected in JOHN COURTNEY MURRAY, WE HOLD THESE TRUTHS: CATHOLIC REFLECTIONS ON THE AMERICAN PROPOSITION (1960).
45. James Tunstead Burtchaell, Religious Freedom, in MODERN CATHOLICISM: VATICAN II AND AFTER 122 (Adrian Hastings ed., 1991).
46. See generally MURRAY, supra note 34. For a general introduction to Murray's thinking on religious freedom, see J. Leon Hooper, General Introduction to JOHN COURTNEY MURRAY, RELIGIOUS LIBERTY: CATHOLIC STRUGGLES WITH PLURALISM 11 (J. Leon Hooper ed., 1993). See also KEITH J. PAVLISCHEK, JOHN COURTNEY MURRAY AND THE DILEMMA OF RELIGIOUS TOLERATION (1994).
47. See generally MURRAY, supra note 34. For a general introduction to Murray's thinking on religious freedom, see J. Leon Hooper, General Introduction to JOHN COURTNEY MURRAY, RELIGIOUS LIBERTY: CATHOLIC STRUGGLES WITH PLURALISM 11 (J. Leon Hooper ed., 1993). See also KEITH J. PAVLISCHEK, JOHN COURTNEY MURRAY AND THE DILEMMA OF RELIGIOUS TOLERATION (1994).
48. SECOND VATICAN ECUMENICAL COUNCIL, Nostra Aetate, supra note 24, in THE DOCUMENTS OF VATICAN II, supra note 23, at 661.
49. It is important to emphasize the "doctrinal." American Catholic leaders across the spectrum beginning with John Carroll in the eighteenth century have enthusiastically urged on the Vatican acceptance of the new situation of the Church in the United States with respect to disestablishment and religious liberty. See DOLAN, supra note 8, at 101-24.
50. This tendency is a concern in Dominus Iesus.
51. See Hooper, supra note 36, at 43.
52. See id.
53. See id. at 44.
54. See id. at 40.
55. Id. at 44.
56. Id. at 40-45.
57. Id. at 45.
58. See JOSÉ CASANOVA, PUBLIC RELIGIONS IN THE MODERN WORLD (1994) (reworking the secularization thesis to explain the emergence of public (as opposed to private) religion in modern secular states); see also FRANKLIN I. GAMWELL, THE MEANING OF RELIGIOUS FREEDOM: MODERN POLITICS AND THE DEMOCRATIC RESOLUTION, at ix (1995) (discussing "whether the political principles of religious freedom make sense" by examining views of religious plurality and rationales justifying plurality).
59. See JOSÉ CASANOVA, PUBLIC RELIGIONS IN THE MODERN WORLD (1994) (reworking the secularization thesis to explain the emergence of public (as opposed to private) religion in modern secular states); see also FRANKLIN I. GAMWELL, THE MEANING OF RELIGIOUS FREEDOM: MODERN POLITICS AND THE DEMOCRATIC RESOLUTION, at ix (1995) (discussing "whether the political principles of religious freedom make sense" by examining views of religious plurality and rationales justifying plurality).
60. WILLIAM H. NEWMAN &: PETER L. HALVORSEN, ATLAS OF AMERICAN RELIGION: THE DENOMINATIONAL ERA, 1776-1990, at 69-72 (2000).
61. SUP. CT. R. 37.
62. Samuel Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 YALE L.J. 694 (1963) (giving a history of the use of the amicus brief). This now somewhat dated article remains the most frequently cited authority on the subject.
63. See Leo Pfeffer, Amid in Church-State Litigation, 44 LAW & CONTEMP. PROBS. 83, 83 (1981).
64. Id. at 85.
65. Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. PA. L. REV. 743, 752 (2000).
66. Id.
67. U.S. CONST, amend. I.
68. This "incorporation" was accomplished by using the enumerated rights of the Bill of Rights to supply the detail for the general assertion of rights in the Fourteenth Amendment. Incorporation of the Free Exercise Clause of the First Amendment was accomplished in Cantwell v. Connecticut, 310 U.S. 296 (1940). In Cantwell, a Connecticut law prohibiting door-to-door solicitation was declared unconstitutional, because it violated the free exercise rights of Jehovah's Witnesses. Id. at 307.
69. See Everson v. Bd. of Educ., 330 U.S. 1 (1947). In Everson, the Court, while announcing a very high standard of church-state separation, held constitutional a New Jersey statute reimbursing parents for the cost of busing their children to parochial school, on the ground that children, not religion, benefited from the expenditure of public funds. Id, at 17-18.
