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Establishment Clause in Specific Contexts - Module 4 of 5

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Module 4: The Establishment Clause in Specific Contexts

The Establishment Clause

The establishment clause’s text is ambiguous because it is not immediately apparent what the phrase “respecting an establishment of religion” actually prohibits. For example, some might conclude that the prohibition against laws “respecting an establishment of religion” precludes Congress from enacting laws or regulatory policies that contain any reference to, or even acknowledgment of, religion. Considering, however, that United States currency contains the phrase “In God We Trust,” and that religious symbols are erected throughout the Capitol building to commemorate religion’s historical role in the United States’ founding, it is evident that the inclusion or acknowledgment of religion does not always violate the establishment clause. 

The clause’s text does not delineate the boundary between when, and under what circumstances, a federal law that acknowledges or accommodates religion is permissible, or whether such law constitutes “respecting an establishment of religion.” Not surprisingly, therefore, courts, including the Supreme Court, often struggle to define the establishment clause’s precise scope and meaning, particularly when applying it to different contexts.  

            In this module, we will: (1) examine the legal standards that the courts, particularly the Supreme Court, have established when interpreting the establishment clause; and (2) apply these standards to various contexts.

In Everson v. Board of Education, the Supreme Court set forth the primary purpose underlying the establishment clause, stating that:

The establishment of religion clause means at least this: Neither a state nor the federal government may set up a church. Neither can pass laws that aid one religion, aid all religions, or prefer one religion over another. Neither can force a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion … Neither a state or the federal government may, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation’ between church and state.[1]

Thus, the government may not, through duly-enacted laws or official actions, show a preference for Christianity over Judaism, or for Protestantism over Buddhism; instead, Congress must remain officially neutral regarding religion.[2]  The purpose is to ensure that the government does not implicitly discourage or devalue specific religions or religious practices, or implicitly coerce citizens into adhering to a particular religious denomination or practice. Doing so would be antithetical to the core values upon which the United States was founded, including liberty, autonomy and freedom of expression.

The Supreme Court has created several legal tests that are used in specific contexts to determine if a law violates the establishment clause. These include the: (1) Lemon test; (2) coercion tests; and (3) endorsement test.

Establishment Clause Tests

            In Lemon v. Kurtzman, the Supreme Court created a three-part standard to assess whether a law violates the establishment clause.[3] First, courts must determine if the law or government action has a secular purpose. The purpose underlying this prong of the Lemon test is that the government should only concern itself with civil matters and allow people to freely choose their religious preferences and practices. Second, the courts assess whether the law or action, either by design or in effect, advances or inhibits religion. Third, courts determine whether the law or action excessively entangles the government with religion or religious practices.[4]

            In Agostini v. Felton, the Supreme Court modified the Lemon test to focus on whether the primary purpose of the law or action at issue was to advance religion. In so doing, the Supreme Court explained that, when making this determination, lower courts should focus on whether: (1) the law results in government indoctrination; (2) government chooses recipients of benefits based on religion; or (3) the law results in excessive government entanglement with religion.[5]

            Although the modified Lemon test is applied in many establishment clause cases, other tests have emerged in the Court’s recent jurisprudence.

A few justices on the Supreme Court have expressed skepticism about the Lemon test’s workability. In Alleghany County v. ACLU, for example, Justice Anthony Kennedy argued that the Court should use a “coercion” test in establishment clause cases. Under this standard, a law does not violate the establishment clause unless it: (1) provides direct aid to religion in a way that would tend to establish a state church; or (2) coerces people to support or participate in religion against their will.[6] This test has not been adopted by a majority of justices on the Court, and is not applied in most establishment clause cases.

            Additionally, some justices have argued that an “endorsement” should govern the determination of whether a law violates the establishment clause. For example, in Lynch v. Donnelly, Justice Sandra Day O’Connor argued that a law or government action only violates the establishment clause if a reasonable observer would perceive that the government is either endorsing or disapproving of religion.[7] In support of this argument, Justice O’Connor stated that the “establishment clause prohibits the government from making adherence to a religion relevant in any way to a person’s standing in the political community.”[8] For Justice O’Connor, the establishment clause prevents Congress, through law or action, from sending “a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”[9]

            The endorsement test has gained some traction among other members of the Court and is sometimes used as an additional consideration when applying the Lemon test. The endorsement test is often applied in cases where the legal issue involves expressive activities, such as the constitutionality of prayers at a high school graduation, religious signs on government property and religious instruction in a public-school curriculum.

