SUPREME COURT OF THE UNITED STATES - No. 94-329 - RONALD W. ROSENBERGER, et al., PETITIONE

SUPREME COURT OF THE UNITED STATES
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No. 94-329
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RONALD W. ROSENBERGER, et al., PETITIONERS
v. RECTOR and VISITORS OF THE UNIVERSITY
OF VIRGINIA et al.
on writ of certiorari to the united states court
of appeals for the fourth circuit
[June 29, 1995]

  Justice Thomas, concurring.
  I agree with the Court's opinion and join it in full, but
I write separately to express my disagreement with the
historical analysis put forward by the dissent.  Although
the dissent starts down the right path in consulting the
original meaning of the Establishment Clause, its
misleading application of history yields a principle that
is inconsistent with our Nation's long tradition of
allowing religious adherents to participate on equal
terms in neutral government programs.
  Even assuming that the Virginia debate on the so-
called -Assessment Controversy- was indicative of the
principles embodied in the Establishment Clause, this
incident hardly compels the dissent's conclusion that
government must actively discriminate against religion. 
The dissent's historical discussion glosses over the
fundamental characteristic of the Virginia assessment
bill that sparked the controversy: The assessment was
to be imposed for the support of clergy in the perfor-
mance of their function of teaching religion.  Thus, the
-Bill Establishing a Provision for Teachers of the
Christian Religion- provided for the collection of a
specific tax, the proceeds of which were to be appro-
priated -by the Vestries, Elders, or Directors of each
religious society . . . to a provision for a Minister or
Teacher of the Gospel of their denomination, or the
providing places of divine worship, and to none other
use whatsoever.-  See Everson v. Board of Ed. of Ewing,
330 U. S. 1, 74 (1947) (appendix to dissent of Rutledge,
J.).
  James Madison's Memorial and Remonstrance Against
Religious Assessments (hereinafter Madison's Remon-
strance) must be understood in this context.  Contrary
to the dissent's suggestion, Madison's objection to the
assessment bill did not rest on the premise that reli-
gious entities may never participate on equal terms in
neutral government programs.  Nor did Madison em-
brace the argument that forms the linchpin of the
dissent: that monetary subsidies are constitutionally
different from other neutral benefits programs.  Instead,
Madison's comments are more consistent with the
neutrality principle that the dissent inexplicably dis-
cards.  According to Madison, the Virginia assessment
was flawed because it -violate[d] that equality which
ought to be the basis of every law.-  Madison's Remon-
strance -4, reprinted in Everson, supra, at 66 (appendix
to dissent of Rutledge, J.).  The assessment violated the
-equality- principle not because it allowed religious
groups to participate in a generally available government
program, but because the bill singled out religious
entities for special benefits.  See ibid. (arguing that the
assessment violated the equality principle -by subjecting
some to peculiar burdens- and -by granting to others
peculiar exemptions-).
  Legal commentators have disagreed about the histori-
cal lesson to take from the Assessment Controversy. 
For some, the experience in Virginia is consistent with
the view that the Framers saw the Establishment
Clause simply as a prohibition on governmental prefer-
ences for some religious faiths over others.  See R. Cord,
Separation of Church and State: Historical Fact and
Current Fiction 20-23 (1982); Smith, Getting Off on the
Wrong Foot and Back on Again: A Reexamination of the
History of the Framing of the Religion Clauses of the
First Amendment and a Critique of the Reynolds and
Everson Decisions, 20 Wake Forest L. Rev. 569, 590-591
(1984).  Other commentators have rejected this view,
concluding that the Establishment Clause forbids not
only government preferences for some religious sects
over others, but also government preferences for religion
over irreligion.  See, e.g., Laycock, -Nonpreferential- Aid
to Religion: A False Claim About Original Intent, 27
Wm. & Mary L. Rev. 875, 875 (1986).
  I find much to commend the former view.  Madison's
focus on the preferential nature of the assessment was
not restricted to the fourth paragraph of the Remon-
strance discussed above.  The funding provided by the
Virginia assessment was to be extended only to Chris-
tian sects, and the Remonstrance seized on this defect:
-Who does not see that the same authority which
can establish Christianity, in exclusion of all other
Religions, may establish with the same ease any
particular sect of Christians, in exclusion of all other
Sects.-  Madison's Remonstrance -3, reprinted in
Everson, supra, at 65.
In addition to the third and fourth paragraphs of the
Remonstrance, -Madison's seventh, ninth, eleventh, and
twelfth arguments all speak, in some way, to the same
intolerance, bigotry, unenlightenment, and persecution
that had generally resulted from previous exclusive
religious establishments.-  Cord, supra, at 21.  The
conclusion that Madison saw the principle of nonestab-
lishment as barring governmental preferences for
particular religious faiths seems especially clear in light
of statements he made in the more-relevant context of
the House debates on the First Amendment.  See
Wallace v. Jaffree, 472 U. S. 38, 98 (1985) (Rehnquist,
J., dissenting) (Madison's views -as reflected by actions
on the floor of the House in 1789, [indicate] that he saw
the [First] Amendment as designed to prohibit the
establishment of a national religion, and perhaps to
prevent discrimination among sects,- but not -as requir-
ing neutrality on the part of government between
religion and irreligion-).  Moreover, even if more extreme
notions of the separation of church and state can be
attributed to Madison, many of them clearly stem from
-arguments reflecting the concepts of natural law,
natural rights, and the social contract between govern-
ment and a civil society,- Cord, supra, at 22, rather than
the principle of nonestablishment in the Constitution. 
