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          Week 12:
    Freedom of Religion:
    Establishment Clause
               KEY POINTS
• Main concept: The Establishment Clause
  prohibits the federal government and the
  states (Everson) from making any law
  respecting an establishment of religion
  – “No law” doesn’t really mean no law
  – Doctrine is incoherent
     • Justices have been sharply divided
     • Three tests have been developed
     • Don’t always know which test will be applied in a
       particular circumstance
                KEY POINTS
• Generally three tests:
  – Lemon test, as modified: two inquiries
     • A secular purpose?
     • Primary effect either advances or inhibits religion?
        – No excessive entanglement between government and
        – Entanglement used to be separate inquiry; now included
          with effects
  – Endorsement test: insiders and outsiders
     • Articulated by Justice O’Connor in Lynch v.
       Donnelly concurrence
               KEY POINTS
• Three tests, cont’d
  – Endorsement, cont’d
     • Does government intend to convey a message of
       endorsement or disapproval of religion?
     • Would a reasonable observer understand the
       effect of the law or practice as conveying
       endorsement or disapproval of religion?
  – Coercion test: different meanings
     • Minority view of Justices Scalia and Thomas:
       coercion by force of law and threat of penalty
                KEY POINTS
• Three tests, cont’d
  – Coercion test, cont’d
     • More generally accepted view, but not clearly
       articulated in the form of a rule, is that something
       less than actual legal compulsion suffices
        – Peer pressure to conform. Lee
        – Strong desire to be involved in social events. Santa Fe
          Ind. Sch. Dist.

• Application of tests varies depending on
  facts and context
             KEY POINTS
• Application of tests, cont’d
  – Government support of religious institutions,
    especially school funding cases: Lemon test
    with emphasis on effects
  – Religious speech: Lemon test or endorsement
    test; context is critical
  – Religious doctrine in public schools: Lemon
    test or coercion test; Court has been much
    more protective
• Incorporation
  – Everson v. Board of Educ. (1947)
     • Establishment Clause “means at least this: Neither
       a state nor the Federal Government can set up a
       church. Neither can pass laws which aid one
       religion, aid all religions, or prefer one religion over
       another. Neither can force…a person…to profess
       a belief or disbelief in any religion.”
     • Court characterized bus transportation as a form of
       general state law benefit
               LEMON TEST
• Lemon v. Kurtzman (1971)
  – Originally a three-part test
     • Secular purpose: the law or practice must have a
       secular purpose
        – Note that purpose need not be entirely secular
        – Question is whether the actual purpose is to endorse or
          disapprove of religion. Lynch (O’Connor, concurring)
        – Secular purpose must be sincere and not merely a
          “sham”. See Edwards v. Aguillard (1987)
        – How is purpose to be determined?
            » Cf. Justice Brennan’s Edwards majority with Justice
              Scalia’s Edwards dissent
                LEMON TEST
• Lemon, cont’d
  – Original three part test, cont’d
     • Neutral effects: Principal or primary effect of the
       law or practice must be one that neither advances
       nor inhibits religion
        – Is a law that “inhibits” religion an establishment, or a
          burden on free exercise?
        – Government cannot favor or disfavor religion generally,
          or favor or disfavor one religious sect over another
        – If government distributes benefits and burdens equally
          and without regard to religion, it is unlikely that it will run
          afoul of effects inquiry
               LEMON TEST
• Lemon, cont’d
  – Original three part test, cont’d
     • Excessive entanglement: Law or practice must not
       result in excessive entanglement between
       government and religion
        – See, e.g., Walz v. Tax Comm’n (1970)
           » Challenge to state property tax exemption for
             religious organizations
           » Court said test is one of degree
           » Eliminating exemption would increase entanglement
             by requiring valuations of church property, tax liens
             and other conflicts between church and state
             LEMON TEST
• Lemon, cont’d
  – Three-part Lemon test modified
    • In Agostini v. Felton (1997), Court recast Lemon
      test into a two-part purpose and effects inquiry
    • Same inquiry into secular purpose and principal or
      primary effect
    • Entanglement was rolled into effects inquiry:
      whether there is excessive entanglement is now a
      factor in deciding whether principal or primary
      effect advances or inhibits religion
    • See also Mitchell v. Helms (2000)
              LEMON TEST
• Observations on Lemon
  – Secular purpose
    • Sometimes called purposive neutrality
    • Typically not a difficult requirement for government
      to meet
    • See Mueller v. Allen (1983): Court is reluctant to
      “attribute unconstitutional motives to the states,
      particularly when a plausible secular purpose …
      may be discerned from the face of the statute.”
