Rosenfeld Susan. Encyclopedia of American Historical Documents

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Have the Effect of Changing any Rule of the House of

Representatives.—If the Committee on the Budget of the

House of Representatives reports any concurrent resolu-

tion on the budget which includes any procedure or mat-

ter which has the effect of changing any rule of the House

of Representatives, such concurrent resolution shall then

be referred to the Committee on Rules with instructions to

report it within five calendar days (not counting any day on

which the House is not in session). The Committee on

Rules shall have jurisdiction to report any concurrent res-

olution referred to it under this paragraph with an amend-

ment or amendments changing or striking out any such

procedure or matter.

(d) Views and Estimates of Other Committees.—On

or before February 25 of each year, each committee of the

House of Representatives having legislative jurisdiction

shall submit to the Committee on the Budget of the House

and each committee of the Senate having legislative juris-

diction shall submit to the Committee on the Budget of

the Senate its views and estimates (as determined by the

committee making such submission) with respect to all

matters . . . which relate to matters within the jurisdiction

or functions of such committee. The Joint Economic Com-

mittee shall submit to the Committees on the Budget of

both Houses its recommendations as to the fiscal policy

appropriate to the goals of the Employment Act of 1946.

Any other committee of the House of Representatives or

the Senate may submit to the Committee on the Budget of

its House, and any joint committee of the Congress may

submit to the Committees on the Budget of both Houses,

its views and estimates with respect to all matters. . .which

relate to matters within its jurisdiction or functions.

(e) Hearings and Report.—In developing of the con-

current resolution on the budget referred to in subsection

(a) for each fiscal year, the Committee on the Budget of

each House shall hold hearings and shall receive testimony

from Members of Congress and such appropriate repre-

sentatives of Federal departments and agencies, the gen-

eral public, and national organizations as the committee

deems desirable. Each of the recommendations as to

short-term and medium-term goals set forth in the report

submitted by the members of the Joint Economic Com-

mittee . . . may be considered by the Committee on the

Budget of each House as part of its consideration of such

concurrent resolution, and its report may reflect its views

thereon, including its views on how the estimates of rev-

enues and levels of budget authority and outlays set forth

in such concurrent resolution are designed to achieve any

goals it is recommending. The report accompanying

such concurrent resolution shall include, but not be lim-

ited to—

(1) a comparison of revenues estimated by the com-

mittee with those estimated in the budget submitted by

the President;

(2) a comparison of the appropriate levels of total bud-

get outlays and total new budget authority, total direct loan

obligations, total primary loan guarantee commitments,

as set forth in such concurrent resolution, with those

estimated or requested in the budget submitted by the

President;

(3) with respect to each major functional category, an

estimate of budget outlays and an appropriate level of new

budget authority for all proposed programs and for all

existing programs (including renewals thereof), with the

estimate and level for existing programs being divided

between permanent authority and funds provided in

appropriation Acts, and with each such division being sub-

divided between controllable amounts and all other

amounts;

(4) an allocation of the level of Federal revenues rec-

ommended in the concurrent resolution among the major

sources of such revenues;

(5) the economic assumptions and objectives which

underlie each of the matters set forth in such concurrent

resolution and any alternative economic assumptions and

objectives which the committee considered;

(6) projections (not limited to the following), for the

period of five fiscal years beginning with such fiscal year, of

the estimated levels of total budget outlays and total new

budget authority, the estimated revenues to be received,

and the estimated surplus or deficit, if any, for each fiscal

year in such period, and the estimated levels of tax expen-

ditures (the tax expenditures budget) by major functional

categories;

(7) a statement of any significant changes in the pro-

posed levels of Federal assistance to State and local gov-

ernments;

(8) information, data, and comparisons indicating the

manner in which, and the basis on which, the committee

determined each of the matters set forth in the concurrent

resolution; and

* * *

(g) Common Economic Assumptions.—The joint

explanatory statement accompanying a conference report

on a concurrent resolution on the budget shall set forth the

common economic assumptions upon which such joint

statement and conference report are based, or upon which

any amendment contained in the joint explanatory state-

ment to be proposed by the conferees in the case of tech-

nical disagreement is based.

(h) Budget Committees Consultation With Commit-

tees.—The Committee on the Budget of the House of

1722 ERA 10: Contemporary United States

Economic and Technological Developments 1723

Representatives shall consult with the committees of its

House having legislative jurisdiction during the prepara-

tion, consideration, and enforcement of the concurrent

resolution on the budget with respect to all matters which

relate to the jurisdiction or functions of such committees.

(i) Maximum Deficit Amount May Not Be

Exceeded.—

(1)(A) Except as provided in paragraph (2), it shall

not be in order in either the House of Representatives or

the Senate to consider any concurrent resolution on the

budget for a fiscal year under this section, or to consider

any amendment to such a concurrent resolution, or to

consider a conference report on such a concurrent reso-

lution, if the level of total budget outlays for such fiscal

year that is set forth in such concurrent resolution or con-

ference report exceeds the recommended level of Fed-

eral revenues set forth for that year by an amount that is

greater than the maximum deficit amount for such fiscal

year . . ., or if the adoption of such amendment would

result in a level of total budget outlays for that fiscal

year which exceeds the recommended level of Fe-

deral revenues for that fiscal year, by an amount that is

greater than the maximum deficit amount for such fiscal

year. . . .