In any event, the views of one man do not establish the
original understanding of the First Amendment.
  But resolution of this debate is not necessary to decide
this case.  Under any understanding of the Assessment
Controversy, the history cited by the dissent cannot
support the conclusion that the Establishment Clause
-categorically condemn[s] state programs directly aiding
religious activity- when that aid is part of a neutral
program available to a wide array of beneficiaries.  Post,
at 13.  Even if Madison believed that the principle of
nonestablishment of religion precluded government
financial support for religion per se (in the sense of
government benefits specifically targeting religion), there
is no indication that at the time of the framing he took
the dissent's extreme view that the government must
discriminate against religious adherents by excluding
them from more generally available financial subsidies.
  In fact, Madison's own early legislative proposals cut
against the dissent's suggestion.  In 1776, when Vir-
ginia's Revolutionary Convention was drafting its
Declaration of Rights, Madison prepared an amendment
that would have disestablished the Anglican Church. 
This amendment (which went too far for the Convention
and was not adopted) is not nearly as sweeping as the
dissent's version of disestablishment; Madison merely
wanted the Convention to declare that -no man or class
of men ought, on account of religion[,] to be invested
with peculiar emoluments or privileges . . . .-  Madison's
Amendments to the Declaration of Rights (May 29-June
12, 1776), in 1 Papers of James Madison 174 (W.
Hutchinson & W. Rachal eds. 1962) (emphasis added). 
Likewise, Madison's Remonstrance stressed that -just
government- is -best supported by protecting every
citizen in the enjoyment of his Religion with the same
equal hand which protects his person and his property;
by neither invading the equal rights of any Sect, nor
suffering any Sect to invade those of another.-  Madi-
son's Remonstrance -8, reprinted in Everson, supra, at
68; cf. Terrett v. Taylor, 9 Cranch 43, 49 (1815) (holding
that the Virginia constitution did not prevent the
government from -aiding the votaries of every sect to
. . . perform their own religious duties,- or from -estab-
lishing funds for the support of ministers, for public
charities, for the endowment of churches, or for the
sepulture of the dead-).
  Stripped of its flawed historical premise, the dissent's
argument is reduced to the claim that our Establishment
Clause jurisprudence permits neutrality in the context
of access to government facilities but requires discrimi-
nation in access to government funds.  The dissent
purports to locate the prohibition against -direct public
funding- at the -heart- of the Establishment Clause, see
post, at 17, but this conclusion fails to confront historical
examples of funding that date back to the time of the
founding.  To take but one famous example, both Houses
of the First Congress elected chaplains, see S. Jour., 1st
Cong., 1st Sess., 10 (1820 ed.); H. R. Jour., 1st Cong.,
1st Sess., 26 (1826 ed.), and that Congress enacted
legislation providing for an annual salary of $500 to be
paid out of the Treasury, see Act of Sept. 22, 1789, ch.
17, 4, 1 Stat. 70, 71.  Madison himself was a member
of the committee that recommended the chaplain system
in the House.  See H. R. Jour., at 11-12; 1 Annals of
Cong. 891 (1789); Cord, supra, at 25.  This same system
of -direct public funding- of congressional chaplains has
-continued without interruption ever since that early
session of Congress.-  Marsh v. Chambers, 463 U. S.
783, 788 (1983).
  The historical evidence of government support for
religious entities through property tax exemptions is also
overwhelming.  As the dissent concedes, property tax
exemptions for religious bodies -have been in place for
over 200 years without disruption to the interests
represented by the Establishment Clause.-  Post, at 20,
n. 7 (citing Walz v. Tax Comm'n of New York City, 397
U. S. 664, 676-680 (1970)).  In my view, the dissent's
acceptance of this tradition puts to rest the notion that
the Establishment Clause bars monetary aid to religious
groups even when the aid is equally available to other
groups.  A tax exemption in many cases is economically
and functionally indistinguishable from a direct mone-
tary subsidy.  In one instance, the government relieves
religious entities (along with others) of a generally
applicable tax; in the other, it relieves religious entities
(along with others) of some or all of the burden of that
tax by returning it in the form of a cash subsidy. 
Whether the benefit is provided at the front or back end
of the taxation process, the financial aid to religious
groups is undeniable.  The analysis under the Establish-
ment Clause must also be the same: -Few concepts are
more deeply embedded in the fabric of our national life,
beginning with pre-Revolutionary colonial times, than for
the government to exercise at the very least this kind of
benevolent neutrality toward churches and religious
exercise . . . .-  Walz, supra, at 676-677.