       – Facial neutrality may be sufficient
       – But sometimes Court will look past face of statute
               LEMON TEST
• Observations on Lemon, cont’d
  – Secular purpose, cont’d
     • Court may look past facial purposive neutrality in
       public school indoctrination cases. See Edwards
     • Court also emphasized genuine purposive
       neutrality in recent Ten Commandments display
       case. See McCreary County v. ACLU (2005)
  – Effects inquiry
     • Since purposive neutrality is generally a low bar,
       most analysis focuses on effects
               LEMON TEST
• Observations on Lemon, cont’d
  – Effects inquiry, cont’d
     • Most analysis has come in two lines of cases:
       school funding (assistance to religious schools)
       and religious speech
     • In both lines of cases, the crucial issue is neutrality
        – In school funding cases, government is neutral if
            » Government does not define benefit recipients by
              reference to religion; and
            » Benefits do not result in governmental indoctrination
            » Controlling case is Agostini v. Felton (1997)
               LEMON TEST
• Observations on Lemon, cont’d
  – Effects inquiry, cont’d
     • Neutrality, cont’d
        – In religious speech cases, if government opens a forum
          for speech, Establishment Clause does not require (or
          permit) that religious speakers be excluded from forum
        – See, e.g., Lamb’s Chapel v. Center Moriches Union Free
          School Dist. (1993); Widmar v. Vincent (1981)
  – Lemon has been criticized by several Justices
    but continues to hang on
• Lynch v. Donnelly (1984)
  – Justice O’Connor, in a concurring opinion,
    announced what has come to be known as
    endorsement test
  – Presented it as an explanation or clarification
    of Lemon test
  – An endorsement of religion is prohibited
    because it makes adherence to a religious
    view relevant to a person’s standing in the
    political community
• Lynch, cont’d
  – Those who adhere to the religious views
    endorsed by government are made to feel as
    political insiders; those who do not are made
    to feel as outsiders
  – Looks at purpose and effect from the
    standpoint of the speaker’s (government’s)
    intent and from the standpoint of the listener’s
    or viewer’s (citizen’s) understanding of the
• Lynch, cont’d
  – Purpose
     • Endorsement retains the secular purpose
     • “The proper inquiry under the purpose prong of
       Lemon…is whether the government intends to
       convey a message of endorsement or disapproval
       of religion.” Lynch (O’Connor, concurring)
     • Not clear that this elaboration really adds to or
       clarifies the Lemon purpose inquiry, because still
       requires determining government intent
• Lynch, cont’d
  – Effect
     • Crucial issue is whether the government’s
       message has the effect of communicating,
       intentionally or not, an endorsement or disapproval
       of religion
     • Communication of this message makes religion
       relevant to standing in the political community
     • Question is “what viewers may fairly understand to
       be the purpose” of the message
• Lynch, cont’d
  – Effect, cont’d
     • Judged by the reasonable observer standard
     • “[The] reasonable observer…must be deemed
       aware of the history and context of the community
       and forum in which the religious display appears.”
       Capitol Square Review & Advisory Bd. v. Pinette
       (1995) (O’Connor, concurring)
     • Also “recognize[s] the distinction between speech
       the government supports and speech that it merely
       allows…” Id.