* * *

Concurrent Resolution on the Budget Must be Adopted

before Legislation Providing New Budget Authority,

New Spending Authority, New Credit Authority, or

Changes in Revenues or the Public Debt Limit is Con-

sidered

Sec. 303. (a) In General.—It shall not be in order in either

the House of Representatives or the Senate to consider

any bill or resolution (or amendment thereto) as reported

to the House or Senate which provides—

(1) new budget authority for a fiscal year;

(2) an increase or decrease in revenues to become

effective during a fiscal year;

(3) an increase or decrease in the public debt limit to

become effective during a fiscal year;

(4) new entitlement authority to become effective

during a fiscal year; or

(5) new credit authority for a fiscal year,

until the concurrent resolution on the budget for such

fiscal year has been agreed to,. . .

See also

RONALD REAGAN

TAX REDUCTION ADDRESS

1981;

TAX REFORM ACT

, 1986.

Source:

Statutes at Large, Vol. 99, pp. 1,038–1,101.

Ronald Reagan,

Challenger Disaster Address, 1986

President Ronald Reagan was known as the Great Communi-

cator. In this address following the January 28, 1986, explo-

sion that destroyed the space shuttle

Challenger

he comforted

the nation after this tragedy. The first space shuttle took off in

1981. By 1986, space shuttle lift-offs had become so routine

that only one national channel gave it live coverage. The

Challenger

’s seven-member crew included New Hampshire

schoolteacher S. Christa McAuliffe, who had won a national

competition to ride aboard the shuttle and broadcast lessons to

America’s children. Her class was watching on television

when the explosion occurred, shortly after takeoff.

Reagan announced that he was postponing his annual

State of the Union message, which had been scheduled for

that evening, out of respect and mourning for the astronauts

who had been killed in the explosion. He reminded Ameri-

cans that they had grown accustomed to the space program

and had perhaps forgotten the dangers associated with it. He

told the schoolchildren that exploration required bravery, and

he restated his commitment to the continuance of America’s

space program. His concluding quotation came from a poem

written by an American airman killed in World War II.

Lift-off had been postponed several times because Flo-

rida, where the shuttle was housed, was experiencing unusu-

ally frigid weather. The explosion was later blamed on an

o-ring that had hardened in the cold. Despite engineers’ objec-

tions, National Aeronautic and Space Administration (NASA)

officials had decided that the danger posed by the temperature

was not firmly established and authorized lift-off despite the

objections of some NASA engineers. The disaster halted the

space shuttle program for over two years. It resumed Septem-

ber 29, 1988, with the flight of the Space Shuttle

Discovery

Compounded by a number of other setbacks, NASA never

regained the reputation (or the appropriations) it garnered with

its successful moon program.

________________________

_______________________

Ladies and gentlemen, I’d planned to speak to you tonight

to report on the state of the Union, but the events of ear-

lier today have led me to change those plans. Today is a day

for mourning and remembering. Nancy and I are pained to

the core by the tragedy of the shuttle Challenger. We know

we share this pain with all of the people of our country.

This is truly a national loss.

Nineteen years ago, almost to the day, we lost three

astronauts in a terrible accident on the ground. But we’ve

never lost an astronaut in flight; we’ve never had a tragedy

like this. And perhaps we’ve forgotten the courage it took

for the crew of the shuttle. But they, the Challenger Seven,

were aware of the dangers, but overcame them and did

their jobs brilliantly. We mourn seven heroes: Michael

Smith, Dick Scobee, Judith Resnik, Ronald McNair, Elli-

son Onizuka, Gregory Jarvis, and Christa McAuliffe. We

mourn their loss as a nation together.

For the families of the seven, we cannot bear, as you

do, the full impact of this tragedy. But we feel the loss, and

we’re thinking about you so very much. Your loved ones

were daring and brave, and they had that special grace,

that special spirit that says, “Give me a challenge, and I’ll

meet it with joy.” They had a hunger to explore the uni-

verse and discover its truths. They wished to serve, and

they did. They served all of us. We’ve grown used to won-

ders in this century. It’s hard to dazzle us. But for 25 years

the United States space program has been doing just that.

We’ve grown used to the idea of space, and perhaps we

forget that we’ve only just begun. We’re still pioneers.

They, the members of the Challenger crew, were pioneers.

And I want to say something to the schoolchildren of

America who were watching the live coverage of the

shuttle’s take-off. I know it is hard to understand, but

sometimes painful things like this happen. It’s all part of

the process of exploration and discovery. It’s all part of tak-

ing a chance and expanding man’s horizons. The future

doesn’t belong to the fainthearted; it belongs to the brave.

The Challenger crew was pulling us into the future, and

we’ll continue to follow them.

I’ve always had great faith in and respect for our space

program, and what happened today does nothing to dimin-

ish it. We don’t hide our space program. We don’t keep

secrets and cover things up. We do it all up front and in

public. That’s the way freedom is, and we wouldn’t change

it for a minute. We’ll continue our quest in space. There

will be more shuttle flights and more shuttle crews and,

yes, more volunteers, more civilians, more teachers in

space. Nothing ends here; our hopes and our journeys con-

tinue. I want to add that I wish I could talk to every man

and woman who works for NASA or who worked on this

mission and tell them: “Your dedication and professional-

ism have moved and impressed us for decades. And we

know of your anguish. We share it.”

There’s a coincidence today. On this day 390 years ago,

the great explorer Sir Francis Drake died aboard ship off

the coast of Panama. In his lifetime the great frontiers

were the oceans, and an historian later said, “He lived by

the sea, died on it, and was buried in it.” Well, today we

can say of the Challenger crew: Their dedication was, like

Drake’s, complete.

The crew of the space shuttle Challenger honored us

by the manner in which they lived their lives. We will

never forget them, nor the last time we saw them, this

morning, as they prepared for their journey and waved

good-bye and “slipped the surly bonds of earth” to “touch

the face of God.”

