Used by the Supreme Court in Establishment Clause Cases
The United States Supreme Court heard few church-state cases between
1791 and 1946. Why was this? Until the Civil War and the passage
of the 14th Amendment, the First Amendment did not apply to states.
In Cantwell v. Connecticut(1940), the Supreme Court held
that the free exercise of religion is one of the “liberties”
protected by the due-process clause.”
v. Board of Education (1947) Justice Hugo L. Black (on the
Court 1937-1971) detailed the history
and importance of the Establishment Clause. He states that prior
to the Fourteenth Amendment, “some states persisted for about half
a century in imposing restraints upon the free exercise of religion
and in discriminating against particular religious groups. In recent
years, so far as the provision against the establishment of a religion
is concerned, the question has most frequently arisen in connection
with proposed state aid to church schools and efforts to carry on
religious teachings in the public schools in accordance with the
tenets of a particular sect.”
The Establishment Clause Test
As Black continued in expressing the majority opinion, he enumerated
the meaning of the “establishment of religion clause”:
- Neither a state nor the federal government can set up a church.
- Neither can pass laws which aid one religion, aid all religions
nor prefer one religion over another.
- Neither can force nor influence 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.
- No person can be punished for entertaining or professing religious
beliefs or disbeliefs, for church attendance or non-attendance.
- No tax in any amount, large or small, can be levied to support
any religious activities or institutions, whatever they may be
called or whatever form they may adopt to teach or practice religion.
- Neither a state nor the federal government can openly or secretly
participate in the affairs of any religious organizations or groups
and vice versa.
These principles came to be known as the establishment clause test.
Other tests for constitutionality of laws and actions were introduced
by Supreme Court justices and replaced the establishment clause
test over the next 50 years. Since 1971 justices have used three
tests in deciding establishment clause cases: The Lemon test, the
endorsement test and the coercion test.
The justices have held divergent views on difficult establishment
clause cases. At the end of the twentieth century, the Lemon test
came under sharp criticism from some scholars and from a majority
of the justices of the Supreme Court. Some legal scholars have even
called for a return to the establishment clause test.
The Lemon Test
The Lemon test, based on the 1971 U.S. Supreme Court ruling
v. Kurtzman, is the standard of judicial review in cases
involving the establishment clause of the First Amendment. The Lemon
test involves three criteria for judging whether laws or governmental
actions are allowable under the establishment clause. A negative
answer to any of the three questions means the act is unconstitutional.
- Does the challenged law, or other governmental action, have
a bona fide secular (non-religious) or civic purpose?
- Does the primary effect of the law or action neither advance
nor inhibit religion? In other words, is it neutral?
- Does the law or action avoid excessive entanglement of government
If the answer to all three is yes, the law passes the Lemon test.
The Endorsement Test
Justice Sandra Day O’Conner, in a concurring opinion, first proposed
the endorsement test in 1984 in Lynch
v. Donnelly. The endorsement test asks whether the challenged
law or government action has either the purpose or effect of endorsing
religion or disapproving of religion in the eyes of the community
members. As O’Connor argued, “Endorsement sends 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. … What is crucial is
that the government practices not have the effect of communicating
a message of government endorsement or disapproval of religion.”
The Coercion Test
Justice Anthony Kennedy proposed a “coercion” standard in Lee
v. Weisman (1992). In this case, the test focused on the
psychological coercive effect of clergy-led prayer at graduation
ceremonies. The Court found, “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.” The Court stated in its decision, “… at a minimum,
the Constitution guarantees that government may not coerce anyone
to support or participate in religion or its exercise.”
Justice Antonin Scalia, a devout Catholic and former altar boy,
wrote in the dissenting opinion that “from our Nation’s origin,
prayer has been a prominent part of governmental ceremonies and
proclamations. The Declaration of Independence, the document marking
our birth as a separate people, ‘appeal[ed] to the Supreme Judge
of the world for the rectitude of our intentions’ and avowed ‘a
firm reliance on the protection of divine Providence.’ In his first
inaugural address, after swearing his oath of office on a Bible,
George Washington deliberately made a prayer a part of his first
official act as President … Most recently, President George Herbert
Walker Bush, continuing the tradition established by President Washington,
asked those attending his inauguration to bow their heads, and made
a prayer his first official act as President.”
In the majority opinion, Justice Kennedy, also a devout Catholic
and former altar boy, stated, “The atmosphere at a state legislature’s
opening, where adults are free to enter and leave with little comment
and for any number of reasons, cannot compare with the constraining
potential of the one school event most important for the student