• Application seems to be limited to religious
  activities at public schools in conjunction
  with school events
  – Lee v. Weisman (1992) held that school
    sponsored prayer at graduation would result
    in coercion
  – Santa Fe Ind. School Dist. v. Doe (2000)
    relied on Lee to find that school sponsored
    prayer at high school football games would be
• Justice Kennedy is leading proponent
  – “Absent coercion, the risk of infringement of
    religious liberty by passive or symbolic
    accommodation is minimal.” Allegheny
    County v. ACLU (1989) (Kennedy, concurring
    and dissenting in part)
• Minority view
  – Force of law and threat of penalty. See, e.g.,
    Lee (Scalia, dissenting)
• Most often, the issue is effects: is the
  principal or primary effect of the law or
  practice to advance or inhibit religion?
• Cases have focused on two inquiries
  – Question 1: Is government aid being supplied
    directly to religious schools, or only indirectly
    as a result of private choice?
     • Private choice severs the causal indoctrination
• Two inquiries, cont’d
  – Question 2: If aid flows to religious institutions
    other than through private choice, is the aid
    being used in such a way that the government
    can be said to have engaged in religious
     • Court seems to have settled on a rule that the
       challenger must show that the aid has resulted in
       religious indoctrination. Mitchell (O’Connor,
• Private choice
  – Government is neutral if aid flows to religious
    institutions only as a result of “genuinely
    private choices” by individuals
  – Sometimes called the private choice doctrine
  – Examples of private choice
     • Mueller v. Allen (1983): state income tax deduction
       for educational expenses incurred at any nonprofit
       elementary or secondary school
• Private choice, cont’d
  – Examples of private choice, cont’d
     • Witters v. Washington Dept. of Svcs. (1986): state
       educational grant to blind student, who chose to
       attend private religious college
     • Zobrest v. Catalina Foothills Sch. Dist. (1993):
       state could provide sign-language interpreter for
       deaf student attending private Catholic school
  – In each case, government aid flows to
    religious institution because of private choice
• Private choice, cont’d
  – A new direction? See Mitchell v. Helms
     • Plurality approved direct government aid to
       schools based upon per capita attendance figures
     • Attendance used as a proxy for private choice
     • Did not get 5 votes because Justice O’Connor
       concurred only in judgment: “I do not believe that
       we should treat a per-capita-aid program the same
       as the true private-choice programs considered in
       Witters and Zobrest.”
• Indoctrination
  – When government provides aid directly, other
    than through private choice
  – “[W]e have long been concerned that secular
    government aid not be diverted to the
    advancement of religion.” Mitchell (O’Connor,
  – Court used to presume that aid like supplies
    and equipment would be used to indoctrinate
• Indoctrination, cont’d
  – Court will not presume that anymore
  – See Mitchell (O’Connor, concurring): Agostini
    repeatedly emphasized that “plaintiffs raising
    an Establishment Clause challenge must
    present evidence that the government aid in
    question has resulted in religious
  – Absent such proof, government aid is neutral
    and satisfies effects test
• Private versus public distinction
  – Private speaker is entitled to voice religious or
    irreligious preferences or beliefs
  – As a general rule, government may not
• Question is whether government is
  engaging in religious speech
  – Has government itself spoken?
  – Is private speech attributable to the
• Private speech in public forums
  – When government merely permits, on a
    nondiscriminatory basis, private religious
    speech in a public or designated public forum,
    no Establishment Clause violation.