Source:

Public Papers of the Presidents of the United States: Ronald Rea-

gan, 1981. Washington, D.C.: Government Printing Office,

1982–91. pp. 664–668.

Communications Decency Act of 1996

Federal law devised to regulate the distribution of porno-

graphic material over the Internet. It was enacted February 8,

1996, as part of the comprehensive Telecommunications Act,

a legislative overhaul of the nation’s telecommunications laws.

The Decency Act criminalized transmission of indecent

material via computer on-line services that could be accessed

by children. Under its terms, the distribution over the Internet

of indecent material to minors would be a felony punishable

by up to two years in prison and a $100,000 fine. The mea-

sure was a controversial item in the congressional debate over

the telecommunications overhaul. Its supporters argued that

the law was needed to protect children from the rapidly grow-

ing volume of indecent material on the unregulated Internet.

Opponents denounced the act as government-sanctioned cen-

sorship and a blow to free expression. Deciding on a legal

challenge to the law, a three-judge federal panel ruled in June

1996 that the Decency Act violated free speech rights pro-

tected under the Constitution’s First Amendment. The panel,

which defended Internet communications as a form of free

speech, blocked enforcement of the law. In June 1997 the U.S.

Supreme Court, deciding on a Clinton administration appeal

of the federal panel’s ruling, struck down the act as an uncon-

stitutional infringement on First Amendment rights to freedom

of expression.

________________________

_______________________

SEC. 502. OBSCENE OR HARASSING USE OF

TELECOMMUNICATIONS FACILITIES UNDER

THE COMMUNICATIONS ACT OF 1934.

Section 223 (47 U.S.C. 223) is amended—

(1) by striking subsection (a) and inserting in lieu

thereof:

‘(a) Whoever—

‘(1) in interstate or foreign communications—

‘(A) by means of a telecommunications device know-

ingly—

‘(i) makes, creates, or solicits, and

‘(ii) initiates the transmission of, any comment,

request, suggestion, proposal, image, or other communica-

tion which is obscene, lewd, lascivious, filthy, or indecent,

with intent to annoy, abuse, threaten, or harass another

person;

‘(B) by means of a telecommunications device know-

ingly—

‘(i) makes, creates, or solicits, and

1724 ERA 10: Contemporary United States

‘(ii) initiates the transmission of, any comment,

request, suggestion, proposal, image, or other communica-

tion which is obscene or indecent, knowing that the recip-

ient of the communication is under 18 years of age,

regardless of whether the maker of such communication

placed the call or initiated the communication;

‘(C) makes a telephone call or utilizes a telecommuni-

cations device, whether or not conversation or communi-

cation ensues, without disclosing his identity and with

intent to annoy, abuse, threaten, or harass any person at

the called number or who receives the communications;

‘(D) makes or causes the telephone of another repeat-

edly or continuously to ring, with intent to harass any

person at the called number; or

‘(E) makes repeated telephone calls or repeatedly ini-

tiates communication with a telecommunications device,

during which conversation or communication ensues,

solely to harass any person at the called number or who

receives the communication; or

‘(2) knowingly permits any telecommunications facil-

ity under his control to be used for any activity prohibited

by paragraph (1) with the intent that it be used for such

activity, shall be fined under title 18, United States Code,

or imprisoned not more than two years, or both.’; and (2)

by adding at the end the following new subsections:

‘(d) Whoever—

‘(1) in interstate or foreign communications know-

ingly—

‘(A) uses an interactive computer service to send to a

specific person or persons under 18 years of age, or

‘(B) uses any interactive computer service to display in

a manner available to a person under 18 years of age, any

comment, request, suggestion, proposal, image, or other

communication that, in context, depicts or describes, in

terms patently offensive as measured by contemporary

community standards, sexual or excretory activities or

organs, regardless of whether the user of such service

placed the call or initiated the communication; or

‘(2) knowingly permits any telecommunications facil-

ity under such person’s control to be used for an activity

prohibited by paragraph (1) with the intent that it be

used for such activity, shall be fined under title 18,

United States Code, or imprisoned not more than two

years, or both.

‘(e) In addition to any other defenses available by law:

‘(1) No person shall be held to have violated subsec-

tion (a) or (d) solely for providing access or connection to

or from a facility, system, or network not under that per-

son’s control, including transmission, downloading, inter-

mediate storage, access software, or other related

capabilities that are incidental to providing such access or

connection that does not include the creation of the con-

tent of the communication.

‘(2) The defenses provided by paragraph (1) of this

subsection shall not be applicable to a person who is a con-

spirator with an entity actively involved in the creation or

knowing distribution of communications that violate this

section, or who knowingly advertises the availability of

such communications.

‘(3) The defenses provided in paragraph (1) of this

subsection shall not be applicable to a person who provides

access or connection to a facility, system, or network

engaged in the violation of this section that is owned or

controlled by such person.

‘(4) No employer shall be held liable under this sec-

tion for the actions of an employee or agent unless

the employee’s or agent’s conduct is within the scope of

his or her employment or agency and the employer

(A) having knowledge of such conduct, authorizes or

ratifies such conduct, or (B) recklessly disregards such

conduct.

‘(5) It is a defense to a prosecution under subsection

(a)(1)(B) or (d), or under subsection (a)(2) with respect to

the use of a facility for an activity under subsection

(a)(1)(B) that a person—

‘(A) has taken, in good faith, reasonable, effective, and

appropriate actions under the circumstances to restrict or

prevent access by minors to a communication specified in

such subsections, which may involve any appropriate mea-

sures to restrict minors from such communications,

including any method which is feasible under available

technology; or

‘(B) has restricted access to such communication by

requiring use of a verified credit card, debit account, adult

access code, or adult personal identification number.