Religious Monuments on Government Property

            Supreme Court jurisprudence suggests that the construction of religious monuments on government property does not violate the establishment clause if such monuments are intended primarily for non-religious purposes. In Van Orden v. Perry, the Court considered whether the construction of a monument at the Texas State Capitol inscribing the Ten Commandments violated the establishment clause.[10] The Court held that the monument did not violate the clause because it was erected along with thirty-eight other monuments that commemorated Texas’ legal and political history.[11] Writing for the majority, Chief Justice William Rehnquist stated that the monument conveyed a “secular moral message about proper standards of social conduct and a message about the historic relation between those standards and the law.”[12]

             In McCreary County v. ACLU, however, the Court held that the construction of a Ten Commandments monument in two courthouses in Kentucky violated the establishment clause.[13] Applying the Lemon test, the Court inquired whether the monuments’ construction was secular in nature or had the purpose of advancing religion.[14] The Court held that the monuments, unlike the monument in Van Orden, sought to advance religion; specifically, the Court observed that, at a dedication for one of the monuments, a pastor testified to the certainty of God’s existence, and that the monuments contained "theistic and Christian references.”[15]

            The Court’s decisions demonstrate that the constitutionality of a religious monument constructed on government property depends on whether the monument is intended, as in McCreary County, to further religious purposes or, as in Van Orden, to commemorate secular, legal or historical interests.

Let’s consider two examples.

Example One

The State of Jersey enacts a law requiring all courthouses throughout the state to construct two monuments at their main entrances: one of the Ten Commandments and the other of the Declaration of Independence.  The stated purpose of the Ten Commandments monument is to remind all litigants that “all laws throughout this Nation’s history are the product of God’s divine will and command obedience.” The stated purpose of the Declaration of Independence monument is to “commemorate the principles upon which this country was founded.”

This law violates the establishment clause The Ten Commandments monument, and the law itself, is expressly intended to advance and demonstrate a preference for a specific religious faith (Christianity) and the construction of the Declaration of Independence monument does not substantially alter the law’s primarily religious purpose.

Example Two

Another state passes a law authorizing the construction of a monument to celebrate the life and achievements of a recently deceased religious minister, who had dedicated his life to providing food and shelter for the many thousands of homeless people throughout the state. Under the monument is the sentence, “In loving memory of an individual who selflessly gave to the most vulnerable and who lived a life of extraordinary virtue.”  

This law is probably okay because its primary purpose is not to advance or inhibit religion, but to celebrate an individual’s secular and altruistic life and achievements.

School Vouchers

            The question of whether school vouchers, in which the government provides children and parents with vouchers to assist them in paying tuition at private schools, violates the establishment clause, has divided the Supreme Court.

However, the Court largely resolved this issue in 2002 in Zelman v. Simmons- Harris, where the Court addressed the constitutionality of a voucher program in Cleveland, Ohio, that provided children with vouchers to pay tuition at any participating private or public schools, including schools with religious missions.[16] The law was challenged on the ground that the program, by enabling students to use government funds to attend religious schools, violated the establishment clause.

            In a 5-4 decision, the Court upheld the voucher program. Writing for the majority, Chief Justice William Rehnquist held that the program did not provide government funds directly to religious schools and offered all recipients the equal opportunity to choose to send their children to secular or religious schools. Chief Justice Rehnquist wrote:

The Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.[17]

The Court’s decisions stand for the proposition that voucher programs do not violate the establishment clause if they are neutrally enforced, that is, if funds are given directly to parents and parents have a choice between secular and religious schools.

Let’s consider an example.

The state of Washington conducts a study that highlights the substandard educational quality of many public schools in Seattle area. In response, the state legislature passes a law allocating fifteen million dollars to a voucher program that will provide money to families who desire to send their children to highly-ranked public or private high schools. The law enables parents to choose between secular and religious high schools, although it limits the definition of religious schools to “those affiliated with the Catholic or Protestant faiths.” This would violate the establishment clause. Although the law provides pubic for funds religious and secular high schools, it improperly demonstrates a preference for particular religions over others.

