United States Constitution

PREAMBLE : We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution



First Amendment: Establishment Clause

The Establishment Clause prevents the government, whether it be federal, state, or local, from establishing an official religion. Three main theories exist regarding the Establishment Clause.The first view is Jefferson’s “strict separation”, which seeks the maximum possible separation of church and state. One consistent problem with this approach is that taken to its fullest, the government risks actually infringing on religious freedom. Additionally, many aspects of government and American traditions are already linked (such as the frequent mention of god in oaths and on money).The next view is the neutrality theory. This requires that government treat all religions, as well as lack of religion, neutrally. The government cannot show favoritism or preference for any one belief over the other, either literally or symbolically. The last view is the accommodation theory. Supporters of this interpretation believe that religion should be accepted as important and necessary to society, and that government should seek to accommodate it as long as government doesn’t establish its own church, force religious practice, or favors one religion over others. Accommodation theory views America as a plurality of belief systems rather than a secular society. Critics of this view believe that very little in the end will ever be held to be violating the Establishment Clause if this reasoning is used.
Discrimination Important Cases
Regardless of what doctrine of the Establishment Clause a Justice may support, it is clear that discrimination – favoring one religion over others- is expressly forbidden. If a law is discriminatory on its face, it must meet a strict scrutiny standard. In Larson v. Valente, the Court held that a Minnesota law was unconstitutional because it exempted only religious organizations who’s financial support was at least 50% funded by its members from reporting requirements. The Court stated that no one religion could be given preference over the others, and that by exempting only religious organizations with half their funds donated, the law favored large institutions like the Catholic church rather than others. Additionally, the government could not offer any compelling reason why this should be so.In Board of Education of Kiryas Joel Village School District v Grumet, decided in 1994, the Court struck down a New York law which created a separate public school district for the disabled children of a religious sect. The Court held this was an impermissible preference for one religion over others – the state had created a public school district just so that this group’s disabled children would not have to interact with others. A plurality in the opinion also expressed that this violated the Establishment Clause because allowing one religious group to control the political process (passing a law to create its own school district) was an impermissible combination of government and religion. Larson v. Valente (1982)Board of Ed. of Kiryas Joel Village School Dist. v. Grumet (1994)
Lemon Test Important Cases
Laws that are not discriminatory on their face can still be in violation of the Establishment Clause. If the clause is not discriminatory, the Court proceeds with the “Lemon Test” – a test derived from the influential case Lemon v. Kurtzman. This test has survived and evolved through use since the case was decided in 1971, but not without controversy.Lemon involved two different state statutes that both were challenged as violating the Establishment Clause. The statutes provided state funding to supplement religious private school teachers for materials and time needed to teach certain secular subjects. The schools in question were overwhelmingly Roman Catholic.The Court developed a test to see if the statutes, although non-discriminatory on their face, violated the Establishment Clause. First, it must have a secular legislative purpose. Second, its primary effect cannot advance or inhibit religion. Lastly, it cannot involve excessive government entanglement with religion. Determining that the legislation did have a secular purpose, and that its primary effect did not inhibit or advance religion, the Court still struck down the law because it entangled government with religion. The schools were considered an essential part of Catholic doctrine, and in both cases only Catholic private school teachers benefited. Religious teachers would likely be unable to stay religiously neutral. In attempting to make sure these teachers did stay neutral, the state would need to have the classrooms under constant surveillance – an impermissible entanglement of government with religion.
Secular Purpose

The first prong of the Lemon test requires that the law has been passed with a secular purpose. Some Justices such as Justice Scalia have been highly critical of this prong as well as the test in general. They argue that determining the motivation for legislation is subjective and inaccurate, and that the Lemon test has been applied inconsistently.

Despite this, the test has yet to be overruled. Several cases have been decided based on the first prong. In McCreary County, Ky. v. ACLU of Ky., the Court ruled against a county attempting to post the Ten Commandments in government buildings. The content of the Ten Commandments and the context of the county’s attempts removed all doubt that the action had no secular purpose, and was therefore unconstitutional.

Similar rulings have occurred in public schools. In public schools, the Ten Commandments being posted in every class (Stone v. Graham) as well as a moment of silence being provided for prayer (Wallace v. Jaffree) were both struck down as lacking any secular purpose.

Some laws with religious origins have been maintained despite this, if they have attained a broader secular use. In McGowan v. Maryland, the Court upheld a law requiring businesses to close on Sundays. Although they acknowledged the religious origin and influence, they noted that the “present purpose” is to provide a general day of rest for the public. The religious influence did not interfere with the secular purpose of the law.

Secular Effect

The second prong requires that the effect of the legislation is secular as well – not inhibiting or advancing religion. Often, this second prong analyzes whether or not the government is symbolically endorsing one religion over another.

In contrast to McGowan v. Maryland, the Court struck down a Connecticut law which made no person required to work on their Sabbath in Estate of Thornton v Caldor. The effect of this was to create a privilege for people to not work due to religion alone, which favors religion over other interests.