70. For a subtle historical exploration of the effect that this delayed incorporation has had on First Amendment jurisprudence, see generally MARK DEWOLFE HOWE, THE GARDEN AND THE WILDERNESS: RELIGION AND GOVERNMENT IN AMERICAN CONSTITUTIONAL HISTORY (1965).
71. For a description of the principal amici organizations filing briefs in religion cases, see Pfeffer, supra note 51, at 86-94. See generally PAUL J. WEBER & W. LANDIS JONES, U.S. RELIGIOUS INTEREST GROUPS: INSTITUTIONAL PROFILES (1994) (discussing 120 religious interest groups).
72. See, e.g., McCollum v. Bd. of Educ., 333 U.S. 203, 229 n.19 (1948) (Frankfurter, J., concurring).
73. See Krislov, supra note 50, at 720-21.
74. 268 U.S. 510 (1925). The Court held in Pierce that parents had a right to send their children to private (in this case, Catholic) schools rather than public ones, provided they met state education standards. Id. at 534-35. Pierce was not a First Amendment case.
75. See supra note 51 for a description of Everson.
76. See Pfeffer, supra note 51, at 93.
77. These larger conclusions are based on a reading of all of the amicus filings of the USCC in the United States Supreme Court. This Essay focuses rather on the most recent ones which will be cited to individually.
78. See, e.g., Abortion Rights Mobilization v. U.S. Catholic Conference, 885 F.2d 1020 (2d Cir. 1989).
79. The 1981 Mission Statement and the NCCB/USCC Goals and Objectives, 1991-96 are reproduced in REESE, supra note 10, at app. A-B. See also USCC website, http://www.usccb.org/chronological.htm.
80. See supra note 65.
81. See, e.g., Brief Amicus Curiae of the United States Catholic Conference in Support of Petitioners at 6-7, Mitchell v. Helms, 530 U.S. 793 (1999) (No. 98-1648); Mark E. Chopko, Intentional Values and the Public Interest - A Plea for Consistency in Church/ State Relations, 39 DEPAUL L. REV. 1143, 1144 (1990). The term "accommodationists" is quoted from ANSON PHELPS STOKES, CHURCH AND STATE IN THE UNITED STATES 556 (1950).
82. See, e.g., Brief Amicus Curiae of the United States Catholic Conference in Support of Petitioners at 6-7, Mitchell v. Helms, 530 U.S. 793 (1999) (No. 98-1648); Mark E. Chopko, Intentional Values and the Public Interest - A Plea for Consistency in Church/ State Relations, 39 DEPAUL L. REV. 1143, 1144 (1990). The term "accommodationists" is quoted from ANSON PHELPS STOKES, CHURCH AND STATE IN THE UNITED STATES 556 (1950).
83. See, e.g., JOHN WITTE, JR., RELIGION AND THE AMERICAN CONSTITUTIONAL EXPERIMENT (2000).
84. See Brief of the United States Catholic Conference as Amici Curiae in Support of the Respondent at 8-12, Boerne v. Flores, 521 U.S. 507 (1996) (No. 95-2074), written by Michael McConnell, Professor of Law at the University of Utah. This is a large and growing body of literature. Scholarly contributions to this effort include ROBERT L. CORD, SEPARATION OF CHURCH AND STATE: HISTORICAL FACT AND CURRENT FICTION (1982); WITTE, supra note 70; and Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409 (1990).
85. See Brief of the United States Catholic Conference as Amici Curiae in Support of the Respondent at 8-12, Boerne v. Flores, 521 U.S. 507 (1996) (No. 95-2074), written by Michael McConnell, Professor of Law at the University of Utah. This is a large and growing body of literature. Scholarly contributions to this effort include ROBERT L. CORD, SEPARATION OF CHURCH AND STATE: HISTORICAL FACT AND CURRENT FICTION (1982); WITTE, supra note 70; and Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409 (1990).
86. See Wallace v. Jaffree, 472 U.S. 38, 91 (1985) (Rehnquist, J., dissenting).
87. See Mark Curriden, Defenders of the Faith, A.B.A., Dec. 1994, at 86, 89.
88. CHESTER JAMES ANTIEAU, ARTHUR T. DOWNEY & EDWARD C. ROBERTS, FREEDOM FROM FEDERAL ESTABLISHMENT: FORMATION AND EARLY HISTORY OF THE FIRST AMENDMENT RELIGION CLAUSES (1964).
89. FIRST THINGS: A JOURNAL OF RELIGION AND PUBLIC LIFE, is published in New York. The first issue was published in 1990.