School Prayer

The Supreme Court has repeatedly addressed prayer in the public schools, including at graduation ceremonies. In Wallace v. Jaffree, the Court addressed the constitutionality of an Alabama law that required schools to devote time each day for a “period of silence for meditation or silent prayer.”[18] In a 5-4 decision, the Supreme Court invalidated the law, holding that is lacked a secular purpose.[19]

Also, in Lee v. Weisman, the principal of a middle school in Providence, Rhode Island, authorized a rabbi to deliver a prayer at a graduation school ceremony.[20] Although the school district ensured that the prayer was nonsectarian and that participation was voluntary, the Supreme Court held that the law violated the establishment clause. Writing for the majority, Justice Anthony Kennedy relied substantially on the fact that the school district had provided the rabbi with a pamphlet before the ceremony containing advice regarding the drafting of a prayer for the ceremony. Justice Kennedy stated as follows:

Through these means, the principal directed and controlled the content of the prayers. Even if the only sanction for ignoring the instructions were that the rabbi would not be invited back, we think no religious representative who valued his or her continued reputation and effectiveness in the community would incur the State's displeasure in this regard. It is a cornerstone principle of our Establishment Clause jurisprudence that it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government, and that is what the school officials attempted to do.[21]

            Justice Kennedy also rejected the school district’s argument that, because participation in the prayer was voluntary, it did not violate the establishment clause. Justice Kennedy explained:

The school district's supervision and control of a high school graduation ceremony places subtle and indirect public and peer pressure on attending students to stand as a group or maintain respectful silence during the invocation and benediction. A reasonable dissenter of high school age could believe that standing or remaining silent signified her own participation in, or approval of, the group exercise, rather than her respect for it. And the State may not place the student dissenter in the dilemma of participating or protesting. Since adolescents are often susceptible to peer pressure, especially in matters of social convention, the State may no more use social pressure to enforce orthodoxy than it may use direct means. The embarrassment and intrusion of the religious exercise cannot be refuted by arguing that the prayers are of a de minimis character, since that is an affront to the rabbi and those for whom the prayers have meaning, and since any intrusion was both real and a violation of the objectors' rights.

In so holding, Justice Kennedy emphasized that “the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a … religion or religious faith, or tends to do so.’”[22]

            Finally, in Santa Fe v. Doe, the Supreme Court held that the use of student-led and student-initiated prayer at high school football games violated the establishment clause.[23] The Court explained that, because the student-led prayers occurred at a school-sponsored event in which school facilities were used, a reasonable person would conclude that the school was endorsing the prayers.[24]

            Note, though, that two lower federal courts have held that the Court’s holding in Lee v. Weisman does not apply to voluntary prayer at university graduations. In Tanford v. Brand, for example, the Seventh Circuit Court of Appeals held that, because college students were more mature than high school students, they could not as easily be coerced into participating in the prayer.[25] Similarly, in Chaudhuri v. State of Tennessee, the Sixth Circuit Court of Appeals relied on the same rationale to uphold a graduation prayer at Tennessee State University.[26]

            Let’s consider an example.

A prominent state university adopts a policy that permits students to engage in a voluntary, non-denominational prayer at the beginning of the university’s four home football games. The prayer is led by the University President and, although participation is voluntary, the school announced that all students who participated in the prayer at each athletic event would receive a $150 stipend that could be used for any purpose.

This policy probably violates the establishment clause. Although participation in the prayer is voluntary, the $150 stipend offer indirectly coerces student participation.

            In our final module, we’ll survey some recent Supreme Court applications of the freedom of religion rules that we’ve discussed in the first four modules.

[1] Eversonv. Bd. of Educ., 330 U.S. 1 (1947) 

[2] USCS Const. Amend. 1.

[3] Lemonv. Kurtzman, 403 U.S. 602 (1971).

[4] Id.

[5] Agostiniv. Felton, 521 U.S. 203 (1997).

[6] Cty.of Allegheny v. ACLU, 492 U.S. 573 (1989).

[7] Lynchv. Donnelly, 465 U.S. 668 (1984).

[8] Id.

[9] Id. supra.

[10] Van Orden v. Perry, 545 U.S. 677 (2005).

[11] Id.

[12] Id.

[13] McCreary County v. ACLU, 545 U.S. 844 (2005).

[14] Id.

[15] Id.

[16] Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

[17] Id. supra.

[18] Wallace v. Jaffree, 472 U.S. 38 (1985).

[19] Id.

[20] Lee v. Weisman, 505 U.S. 577 (1992).

[21] Id. supra.

[22] Id. (internal citation omitted).

[23] Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).

[24] Id.

[25] Tanford v. Brand,104 F.3d 982 (7th Cir.1997).

[26] Chaudhuri v. State of Tennessee, 130 F.3d 232 (6th Cir. 1997).