Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In Larkin v. Grendel’s Den,1 the Court held that the Establishment Clause is violated by a delegation of governmental decisionmaking to churches. At issue was a state statute permitting any church or school to block issuance of a liquor license to any establishment located within 500 feet of the church or school. Although the statute had a permissible secular purpose of protecting churches and schools from the disruptions often associated with liquor establishments, the Court indicated that these purposes could be accomplished by other means, e.g., an outright ban on liquor outlets within a prescribed distance, or the vesting of discretionary authority in a governmental decisionmaker required to consider the views of affected parties. However, the conferral of a veto authority on churches had a primary effect of advancing religion both because the delegation was standardless (thereby permitting a church to exercise the power to promote parochial interests), and because
the mere appearance of a joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some.2 Moreover, the Court determined, because the veto
enmeshes churches in the exercise of substantial governmental powers, it represented an entanglement offensive to
the core rationale underlying the Establishment Clause [—] preventing ‘a fusion of governmental and religious functions.’3
Using somewhat similar reasoning, the Court in Board of Education of Kiryas Joel Village v. Grumet,4 invalidated a New York law creating a special school district for an incorporated village composed exclusively of members of one small religious group. The statute failed
the test of neutrality, the Court concluded, since it delegated power
to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism. It was the
anomalously case-specific nature of the legislature’s exercise of authority that left the Court
without any direct way to review such state action for conformity with the neutrality principle. Because the village did not receive its governmental authority simply as one of many communities eligible under a general law, the Court explained, there was no way of knowing whether the legislature would grant similar benefits on an equal basis to other religious and nonreligious groups.