Samuel E. Ericsson Director of the Center for Law and Religious Freedom 6901 Braddock Road P.O. Box 1492 Springfield, VA 22151
Re: Attorney General Opinion No. 84-198 re Released Time Religious Education
Dear Mr. Ericsson:
Thank you for your letter of July 11, 1985. I, too, appreciate the tone displayed in our communications. I did not, however, intend to convey in earlier communications the message that "the crux of our correspondence has been whether Zorach v. Clauson,343 U.S. 306 (1952), remains good law." On the contrary, I acknowledge that Zorach has not been overturned as evidenced by the Supreme Court's recent reference to it in Grand Rapids v. Ball, 53 U.S.L.W. 5006, 5010 (July 1, 1985).
It is my understanding that the purpose of our correspondence has been whether the conclusion reached in Attorney General Opinion No. 84-198 is justified or whether it is in error. Hence, although I recognize that Zorach has not been overruled, the United States Supreme Court's decision in Grand Rapids v. Ball, supra, lends support to my continued attitude that a situation such as the one giving rise to Opinion No. 84-198 is vulnerable to constitutional attack. I feel that we cannot confidently predict that the "passive indifference" found in Zorach is necessarily present in the situation giving rise to the above opinion. Because the practice in question would today be subject to the Lemon analysis, I must continue to refrain from approving a practice the impetus for which, if individual motivations were subjected to judicial inquiry, might not be as it appears on the surface.