The Principle of Nondivisiveness and the Constitutionality of Public Aid to Parochial Schools

The establishment clause issues in the three cases now before the Supreme Court [Tilton v. Richardson, Lemon v. Kurtzman, DiCenso v. Robinison] will be explored in this article in the light of a postulate and three derivative maxims which, it is suggested, are implicit in the Court's earlier religion clause cases, particularly Walz v. Tax Commission. It is the author's view that the establishment clause intends that government no be a divisive force in matters of religion and that analysis grounded in such a premise provides the surest delineation of the interests at stake in establishment clause litigation. Yet in considering the issues involved in aid to parochial schools, it is well to remember the observation of Professor Kurland that "[a]nyone suggesting that the answer, as a matter of constitutional law, is clear one way or the other is either deluding or deluded."