‘(6) The Commission may describe measures which

are reasonable, effective, and appropriate to restrict access

to prohibited communications under subsection (d). Noth-

ing in this section authorizes the Commission to enforce,

or is intended to provide the Commission with the author-

ity to approve, sanction, or permit, the use of such mea-

sures. The Commission shall have no enforcement

authority over the failure to utilize such measures. The

Commission shall not endorse specific products relating to

such measures. The use of such measures shall be admit-

ted as evidence of good faith efforts for purposes of para-

graph (5) in any action arising under subsection (d).

Nothing in this section shall be construed to treat interac-

tive computer services as common carriers or telecommu-

nications carriers.

‘(f)

(1) No cause of action may be brought in any court or

administrative agency against any person on account of

any activity that is not in violation of any law punishable

by criminal or civil penalty, and that the person has taken

in good faith to implement a defense authorized under

Economic and Technological Developments 1725

this section or otherwise to restrict or prevent the trans-

mission of, or access to, a communication specified in this

section.

‘(2) No State or local government may impose any lia-

bility for commercial activities or actions by commercial

entities, nonprofit libraries, or institutions of higher edu-

cation in connection with an activity or action described in

subsection (a)(2) or (d) that is inconsistent with the treat-

ment of those activities or actions under this section: Pro-

vided, however , That nothing herein shall preclude any

State or local government from enacting and enforcing

complementary oversight, liability, and regulatory systems,

procedures, and requirements, so long as such systems,

procedures, and requirements govern only intrastate ser-

vices and do not result in the imposition of inconsistent

rights, duties or obligations on the provision of interstate

services. Nothing in this subsection shall preclude any

State or local government from governing conduct not

covered by this section.

‘(g) Nothing in subsection (a), (d), (e), or (f) or in the

defenses to prosecution under subsection (a) or (d) shall

be construed to affect or limit the application or enforce-

ment of any other Federal law.

‘(h) For purposes of this section—

‘(1) The use of the term ‘telecommunications device’

in this section—

‘(A) shall not impose new obligations on broadcast-

ing station licensees and cable operators covered by

obscenity and indecency provisions elsewhere in this Act;

and

‘(B) does not include an interactive computer service.

‘(2) The term ‘interactive computer service’ has the

meaning provided in section 230(e)(2).

‘(3) The term ‘access software’ means software

(including client or server software) or enabling tools that

do not create or provide the content of the communication

but that allow a user to do any one or more of the follow-

ing:

‘(A) filter, screen, allow, or disallow content;

‘(B) pick, choose, analyze, or digest content; or

‘(C) transmit, receive, display, forward, cache, search,

subset, organize, reorganize, or translate content.

‘(4) The term ‘institution of higher education’ has the

meaning provided in section 1201 of the Higher Education

Act of 1965 (20 U.S.C. 1141).

‘(5) The term ‘library’ means a library eligible for par-

ticipation in State-based plans for funds under title III of

the Library Services and Construction Act (20 U.S.C. 355e

et seq.).’.

Source:

Landmark Documents in American History, Facts On File, Inc.

President Clinton’s Remarks

at Announcement of

Cloning Legislation, 1997

Remarks delivered by President Bill Clinton February 24,

1997, expressing concern about the possibility of creating

genetic clones of humans. His comments came a day after

researchers in Scotland announced that they had created the

first clone of an adult animal, a sheep. The cloned lamb,

named Dolly, had a genetic makeup identical to her mother’s.

This cloning success marked a major scientific breakthrough

but also raised apprehensions worldwide about the potential

for cloning human beings. In his comments, Clinton ap-

plauded the achievement of the Scottish researchers but called

on the U.S. National Bioethics Advisory Commission to eval-

uate the discovery’s full ethical and legal implications.

In follow-up remarks March 4, the president imposed a

ban on federal funding of human cloning research. He called

on America’s privately sponsored scientists to refrain voluntar-

ily from any work on human cloning until the federal bioethics

advisory panel issued its findings. This appeal was necessary

because human cloning was not declared illegal in the United

States, as it has been in Britain. After considering the Commis-

sion’s report, Clinton announced June 9, 1997, that he would

seek the approval of Congress on new legislation that would

“prohibit anyone in either public or private sectors from using

these techniques to create a child.” Stating that the new bill

would “reaffirm our most cherished belief about the miracle of

human life and the God-given individuality each person pos-

sesses,” Clinton targeted human cloning as unethical. How-

ever, he emphasized his support for other scientific uses of

cloning that would not be prohibited, such as cloning DNA in

cells or the cloning of animals, since both techniques may aid

in preventing diseases and in improving crop cultivation.

Another controversial issue that arose during the late

1990s and early 21st century involved the research use of stem

cells. These cells are created in the earliest stages of cell divi-

sion just after an egg has been fertilized. They are non-specific

and therefore show great promise in developing into new

organs or other parts of the body that could fight spinal cord

injuries and diseases such as Alzheimer’s and Parkinson’s.

Based on the idea that life begins when an egg is fertilized, the

religious right objected to any use of any stem cells. The reli-

gious right formed an important constituency for President

George W. Bush. On August 9, 2001, he announced highly

limited criteria for federal funding of stem cell research: to

qualify, the research had to be on stem cell “lines” created

prior to his announcement and the embryo from which the

stem cell line was derived no longer had the possibility of

development as a human being. Moreover, the stem cells must

have been derived from an embryo that was created for repro-

ductive purposes; the embryo was no longer needed for these

1726 ERA 10: Contemporary United States

purposes; informed consent must have been obtained for the

donation of the embryo; and no financial inducements could

have been provided for donation of the embryo.

