In 1791 the First Amendment to the Constitution of the United States of America, containing what have become known as the Establishment and Free Exercise Clauses, set up a constitutional tension which is at the heart of these two books: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’. The books describe the current state of affairs variously as a ‘raging debate’, an ‘inherent conflict’ and ‘trench warfare’. Although set in the specific context of the United States’ separation of church and state, this is a tension and a debate which exists, in differing forms, in most constitutional states.

The first book, by Professors Winer and Crimm, looks specifically at state funding of religious schools in the United States. The authors are up-front about their particular viewpoint. This is to be no academically neutral treatise, as its cover declares:

Nevertheless, the book is a well-written and stimulating set of insights into the origins and development of the jurisprudence of the Supreme Court on the Establishment and Free Exercise Clauses of the First Amendment, and the state of that debate today.

It begins with an excellent introduction and overview of the five lengthy chapters, which could well stand alone. The tone is set very clearly: the first quotation is from a dissenting judgment of Justice Brennan. We will hear much, in due course, both from dissenting judgments and from Justice Brennan. Two generic private schools are described to illustrate the point: the secular ‘County Day School’ and the religiously affiliated ‘Pervasively Sectarian Academy’. Chapter 1 describes the school structures in the United States, beginning with the public schools, the quality of the education they provide and public perception of the public school system. It then examines the history and motivations behind the various types of alternatives to the public schools, including the various ways in which they are funded. This includes movements for ‘school choice’, home schooling, tuition vouchers and education savings accounts. UK readers might be struck by the policy of Horace Mann, first secretary of the Massachusetts Board of Education, echoes of which are to be found in section 14(2) of the 1870 Education Act, the ‘Cowper-Temple clause’, which provided that: ‘No religious catechism or religious formulary which is distinctive of any particular denomination shall be taught in the school’. This clause has remained in force and is currently Schedule 31, paragraph 2(5) of the Education Act 1996. Mann advocated common schools inculcating ‘universal Christian morals’ through the reading of the Bible ‘without note or comment’, a proposal hailed by some as a ‘stroke of genius’.

Chapter 2 explores the history and meaning of the Establishment Clause in the context of state aid for schools. In particular, it aims, through examination of the cases, to square the circle of the effect of the First Amendment in the United States, given that, at the time of its ratification, not just state aid but established state churches were in existence. Justice Brennan is here pitted against Justices Thomas and Scalia, in a process of working out whether the Fourteenth Amendment of 1868 extended the First Amendment to the states according to a 1791 or an 1868 understanding.

The third chapter seeks to demonstrate that, leaving aside other direct or indirect subsidies to religious schools, the tax breaks available to charities and religious bodies also amount to state subsidy (which, by necessary implication, ought to be prohibited under the First Amendment). The fourth excoriates as unconstitutional the recent denial of taxpayers’ standing before the Supreme Court to limit access to the Court's jurisdiction as to whether a particular state ‘subsidy’ is unconstitutional: ‘The majority in Winn was egregiously and indefensibly wrong’ (p 221). The last chapter offers the authors’ proposals on how to improve what is seen as an unsatisfactory provision. This impressive range of ideas includes obvious elements such as improving state schools and increasing taxpayer standing in the courts, but also sunset provisions for tax benefits (so that they are more often debated publically), means-tested subsidies and state education lotteries.

Despite (or perhaps because of) the authors’ particular viewpoint, this book offers a well-structured and well-argued exploration of a fascinating constitutional debate within the United States context. But more than that, by frequent appeal to first principles, it means that much of the argument is transferable out of its specific context into a wider one. Many of the arguments deployed in the book will be familiar in other countries and reading this book will help stimulate the thought process on this important matter, whichever side of the argument the reader happens to sit.

The second book, ably edited by Charles Russo, is a collection of articles on the subject of education, law and religion, the first half of which deal, in one form or another, with ‘First Amendment’ issues in the United States. The remaining seven articles then provide international comparators from Australia (Paul Babie and Ben Mylius), Canada (Gregory Dickenson and Nora Findlay), England (Neville Harris and Javier García Oliva), Ireland (Dympna Glendenning), Malaysia (Fatt Hee Tie), Russia (Maria Smirnova) and South Africa (Marius Smit).

The first half of the book has a chapter dedicated to each of the main discrete issues that come in to play in this area: prayer (Martha McCarthy), curriculum (Suzanne Eckes and Allison Fetter-Harrot), religious materials (Ralph Mawdsley), holidays and celebrations (Kevin Brady) and clothing (Allan Osborne). This part starts with an overview by the editor, and concludes with a description by William Thro of the ‘clash of values’ between religious autonomy and state efforts to eliminate all forms of discrimination. The chapters in the second half of the book each attempt to cover these same topics, but with emphasis differing according to context. For example, the chapter on the English education system contains more material on curriculum (largely religious education) and prayer (collective worship) than on religious holidays, simply because that reflects the respective provisions of English law on those topics. The whole book finishes with a chapter of analysis and recommendations by Charles Russo.

The viewpoint of this book differs from the first, both in tone and diversity. One can detect varying sympathies among the authors, particularly those from the comparator countries. The overall tone, however, is set by Russo in the introduction: he sees a direct threat to religious freedom arising from the Supreme Court's reliance on the Jeffersonian metaphor of the ‘wall of separation between Church and State’, which (despite its absence from the Constitution) entered the jurisprudence ‘as a kind of Trojan Horse’ (p 3) in Everson v Board of Education.Footnote ¹ He maintains that:

Russo also sees the motivation for the ‘wall of separation’ as partly originating in the historic anti-Catholic attitudes of such groups as the Ku Klux Klan. He concludes his introduction with some questions. One relates to the second prong of the tripartite test first set out in Lemon v Kurtzman,Footnote ² that the principal or primary effect of a statute must be one that neither advances nor inhibits religion. Russo questions how, in the light of a number of recent cases, the appearance of inhibiting religion can be avoided. Another question concerns the paradox of how a society founded on religious principles but preserving the metaphoric ‘wall of separation’ can respect the rights of both the majority and the minority.

William Thro's chapter neatly sums up two recent cases where the Supreme Court's attempts to resolve the inherent tension between the two ‘self-evident truths’ that all ‘are created equal’ and that all are endowed with ‘unalienable rights’ highlight the difficulties. In Christian Legal Society v Martinez,Footnote ³ the Court held that a public law school may, as a condition of registration as a student society, require a religious student body to admit as members those who disagree with its belief: ‘equality prevails over freedom’ (p 82). In Hosanna-Tabor v Equal Employment and Opportunities Commission,Footnote ⁴ the Supreme Court upheld the use of the ‘ministerial exception’ in the case of the dismissal of a ‘called’ teacher in an evangelical Lutheran school: ‘religious freedom prevails over equality’ (p 88).

A minor niggle, for this reader, is the use of endnotes rather than footnotes, with the frequent use of endnotes cross-referring to other endnotes (especially where the numbering is incorrect). Leaving that aside, the book contains a collection of well-written and thoughtful arguments.

Particularly when taken together, the two books give an excellent flavour of the nature and state of these questions in the US context, as well as giving food for reflective thought about the same questions elsewhere.