  – Widmar v. Vincent (1981)
     • Public university denied use of facilities
     • Said allowing use would violate Establishment
       Clause; Court applied Lemon and disagreed
• Private speech – public forums, cont’d
  – Widmar, cont’d
     • Lemon analysis
        – Nondiscriminatory open-forum policy had secular
        – Making benefit (use of facilities) available to a broad
          spectrum of groups – both religious and non-religious –
          was proof of a secular effect
        – Minimized entanglement; enforcing prohibition on
          religious speech would result in greater entanglement
  – See also Board of Educ. v. Mergens (1990)
• More difficult cases involve symbolic
  speech on government property
  – Government or private parties place one or
    more religious symbols – creche, menorah,
    cross, Ten Commandments – on public
  – Endorsement test seemed to be preferred
    analytical model until McCreary (purposive
    neutrality) and Van Orden (history)
  – Unclear where future cases will go
• Lynch v. Donnelly (1984)
  – Applied Lemon test in concluding that display
    of city-owned creche, as part of larger holiday
    display in private park, did not violate
    Establishment Clause
     • No effect of advancing or promoting religion
     • No more an endorsement than others Court had
       allowed in the past
  – Justice O’Connor’s endorsement test
• Allegheny County v. ACLU (1989)
  – Five Justice majority seemed to agree that
    endorsement was the test
  – The “essential principle” of Establishment
    Clause was that it “prohibits government from
    appearing to take a position on questions of
    religious belief or from ‘making adherence to
    a religion relevant in any way to a person’s
    standing in the political community.’” (quoting
    Lynch (O’Connor concurring))
• Allegheny County, cont’d
  – Identifying themes
    • The majority
       – Favored endorsement
       – Context mattered: creche was a stand-alone display;
         menorah, though a religious symbol, was surrounded by
         secular symbols which lessened possible endorsement
    • The dissenters
       – Pointed to history of religion in public sphere and
         downplayed religious significance of displays
       – Would apply much more narrow test – like coercion
• McCreary County v. ACLU (2005)
  – Focused on purposive neutrality
     • Objective observer standard
     • The secular purpose “has to be genuine,
       not a sham, and not merely secondary to a
       religious objective.”
     • In a footnote, Court distinguished
       deference to purpose here from cases of
       “economic legislation”
• Van Orden v. Perry (2005)
  – Lemon test not useful in assessing the
    “passive monument” state erected on public
  – Acknowledged that Ten Commandments a
    religious symbol, but said OK because of
    history of religion in public affairs
  – Justice Breyer was swing vote
• Whatever else may be said about
  Establishment Clause doctrine, Court has
  drawn a fairly clear line at public
  schoolhouse door
  – Applied Lemon and coercion tests to strike
    laws and policies aimed at establishing
    religion in public classrooms
  – These cases have nothing to do with private
    religious speech in public schools
• Cases can be divided into several groups
  – Prayer cases – Lemon or coercion analysis
    • Wallace v. Jaffree (1985)
       – Legislative history showed only purpose of law was to
         return prayer to public schools
       – Justice O’Connor, concurring, argued for narrow purpose
         inquiry but said Lemon test could identify “sham secular
    • Lee v. Weisman (1992) applied coercion analysis
      to strike prayer at school graduation ceremony
• Prayer cases, cont’d
  – Santa Fe Ind. Sch. Dist. v. Doe (2000)
    seemed to apply a mixed analysis, including
    purpose, endorsement, and coercion, to find
    policy of prayer at public high school football
    games violated Establishment Clause
  – See also Engel v. Vitale (1962) (invalidating
    statute that required school prayer); Abington
    School District v. Schempp (1963) (striking
    statute authorizing Bible readings)
• Symbolic speech
  – Stone v. Graham (1980)
    • State law required posting of Ten Commandments
      in public school classrooms
    • Per curiam opinion applied Lemon
       – No recitation of supposed secular purpose could “blind”
         Court to the fact that posting sacred religious text in
         classrooms “serves no educational function”
       – Only effect would be to induce children to “read, meditate
         upon, perhaps to venerate and obey” the
    • Endorsement analysis would also apply
• Curriculum cases
  – Involve efforts to introduce creationism (or
    “creation science” or “intelligent design”) into
    science classroom
  – Court has repeatedly rejected
     • Epperson v. Arkansas (1968) (statute that
       prohibited teaching evolution was unconstitutional)
     • Edwards v. Aguillard (1987) (invalidated, on
       purposive neutrality grounds, statute mandating
       teaching of creation science if evolution taught)

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