________________________

_______________________

The President: Good morning. I’m glad to be joined this

morning by the Vice President, Secretary Shalala, Dr.

Harold Varmus, the head of NIH; Dr. Harold Shapiro, the

President of Princeton and the Chairman of our Bioethics

Advisory Commission; and Dr. Jack Gibbons, the Presi-

dent’s Advisor on Science and Technology, all of whom

know a lot about and care a lot about this issue we are dis-

cussing today.

The recent breakthrough in animal cloning is one that

could yield enormous benefits, enabling us to reproduce

the most productive strains of crop and livestock, holding

out the promise of revolutionary new medical treatments

and cures, helping to unlock the greatest secrets of the

genetic code. But like the splitting of the atom, this is a dis-

covery that carries burdens as well as benefits.

Science often moves faster than our ability to under-

stand its implications. That is why we have a responsibility

to move with caution and care to harness the powerful

forces of science and technology so that we can reap the

benefit while minimizing the potential danger.

This new discovery raises the troubling prospect that

it might someday be possible to clone human beings from

our own genetic material. There is much about cloning

that we still do not know. But this much we do know: any

discovery that touches upon human creation is not simply

a matter of scientific inquiry, it is a matter of morality and

spirituality as well.

My own view is that human cloning would have to

raise deep concerns, given our most cherished concepts of

faith and humanity. Each human life is unique, born of a

miracle that reaches beyond laboratory science. I believe

we must respect this profound gift and resist the tempta-

tion to replicate ourselves.

At the very least, however, we should all agree that we

need a better understanding of the scope and implications

of this most recent breakthrough. Last week, I asked our

National Bioethics Advisory Commission, headed by Pres-

ident Harold Shapiro of Princeton, to conduct a thorough

review of the legal and the ethical issues raised by this new

cloning discovery, and to recommend possible actions to

prevent its abuse, reporting back to me by the end of May.

In the meantime, I am taking further steps to prevent

human cloning. The federal government currently restricts

the use of federal funds for research involving human

embryos. After reviewing these restrictions, our adminis-

tration believes that there are loopholes that could allow

the cloning of human beings if the technology were devel-

oped. Therefore, today I am issuing a directive that bans

the use of any federal funds for any cloning of human

beings.

Effective immediately, no federal agency may support,

fund, or undertake such activity. Of course, a great deal of

research and activity in this area is supported by private

funds. That is why I am urging the entire scientific and

medical community, every foundation, every university,

every industry that supports work in this area to heed the

federal government’s example. I’m asking for a voluntary

moratorium on the cloning of human beings until our

Bioethics Advisory Commission and our entire nation have

had a real chance to understand and debate the profound

ethical implications of the latest advances.

As we gain a fuller understanding of this technology,

we must proceed not just with caution, but also with a con-

science, by insisting that not a single taxpayer dollar sup-

ports human cloning. And by urging a moratorium on all

private research in this area, we can ensure that as we

move forward on this issue, we weigh the concerns of faith

and family and philosophy and values, not merely of sci-

ence alone. Thank you very much.

Source:

Public Papers of the Presidents of the United States, William J.

Clinton, 1997. Washington, D.C.: Government Printing

Office, 1993–2001.

Economic and Technological Developments 1727

Lemon v. Kurtzman, 1971

The unanimous decision in this case of June 28, 1971, by the

Burger Court (Brennan and White concurring in part and dis-

senting in part; Marshall not participating) set the stage for

breaking down the wall of separation between church and

state raised by Thomas Jefferson in 1802 and continued under

the Rehnquist Court. Burger held that the establishment clause

of the First Amendment “far from being a wall,” was instead

“blurred, indistinct, and a variable barrier depending on all the

circumstances of a particular relationship.”

The decision involved the constitutionality of Rhode

Island and Pennsylvania acts allowing the state to support the

salaries of teachers of secular subjects in parochial schools. In

his opinion for the Court, Chief Justice Warren Burger estab-

lished the “Lemon Test”: “The cumulative criteria developed

by the Court over many years,” to determine the constitution-

ality of statutes under the First Amendment. Earlier Supreme

Court cases determined that to be constitutional, laws involv-

ing religious matters must serve a secular legislative purpose

and that in their primary effect they neither advance nor

inhibit religion. To this Burger added an “excessive entangle-

ment” provision: that unlike secular textbooks paid for by the

state, instructors could “improperly involve faith and morals”

while teaching secular subjects.

Another Rhode Island case,

Lynch v. Donnelly

(465 U.S.

668), decided March 5, 1984, instituted what has been called

the “plastic reindeer” test. Pawtucket, like many cities across

the United States, sponsored and funded a Christmas Nativity

display. The 5-4 majority ruled that it did not violate the First

Amendment doctrine of separation of church and state. The

Christmas display also included the less sectarian reindeer, a

Santa Claus house, and a Christmas tree. Because it did not

have a strictly religious focus, it did not, according to the

majority, represent a “real danger of establishment of a state

church” through government recognition and support of reli-

gion in general. For the future, the courts would decide, on a

case-by-case basis, whether practices or actions constitute

establishment of a religion or mean to do so. In

Allegheny

County v. American Civil Liberties Union

(492 U.S. 573

[1989]) the Court ruled that a creche by itself without other

more secular symbols did violate the clause, hence the “plas-

tic reindeer” test.

