Freedom of Religion and the Establishment Clause

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The "Establishment Clause" was intended to prevent any governmental endorsement or support of religion. While one might intuitively read this to mean that the clause was meant to preclude endorsement or support of some particular religion, it is important to note that the clause also prohibits the endorsement of religion generally over non-religion. As the Court noted in 1947,

“A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government-favored churches.” -Everson v. Board of Education, 330 U.S. 1, 8 (1947).

The Court went on to emphasize that

“no one group throughout the Colonies can rightly be given entire credit for having aroused the sentiment that culminated in adoption of the Bill of Rights' provisions embracing religious liberty,” - Everson at 11

and that the principles were as apt at the time of the Court’s decision as they had been when the First Amendment was originally passed in 1792.

The Everson Court also provides a list of state actions that violate the Establishment Clause. Everson at 15-16. The Court does not present this list as comprehensive, but rather as a minimal list of activities prohibited by the First Amendment. These include:

• setting up a state church
• passing laws which specifically aid one religion or aid religions generally
• forcing or otherwise influencing individuals to attend or not attend church
• punishing people for ascribing to certain beliefs or disbeliefs or for attending or not attending church
• taxes levied to support religious institutions or activities
• governmental participation in religious organizations or participation by religious organizations in governmental activities

EXAMPLE: Southernstate has traditionally had a large Baptist population, and various Baptist churches and organizations have made significant contributions to communities throughout the state over the years. Last year, it came to the attention of the state legislature that several major Baptist churches would likely have to close their doors for lack of financial support. In an effort to show their appreciation for the many contributions these churches have made over the years, the state legislature decides that they will allow the struggling congregations to use the state college football stadium to hold fund-raising events. While the usual rent for the stadium is between $5,000 and $12,000 per event, depending on length of use and time of year, the legislature passes a special bill permitting the churches to use the facility rent free. This law, which passes along a special benefit to a specific religious group, runs afoul of the Establishment Clause.

In Lemon v. Kurtzman, 403 U.S. 602 (1970), the Court provided a three-part test for Establishment Clause analysis. Although for some time it was questionable whether the Lemon Test would continue to be applied in such cases, the Court, in 2000, stated that “we assess [Establishment Clause cases] by reference to the three factors first articulated in Lemon v. Kurtzman…which guides the general nature of our inquiry in this area.” Santa Fe Independent School District v. Jane Doe, 530 U.S. 290, 314.

The three-part Lemon Test asks:

1. Does the law have a secular purpose? If not, it violates the Establishment Clause.
2. Is the primary effect either to advance religion or to inhibit religion? If so, it violates the Establishment Clause.
3. Does the law foster an excessive governmental entanglement with religion? If so, it violates the Establishment Clause.

Note here that these are not factors that are employed in some balancing test, but rather, these are all requirements that must be met for a law to pass review. There must be a secular purpose, the primary effect must not be the aid or inhibition of religion, and there must be no excessive entanglement. If any of these three requirements are not met, the law violates the Establishment Clause. See e.g., Windmar v. Vincent, 454 U.S. 263, 272 (1981).

EXAMPLE (1): Westernstate University wants to allow student groups to meet in university buildings when the buildings are not otherwise in use for classes (which would create a limited public forum – see Subject 2). The school officials are confident that an open-forum policy, which includes nondiscrimination, would meet the first prong of the Lemon Test and would also avoid excessive entanglement thereby preventing any issues relating to the third prong of the test. The school is concerned, however, that allowing religious groups to use the space would have the primary effect of advancing religion. Following Windmar v. Vincent at 273, however, it is clear that

“by creating a forum, the University does not thereby endorse or promote any of the particular ideas aired there” and therefore the proposed state action would pass all three prongs of the Lemon Test."

EXAMPLE (2): Southernstate’s legislature recently passed a law requiring that a copy of the Ten Commandments must be posted on the walls of public classrooms statewide. No public funds will be diverted for this purpose as the materials will all be privately donated. Below the last commandment on each poster the following words will be printed: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” Despite this footnote and a legislative history which purported to enact the law for secular purposes, mere recitation of secular purpose is insufficient to prevent a first-prong Lemon Test failure and therefore an Establishment Clause violation. See Stone v. Graham, 449 U.S. 39 (1980).

EXAMPLE (3): The Northernstate school system is extensive and complex, comprising dozens of different local school districts statewide, each with their own concerns and issues. Recognizing that the state legislature might not be the body best-suited to making all the decisions regarding every school district, a state law is enacted which allows local school boards to develop their own rules and contracts for transporting children to and from school. The school board for the town of Argentville exercises its authority under the state statute to reimburse parents for money spent to get their children to school using public transportation. Included in the reimbursement system is payment for transportation of children who attend Catholic schools within the school district. Exclusion of Catholic school students’ parents from the reimbursement program would violate the second prong of the Lemon Test, hence only by including them within the scheme can an Establishment Clause violation be avoided.

EXAMPLE (4): East County High School’s graduation ceremony is voluntary – seniors need not attend. This year, Rabbi Solomon has been asked to give the invocation and benediction. He is provided with guidelines from the school for leading the attendees in a nonsectarian prayer. Because attendance, though maybe formally “voluntary," is, in essence, obligatory (as a significant occasion in one’s life), the state mandated prayer is an impermissible state act which has, as its primary effect, the advancement of religion. See Lee v. Weisman, 505 U.S. 577 (1992).

EXAMPLE (5): Various religious groups of Westernstate have recently petitioned the state legislature to enact a law protecting their right to observe their Sabbaths without fear of repercussion from employers who would have them work on these days. The groups are members of various religions, some of whom hold their Sabbath on Saturday and some of whom hold their Sabbath on Sunday. Because such a law would require the state to decide which religious activities constitute observance of a Sabbath and which do not, passing such a law risks running afoul of the third prong of the Lemon Test which prohibits excessive governmental entanglement. See Estate of Thornton v. Caldor, 472 U.S. 703 (1985).

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