According to the Court’s 1987 decision in Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, the important question is whether the law has the effect of making government advance religion – not whether or not the law allows religions to advance themselves. In Amos, religious organizations’ exemption to Title VII’s prohibition against religious discrimination in employment was upheld under the Lemon test. Under the secular effect prong, the Court held that “a law is not unconstitutional because it allows churches to advance religion… For a law to have forbidden effects… the government itself has advanced religion…”

Excessive Entanglement

In Lemon, the Court considered a statute to be in violation of the last prong if it involved “comprehensive, discriminating, and continuing surveillance” or “enduring entanglement.” In Lynch v. Donnelly, a 1984 decision regarding a Christmas nativity scene, the Court held that the scene’s inclusion in a city’s Christmas display did not violate the third prong because there was only minimum contact between the church and the state and no ongoing maintenance was required.
 Lemon v. Kurtzman (1971)McCreary County v. American Civil Liberties Union (2005)Stone v. Graham (1980)

Wallace v. Jaffree (1985)

McGowan v. Maryland (1961)

Estate of Thornton v. Caldor, Inc. (1985)

Court of Presiding Bishop v. Amos (1987)

Lynch v. Donnelly (1984)

Religious Symbols on Government Property Important Cases
Placed by Private Party

Religious free speech also occurs when private individuals place religious symbols on government property. In Capital Square Review and Advisory Board v. Pinette, a state agency refused to allow the Klu Klux Klan a permit to erect a large cross in a park across from the state capitol. The state agency claimed that this violated the Establishment Clause, but the Court ruled on behalf of the KKK. The opinion had no majority, with the Justice’s offering several different interpretations.

Justice Scalia stated that compliance with the Establishment Clause was a compelling government reason that meets strict scrutiny, but wasn’t an issue here if the government treated religious speech on the same level as secular speech. Justice O’Connor focused on whether or not the community would understand the cross as government endorsement of religion: she determined they would not, given the context and history of the cross, the community, and the Klu Klux Klan. Without this risk, it did not violate the Establishment Clause. Justice Stephens wrote a dissent where he argued that the observer in O’Connor’s analysis should not be presumed to know the area and context, and therefore the large cross would seemingly endorse religion.

Placed by government

Religious symbols can be placed on government property only if they do not give the appearance that the government is endorsing religion or any particular religion. In the 1984 decision Lynch v. Donnelly, the Court upheld a city’s placement of a nativity scene in a park. Chief Justice Burger wrote for the majority and relied heavily upon the historical involvement of religion with American government. Burger concluded that the secular purpose was to celebrate Christmas and depict the origins of the holiday, and that this was permissible.

The Court reversed course in the 1989 decision, recognizing the inherently religious nature of a nativity scene in County of Allegheny v. American Civil Liberties Union. Two different settings were ruled on – a nativity scene in a stairwell, and a holiday display with a Christmas tree, menorah, and a sign saluting liberty. The Court upheld the holiday display because it involved multiple faiths and therefore did not endorse any particular one. The nativity scene alone, however, was struck down because it gave the appearance of endorsing only Christianity. The Court voted 5-4 that the nativity scene violated the Clause, while voting 6-3 that the holiday display was acceptable. The conservatives Justices on the Court at that time, including Rehnquist and Scalia, argued that both displays were acceptable.

The conservative members of the Court argued the same in later cases regarding religious displays on government property, believing that government should accommodate religion. Although the Court narrowly struck down Ten Commandments displays in courthouses in McCreary County, Kentucky v. ACLU of Kentucky, it also voted 5-4 to uphold a Ten Commandments statue next to the Texas Supreme Court. The swing vote in these decisions, Justice Breyer, determined that the historical significant and context of this particular monument in Texas showed that the government was not endorsing religion. This line of reasoning is very similar to that of the Capitol Square Review and Advisory Board v. Pinette, which focuses on what a reasonable observer familiar with the context would think about the monument.
 Capital Square Review and Advisory Board v. Pinette (1995)Lynch v. Donnelly (1984)County of Allegheny v. American Civil Liberties Union (1989)

McCreary County v. American Civil Liberties Union (2005)

Prayer in Governmental Proceedings Important Cases
The Court has upheld the use of legislative chaplains starting legislative sessions with a prayer. In Marsh v. Chambers, the Court considered the constitutionality of a state legislature using a minister to begin each session with a prayer. The Court avoided the Lemon test and instead focused on the historical background, determining that legislative sessions opening with prayer was deeply embedded in the history and tradition of the county. After establishing this, the Court held that this tradition held no threat to the Establishment Clause and was constitutional.Marsh was decided in 1983, 6 years before the Court decided County of Allegheny v. American Civil Liberties Union. Additionally, the prayer in Marsh had been changed by the minister giving it to make it non-denominational, thereby reflecting a broader variety of faiths. Some debate existed as to whether or not a prayer from only one religion could be given at a legislative session without violating the clause.In a 5-4 ruling in the 2014 case Town of Greece, NY v. Galloway, the Court held that a Christian prayer before a town meeting did not violate the Establishment Clause. The majority concluded that since this was within a tradition of the United States it was permissible. The Court majority determined that this prayer did not compel or pressure others attending the town meetings, and that the prayer and religious leaders leading it simply represented the predominantly Christian demographics of the town. As long as the town did not discriminate against others wishing to lead the prayer, or use the prayer in a way outside of a ceremonial introduction, it did not violate the Establishment Clause.

The vote split 5-4, with all the Catholic and conservative Justices making the majority, while the liberal and non-Catholic Justices dissented. The dissenters argued that the case was different from Marsh – the local government in Greece involved interaction with community members instead of just legislators, the prayer was of only one denomination, and the prayers were directed at the residents rather than the legislators. Additionally, the dissent criticized the lack of any effort by or the majority to require more diversity – religious minorities in the town risked exclusion and pressure.

 Marsh v. Chambers (1983)Town of Greece v. Galloway (2014)