90. See, e.g., Brief of the United States Catholic Conference as Amicus Curiae in Support of Neither Party at 4-6, Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993) (No. 91-948); Brief of the United States Catholic Conference as Amicus Curiae in Support of Petitioners at 17-19, Lee v. Weisman, 505 U.S. 577 (1992) (No. 90-1014); Brief of the United States Catholic Conference as Amicus Curiae in Support of Appellant at 7-12, Bowen v. Kendrick, 487 U.S. 589 (1988) (No. 87-253); Brief of the United States Catholic Conference as Amicus Curiae in Support of Appellants at 7-10, Corp. of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) (No. 86-179); Brief of the United States Catholic Conference as Amicus Curiae in Support of Petitioners at 7-16, Sch. Dist. v. Ball, 473 U.S. 373 (1985) (No. 83-990); Brief of the United States Catholic Conference as Amicus Curiae in Support of Respondents at 7-13, Mueller v. Allen, 463 U.S. 388 (1983) (No. 82-195); Brief of the United States Catholic Conference as Amicus Curiae in Support of Respondents at 3-5, Widmar v. Vincent, 454 U.S. 263 (1981) (No. 80-689).
91. Brief of the United States Catholic Conference as Amicus Curiae in Support of Petitioners at 9, Bender v. Williamsport Area Sch. Dist., 475 U. S. 534 (1986) (No. 84-773).
92. Id.
93. See, e.g., Brief of the United States Catholic Conference as Amicus Curiae in Support of Appellant at 2, Bowen (No. 87-253).
94. See Employment Div. v. Smith, 494 U.S. 872, 876-78 (1990).
95. These two efforts are related because religion scholars must depend on theologians to articulate the theology of their communities and theologians must depend on scholars of religion to describe and analyze the plurality of human religious experience. Both are needed in constructing a public conversation about the meaning of the First Amendment. For two recent descriptions of these difficulties, see CRITICAL TERMS FOR RELIGIOUS STUDIES (Mark C. Taylor ed., 1998); Robert Orsi, Everyday Miracles: The Study of Lived Religion, in LIVED RELIGION IN AMERICA 3, 5-6 (David D. Hall ed., 1997).
96. These two efforts are related because religion scholars must depend on theologians to articulate the theology of their communities and theologians must depend on scholars of religion to describe and analyze the plurality of human religious experience. Both are needed in constructing a public conversation about the meaning of the First Amendment. For two recent descriptions of these difficulties, see CRITICAL TERMS FOR RELIGIOUS STUDIES (Mark C. Taylor ed., 1998); Robert Orsi, Everyday Miracles: The Study of Lived Religion, in LIVED RELIGION IN AMERICA 3, 5-6 (David D. Hall ed., 1997).
97. 42 U.S.C. §§ 2000bb to bb-4 (1994).
98. See, e.g., Florida Religious Freedom Restoration Act, FLA. STAT. ANN. § 761.03 (West 2000). Other state Religious Freedom Restoration Acts are cited in Brief of Appellants, Warner v. City of Boca Raton, 64 F. Supp. 2d 1272 (S.D. Fla. 1999) (No. 99-13730-EE).
99. 494 U.S. 872 (1990).
100. Id. at 890.
101. Id. at 882.
102. Arguably the roots of this situation go back to Justice Black's equation of religion and non-religion in Everson v. Board of Education, 330 U.S. 1, 15 (1947).
103. 42 U.S.C. §§ 2000bb to bb-4 (1994). RFRA was subsequently held to be an unconstitutional congressional usurpation of power in City of Boerne v. Flores, 521 U.S. 507, 536 (1997).
104. Curriden, supra note 73, at 86, 87 (quoting Alan Sears, President of the Alliance Defense Fund).
105. Interview with Mark Chopko, General Counsel, United States Catholic Conference, in Washington, D.C. (June 4, 1996).
106. Id.
107. Id.
108. Brief Amicus Curiae of the United States Catholic Conference in Support of Petitioners, Agostini v. Felton, 521 U.S. 203 (1997) (No. 96-552).
109. Brief Amicus Curiae of the United States Catholic Conference in Support of Petitioners, Mitchell v. Helms, 530 U.S. 793 (2000) (No. 98-1648).
110. 20 U.S.C.A. §§ 6301-6514 (West 2000 & Supp. 2000).
111. 473 U.S. 402, 414 (1985).
112. Pub. L. No. 97-35, 95 Stat. 357, 463-82 (codified as amended at 20 U.S.C. §§ 7301-7373 (1994 & Supp. IV 1998)).
113. Lemon v. Kurtzman, 403 U.S. 602 (1971).
114. See Brief Amicus Curiae of the United States Catholic Conference in Support of Petitioners at 3, 25-28, Agostini v. Felton, 521 U.S. 203 (1997) (No. 96-552).