  Consistent application of the dissent's -no-aid- princi-
ple would require that -`a church could not be protected
by the police and fire departments, or have its public
sidewalk kept in repair.'-  Zobrest v. Catalina Foothills
School Dist., 509 U. S. ___, ___ (1993) (slip op., at 6)
(quoting Widmar v. Vincent, 454 U. S. 263, 274-275
(1981)).  The dissent admits that -evenhandedness may
become important to ensuring that religious interests are
not inhibited.-  Post, at 18, n. 5.  Surely the dissent
must concede, however, that the same result should
obtain whether the government provides the populace
with fire protection by reimbursing the costs of smoke
detectors and overhead sprinkler systems or by estab-
lishing a public fire department.  If churches may
benefit on equal terms with other groups in the latter
program-that is, if a public fire department may extin-
guish fires at churches-then they may also benefit on
equal terms in the former program.
  Though our Establishment Clause jurisprudence is in
hopeless disarray, this case provides an opportunity to
reaffirm one basic principle that has enjoyed an unchar-
acteristic degree of consensus: The Clause does not
compel the exclusion of religious groups from govern-
ment benefits programs that are generally available to
a broad class of participants.  See Lamb's Chapel v.
Center Moriches Union Free School Dist., 508 U. S. ___
(1993); Zobrest, supra; Board of Ed. of Westside Commu-
nity Schools (Dist. 66) v. Mergens, 496 U. S. 226 (1990);
Texas Monthly, Inc. v. Bullock, 489 U. S. 1 (1989);
Witters v. Washington Dept. of Services for Blind, 474
U. S. 481 (1986); Mueller v. Allen, 463 U. S. 388 (1983);
Widmar, supra.  Under the dissent's view, however, the
University of Virginia may provide neutral access to the
University's own printing press, but it may not provide
the same service when the press is owned by a third
party.  Not surprisingly, the dissent offers no logical
justification for this conclusion, and none is evident in
the text or original meaning of the First Amendment.
  If the Establishment Clause is offended when religious
adherents benefit from neutral programs such as the
University of Virginia's Student Activities Fund, it must
also be offended when they receive the same benefits in
the form of in-kind subsidies.  The constitutional
demands of the Establishment Clause may be judged
against either a baseline of -neutrality- or a baseline of
-no aid to religion,- but the appropriate baseline surely
cannot depend on the fortuitous circumstances surround-
ing the form of aid.  The contrary rule would lead to
absurd results that would jettison centuries of practice
respecting the right of religious adherents to participate
on neutral terms in a wide variety of government-funded
programs.
  Our Nation's tradition of allowing religious adherents
to participate in evenhanded government programs is
hardly limited to the class of -essential public benefits-
identified by the dissent.  See post, at 18, n. 5.  A
broader tradition can be traced at least as far back as
the First Congress, which ratified the Northwest Ordi-
nance of 1787.  See Act of Aug. 7, 1789, ch. 8, 1 Stat.
50.  Article III of that famous enactment of the Confed-
eration Congress had provided: -Religion, morality, and
knowledge . . . being necessary to good government and
the happiness of mankind, schools and the means of
learning shall forever be encouraged.-  Id., at 52, n. (a). 
Congress subsequently set aside federal lands in the
Northwest Territory and other territories for the use of
schools.  See, e.g., Act of Mar. 3, 1803, ch. 21, 1, 2
Stat. 225-226; Act of Mar. 26, 1804, ch. 35, 5, 2 Stat.
279; Act of Feb. 15, 1811, ch. 14, 10, 2 Stat. 621; Act
of Apr. 18, 1818, ch. 67, 6, 3 Stat. 430; Act of Apr. 20,
1818, ch. 126, 2, 3 Stat. 467.  Many of the schools that
enjoyed the benefits of these land grants undoubtedly
were church-affiliated sectarian institutions as there was
no requirement that the schools be -public.-  See C.
Antieau, A. Downey, & E. Roberts, Freedom From
Federal Establishment, Formation and Early History of
the First Amendment Religion Clauses 163 (1964). 
Nevertheless, early Congresses found no problem with
the provision of such neutral benefits.  See also id.,
at 174 (noting that -almost universally[,] Americans
from 1789 to 1825 accepted and practiced governmental
aid to religion and religiously oriented educational
institutions-).
  Numerous other government benefits traditionally have
been available to religious adherents on neutral terms. 
Several examples may be found in the work of early
Congresses, including copyright protection for -the
author and authors of any map, chart, book or books,-
Act of May 31, 1790, ch. 15, 1, 1 Stat. 124, 124, and a
privilege allowing -every printer of newspapers [to] send
one paper to each and every other printer of newspapers
within the United States, free of postage,- Act of Feb.
20, 1792, ch. 7, 21, 1 Stat. 232, 238.  Neither of these
laws made any exclusion for the numerous authors or
printers who manifested a belief in or about a deity.
  Thus, history provides an answer for the constitutional
question posed by this case, but it is not the one given
by the dissent.  The dissent identifies no evidence that
the Framers intended to disable religious entities from
participating on neutral terms in evenhanded govern-
ment programs.  The evidence that does exist points in
the opposite direction and provides ample support for
today's decision.