A 1992 5-4 decision,

Lee v. Weisman

(505 U.S. 577),

ruled that even a nonsectarian prayer by the clergy at a public

school ceremony, in this case, at a graduation, represented

state action and therefore violated the establishment clause.

On June 23, 1997, the U.S. Supreme Court in

Agostini

et al. v. Felton et al.

(521 U.S. 203) permitted public school

teachers to tutor in religious schools. In its ruling, the Court

held 5-4 that the establishment clause did not bar public

school teachers from entering parochial schools to provide

remedial education to underprivileged children. The decision

overturned the precedent the Court had set in a 1985 case,

Aguilar v. Felton

(473 U.S. 402), in which the justices cited the

establishment clause in prohibiting public employees from

working in religious schools. At issue in

Agostini v. Felton

was New York City’s efforts to spend a percentage of federal

education monies they received on remedial instruction for

poor children, including those in parochial schools. The

Agui-

lar

decision actually allowed public school teachers to instruct

parochial school students but not on parochial school grounds.

New York City then implemented a costly system of mobile

classrooms parked outside parochial schools. In

Agostini,

the

city sought a reversal of

Aguilar

, arguing that the 1985 ruling

had forced it to divert money and time counterproductively

from classroom teaching to the cumbersome logistics of the off-

site tutoring program.

Two days after

Agostini

, the U.S. Supreme Court in

City of

Boerne v. Flores, Archbishop of San Antonio, et al.

(117 S.

Court 2197) overturned the Religious Freedom Restoration Act

(RFRA), passed by Congress in 1993 in response to the

Supreme Court’s 1990 ruling in

Employment Div., Dept. of

Human Resources of Ore. v. Smith

(494 U.S. 872) permitting

Oregon to prohibit peyote use even for religious purposes. In

that decision, the Court gave states greater leeway to restrict

religious expression where it conflicted with public laws or

other state prerogatives. The Court did so by relaxing the

“compelling interest” standard that states previously had been

required to apply when considering a limit on religion’s free

exercise. The RFRA required government at all levels to show

compelling need before enforcing laws that “substantially bur-

dened” religious practices. Congress claimed constitutional

authority under the Fourteenth Amendment for defining reli-

gious liberty protections. The Court held that Congress ex-

ceeded its authority in RFRA and encroached on that of the

judiciary by attempting to define the level of protection that

the Constitution gave to religious expression. The majority

asserted that such power to interpret the Constitution

belonged exclusively to the judicial branch.

In a decision called the most important regarding religion

in the schools in the last 40 years, the Court ruled 5-4, June 28,

2002, in

Zelman v. Simmons-Harris

(No. 00-1751), that Cleve-

land could use its vouchers for students to attend parochial

1728 ERA 10: Contemporary United States

Social Developments

schools. School vouchers had been offered as a way for the

state to help pay tuition for students from substandard and fail-

ing public schools so that they could attend private schools,

including those sponsored by a church. Because most students

eligible for the vouchers could not afford independent school

tuition even with the subsidies, over 90 percent of the Cleve-

land students used their vouchers for parochial schools.

________________________

_______________________

MR. CHIEF JUSTICE BURGER delivered the

opinion of the Court.

These two appeals raise questions as to Pennsylvania

and Rhode Island statutes providing state aid to church-

related elementary and secondary schools. Both statutes

are challenged as violative of the Establishment and Free

Exercise Clauses of the First Amendment and the Due

Process Clause of the Fourteenth Amendment.

Pennsylvania has adopted a statutory program that

provides financial support to nonpublic elementary and

secondary schools by way of reimbursement for the cost of

teachers’ salaries, textbooks, and instructional materials in

specified secular subjects. Rhode Island has adopted a

statute under which the State pays directly to teachers in

nonpublic elementary schools a supplement of 15% of

their annual salary. Under each statute state aid has been

given to church-related educational institutions. We hold

that both statutes are unconstitutional.

HODE

SLAND

TATUTE

The Rhode Island Salary Supplement Act was enacted in

1969. It rests on the legislative finding that the quality of

education available in nonpublic elementary schools has

been jeopardized by the rapidly rising salaries needed to

attract competent and dedicated teachers. The Act autho-

rizes state officials to supplement the salaries of teachers

of secular subjects in nonpublic elementary schools by

paying directly to a teacher an amount not in excess of

15% of his current annual salary. As supplemented, how-

ever, a nonpublic school teacher’s salary cannot exceed the

maximum paid to teachers in the State’s public schools,

and the recipient must be certified by the state board of

education in substantially the same manner as public

school teachers.

In order to be eligible for the Rhode Island salary sup-

plement, the recipient must teach in a nonpublic school at

which the average per-pupil expenditure on secular educa-

tion is less than the average in the State’s public schools

during a specified period. Appellant State Commissioner

of Education also requires eligible schools to submit finan-

cial data. If this information indicates a per-pupil expendi-

ture in excess of the statutory limitation, the records of the

school in question must be examined in order to assess

how much of the expenditure is attributable to secular

education and how much to religious activity.

The Act also requires that teachers eligible for salary

supplements must teach only those subjects that are

offered in the State’s public schools. They must use “only

teaching materials which are used in the public schools.”

Finally, any teacher applying for a salary supplement must

first agree in writing “not to teach a course in religion for

so long as or during such time as he or she receives any

salary supplements” under the Act.

Appellees are citizens and taxpayers of Rhode Island.

They brought this suit to have the Rhode Island Salary

Supplement Act declared unconstitutional and its opera-

tion enjoined on the ground that it violates the Establish-

ment and Free Exercise Clauses of the First Amendment.