115. Id. at 3, 16-17, 21-25.
116. Id. at 3.
117. Id. at 4.
118. Agostini v. Felton, 521 U.S. 203, 230, 232, 234-35 (1997).
119. See PHILIP B. KURLAND, RELIGION AND THE LAW: OF CHURCH AND STATE AND THE SUPREME COURT 112 (1961).
120. See Brief of the United States Catholic Conference as Amicus Curiae in Support of the Respondents at 8-12, Boerne v. Flores, 521 U.S. 507 (1996) (No. 95-2074); Brief Amicus Curiae of the United States Catholic Conference in Support of the Petitioners at 14-25, Agostini (No. 96-552).
121. See Brief Amicus Curiae of the United States Catholic Conference in Support of Petitioners at 14-25, Agostini (No. 96-552).
122. See Brief of the United States Catholic Conference as Amicus Curiae in Support of the Respondents, at 8-12, Boerne (No. 95-2074).
123. See Brief Amicus Curiae of the United States Catholic Conference in Support of the Petitioners at 14-25, Agostini (No. 96-552).
124. See Brief Amicus Curiae of the United States Catholic Conference in Support of Petitioners at 16-17, Mitchell v. Helms, 530 U.S. 793 (2000) (No. 98-1648).
125. Id. at 6-12.
126. Id. at 18.
127. 465 U.S. 668 (1984).
128. Id. at 712 (Brennan, J., dissenting).
129. Id. at 727 (Blackmun, J., dissenting).
130. See Mitchell v. Helms, 120 S. Ct. at 2530, 2536-56 (2000) (plurality opinion).
131. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
132. See id.
133. Mitchell, 120 S. Ct. 2541.
134. Everson v. Bd. of Educ., 380 U.S. 1, 14-17 (1947).
135. Mitchell, 120 S. Ct. at 2541 (Souter, J., dissenting).
136. See id. at 2588-89, n.17; 2591, n.19; 2596, n.28.
137. Id. at 2582-83; see 1983 CODE c.798 (directing parents to entrust children to Roman Catholic schools or otherwise provide for Roman Catholic education), c.800, § 2 (requiring the faithful to support establishment and maintenance of Roman Catholic schools), cc.802, 804 (requiring diocesan bishop to establish and regulate schools "imparting an education imbued with the Christian spirit"), reprinted in THE CODE OF CANON LAW: A TEXT AND COMMENTARY 566-68 (James A. Coriden, Thomas J. Green, & Donald E. Heintschel eds., 1985).
138. Mitchell, 120 S. Ct. at 2597 (Souter, J., dissenting) (footnotes omitted).
139. See id. at n.31 (Souter, J., dissenting).
140. See Brief Amicus Curiae of the United States Catholic Conference in Support of Petitioners at 14-25, Agostini v. Felton, 521 U.S. 203 (1997) (No. 96-552).
141. See id. at 14-17.
142. See id. at 15.
143. See id. at 21-25.
144. Id. at 15-16 (citations omitted).
145. See Pfeffer, supra note 51, at 96.
146. See RICHARD J. GELM, POLITICS AND RELIGIOUS AUTHORITY: AMERICAN CATHOLICS SINCE THE SECOND VATICAN COUNCIL 84 (1994).
147. The new de facto establishment was first described by Will Herberg in his classic PROTESTANT, CATHOLIC, JEW: AN ESSAY IN AMERICAN RELIGIOUS SOCIOLOGY 247-69 (1955).
148. Interview with Mark Chopko, General Counsel, United States Catholic Conference in Washington, D.C. (Nov. 8, 1995).
149. 515 U.S. 819, 839 (1995).
150. See Everson v. Bd. of Educ., 380 U.S. 1, 14-17 (1947).
151. HOWE, supra note 58.
152. See id. at 71-73, 101-08.
153. See id. at 136-37.
154. See id. at 149-51.
155. See, e.g., J.R. POLE, THE PURSUIT OF EQUALITY IN AMERICAN HISTORY (2d ed. 1993).
156. Mitchell v. Helms, 120 S. Ct. at 2530, 2578 (2000) (Souter, J., dissenting).
157. See id. at 2581-82.
158. Id.
159. Brief for Rosenberger at 17, Rosenberger v. Univ. of Va., 515 U.S. 819 (1994) (No. 94-329).
160. See id. at 15-22.
161. See SYDNEY AHLSHOM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE 360-84 (1972).
162. SIDNEY MEAD, THE LIVELY EXPERIMENT: THE SHAPING OF CHRISTIANITY IN AMERICA 103-87 (1963).
163. See CASANOVA, supra note 47, at 167-207.