Tests 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.”

In Everson 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 in Lemon 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 with religion?

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 to attend.”


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