Appellants are state officials charged with administration

of the Act, teachers eligible for salary supplements under

the Act, and parents of children in church-related elemen-

tary schools whose teachers would receive state salary

assistance.

A three-judge federal court was convened pursuant to

28 U.S.C. 2281, 2284. It found that Rhode Island’s non-

public elementary schools accommodated approximately

25% of the State’s pupils. About 95% of these pupils

attended schools affiliated with the Roman Catholic

church. To date some 250 teachers have applied for bene-

fits under the Act. All of them are employed by Roman

Catholic schools.

The court held a hearing at which extensive evidence

was introduced concerning the nature of the secular

instruction offered in the Roman Catholic schools whose

teachers would be eligible for salary assistance under the

Act. Although the court found that concern for religious

values does not necessarily affect the content of secular

subjects, it also found that the parochial school system was

“an integral part of the religious mission of the Catholic

Church.”

The District Court concluded that the Act violated the

Establishment Clause, holding that it fostered “excessive

entanglement” between government and religion. In addi-

tion two judges thought that the Act had the impermissi-

ble effect of giving “significant aid to a religious

enterprise.” 316 F. Supp. 112. We affirm.

ENNSYLVANIA

TATUTE

Pennsylvania has adopted a program that has some but not

all of the features of the Rhode Island program. The Penn-

sylvania Nonpublic Elementary and Secondary Education

Act was passed in 1968 in response to a crisis that the

Pennsylvania Legislature found existed in the State’s non-

public schools due to rapidly rising costs. The statute affir-

matively reflects the legislative conclusion that the State’s

educational goals could appropriately be fulfilled by gov-

Social Developments 1729

ernment support of “those purely secular educational

objectives achieved through nonpublic education. . . .”

The statute authorizes appellee state Superintendent

of Public Instruction to “purchase” specified “secular edu-

cational services” from nonpublic schools. Under the “con-

tracts” authorized by the statute, the State directly

reimburses nonpublic schools solely for their actual expen-

ditures for teachers’ salaries, textbooks, and instructional

materials. A school seeking reimbursement must maintain

prescribed accounting procedures that identify the “sepa-

rate” cost of the “secular educational service.” These

accounts are subject to state audit. The funds for this pro-

gram were originally derived from a new tax on horse and

harness racing, but the Act is now financed by a portion of

the state tax on cigarettes.

There are several significant statutory restrictions on

state aid. Reimbursement is limited to courses “presented

in the curricula of the public schools.” It is further limited

“solely” to courses in the following “secular” subjects:

mathematics, modern foreign languages, physical science,

and physical education. Textbooks and instructional mate-

rials included in the program must be approved by the

state Superintendent of Public Instruction. Finally, the

statute prohibits reimbursement for any course that con-

tains “any subject matter expressing religious teaching, or

the morals or forms of worship of any sect.”

The Act went into effect on July 1, 1968, and the first

reimbursement payments to schools were made on

September 2, 1969. It appears that some $5 million has

been expended annually under the Act. The State has now

entered into contracts with some 1,181 nonpublic elemen-

tary and secondary schools with a student population of

some 535,215 pupils—more than 20% of the total number

of students in the State. More than 96% of these pupils

attend church-related schools, and most of these schools

are affiliated with the Roman Catholic church.

Appellants brought this action in the District Court to

challenge the constitutionality of the Pennsylvania statute.

The organizational plaintiffs-appellants are associations of

persons resident in Pennsylvania declaring belief in the

separation of church and state; individual plaintiffs-appel-

lants are citizens and taxpayers of Pennsylvania. Appellant

Lemon, in addition to being a citizen and a taxpayer, is a

parent of a child attending public school in Pennsylvania.

Lemon also alleges that he purchased a ticket at a race

track and thus had paid the specific tax that supports the

expenditures under the Act. Appellees are state officials

who have the responsibility for administering the Act. In

addition seven church-related schools are defendants-

appellees.

A three-judge federal court was convened pursuant to

28 U.S.C. 2281, 2284. The District Court held that the

individual plaintiffs-appellants had standing to challenge

the Act, 310 F. Supp. 42. The organizational plaintiffs-

appellants were denied standing under Flast v. Cohen, 392

U.S. 83, 99, 101 (1968).

The court granted appellees’ motion to dismiss the

complaint for failure to state a claim for relief. 310 F. Supp.

35. It held that the Act violated neither the Establishment

nor the Free Exercise Clause, Chief Judge Hastie dissent-

ing. We reverse.

In Everson v. Board of Education, 330 U.S. 1 (1947), this

Court upheld a state statute that reimbursed the parents of

parochial school children for bus transportation expenses.

There MR. JUSTICE BLACK, writing for the majority,

suggested that the decision carried to “the verge” of for-

bidden territory under the Religion Clauses. Id., at 16.

Candor compels acknowledgment, moreover, that we can

only dimly perceive the lines of demarcation in this

extraordinarily sensitive area of constitutional law.

The language of the Religion Clauses of the First

Amendment is at best opaque, particularly when com-

pared with other portions of the Amendment. Its authors

did not simply prohibit the establishment of a state church

or a state religion, an area history shows they regarded as

very important and fraught with great dangers. Instead

they commanded that there should be “no law respecting

an establishment of religion.” A law may be one “respect-

ing” the forbidden objective while falling short of its total

realization. A law “respecting” the proscribed result, that

is, the establishment of religion, is not always easily identi-

fiable as one violative of the Clause. A given law might not

establish a state religion but nevertheless be one “respect-

ing” that end in the sense of being a step that could lead to

such establishment and hence offend the First Amend-

ment.

In the absence of precisely stated constitutional prohi-

bitions, we must draw lines with reference to the three

main evils against which the Establishment Clause was

intended to afford protection: “sponsorship, financial sup-

port, and active involvement of the sovereign in religious

activity.” Walz v. Tax Commission, 397 U.S. 664, 668

(1970).

Every analysis in this area must begin with considera-

tion of the cumulative criteria developed by the Court over

many years. Three such tests may be gleaned from our

cases. First, the statute must have a secular legislative pur-

pose; second, its principal or primary effect must be one

that neither advances nor inhibits religion, Board of Edu-

cation v. Allen, 392 U.S. 236, 243 (1968); finally, the statute

must not foster “an excessive government entanglement

with religion.” Walz, supra, at 674.

Inquiry into the legislative purposes of the Pennsylva-

nia and Rhode Island statutes affords no basis for a con-

1730 ERA 10: Contemporary United States

clusion that the legislative intent was to advance religion.

On the contrary, the statutes themselves clearly state that

they are intended to enhance the quality of the secular

education in all schools covered by the compulsory atten-

dance laws. There is no reason to believe the legislatures

meant anything else. A State always has a legitimate con-

cern for maintaining minimum standards in all schools it

allows to operate. As in Allen, we find nothing here that

undermines the stated legislative intent; it must therefore

be accorded appropriate deference.

In Allen the Court acknowledged that secular and reli-

gious teachings were not necessarily so intertwined that

secular textbooks furnished to students by the State were

in fact instrumental in the teaching of religion. 392 U.S., at

248. The legislatures of Rhode Island and Pennsylvania

have concluded that secular and religious education are

identifiable and separable. In the abstract we have no

quarrel with this conclusion.

The two legislatures, however, have also recognized

that church-related elementary and secondary schools

have a significant religious mission and that a substantial

portion of their activities is religiously oriented. They have

therefore sought to create statutory restrictions designed

to guarantee the separation between secular and religious

educational functions and to ensure that State financial aid

supports only the former. All these provisions are precau-

tions taken in candid recognition that these programs

approached, even if they did not intrude upon, the forbid-

den areas under the Religion Clauses. We need not decide

whether these legislative precautions restrict the principal

or primary effect of the programs to the point where they

do not offend the Religion Clauses, for we conclude that

the cumulative impact of the entire relationship arising

under the statutes in each State involves excessive entan-

glement between government and religion.

III

In Walz v. Tax Commission, supra, the Court upheld state

tax exemptions for real property owned by religious orga-

nizations and used for religious worship. That holding,

however, tended to confine rather than enlarge the area of

permissible state involvement with religious institutions by

calling for close scrutiny of the degree of entanglement

involved in the relationship. The objective is to prevent, as

far as possible, the intrusion of either into the precincts of

the other.

Our prior holdings do not call for total separation

between church and state; total separation is not possible

in an absolute sense. Some relationship between govern-

ment and religious organizations is inevitable. Zorach v.

Clauson, 343 U.S. 306, 312 (1952); Sherbert v. Verner, 374

U.S. 398, 422 (1963) (HARLAN, J., dissenting). Fire

inspections, building and zoning regulations, and state

requirements under compulsory school-attendance laws

are examples of necessary and permissible contacts.

Indeed, under the statutory exemption before us in Walz,

the State had a continuing burden to ascertain that the

exempt property was in fact being used for religious wor-

ship. Judicial caveats against entanglement must recognize

that the line of separation, far from being a “wall,” is a

blurred, indistinct, and variable barrier depending on all

the circumstances of a particular relationship.

This is not to suggest, however, that we are to engage

in a legalistic minuet in which precise rules and forms

must govern. A true minuet is a matter of pure form and

style, the observance of which is itself the substantive end.

Here we examine the form of the relationship for the light

that it casts on the substance.

In order to determine whether the government entan-

glement with religion is excessive, we must examine the

character and purposes of the institutions that are bene-

fited, the nature of the aid that the State provides, and the

resulting relationship between the government and the

religious authority. MR. JUSTICE HARLAN, in a sepa-

rate opinion in Walz, supra, echoed the classic warning as

to “programs, whose very nature is apt to entangle the state

in details of administration. . . .” Id., at 695. Here we find

that both statutes foster an impermissible degree of entan-

glement.

(

) R

HODE

SLAND

ROGRAM

The District Court made extensive findings on the grave

potential for excessive entanglement that inheres in the

religious character and purpose of the Roman Catholic

elementary schools of Rhode Island, to date the sole ben-

eficiaries of the Rhode Island Salary Supplement Act.

The church schools involved in the program are

located close to parish churches. This understandably per-

mits convenient access for religious exercises since instruc-

tion in faith and morals is part of the total educational

process. The school buildings contain identifying religious

symbols such as crosses on the exterior and crucifixes, and

religious paintings and statues either in the classrooms or

hallways. Although only approximately 30 minutes a day

are devoted to direct religious instruction, there are reli-

giously oriented extracurricular activities. Approximately

two-thirds of the teachers in these schools are nuns of var-

ious religious orders. Their dedicated efforts provide an

atmosphere in which religious instruction and religious

vocations are natural and proper parts of life in such

schools. Indeed, as the District Court found, the role of

teaching nuns in enhancing the religious atmosphere has

led the parochial school authorities to attempt to maintain

a one-to-one ratio between nuns and lay teachers in all

schools rather than to permit some to be staffed almost

entirely by lay teachers.

Social Developments 1731