Establishment Controversies

The Bill of Rights Institute
Memphis, TN
October 28, 2010
Artemus Ward
Department of Political Science
Northern Illinois University
King George III
Head of the Church of England
Ruler of the American Colonies
The First Amendment states: “Congress shall make
no law respecting an establishment of religion”
What does this mean?
There are two broad interpretations:
Separationist—strict division between government
and religion;
Accommodationist—allows intermingling between
government and religion.
The justices of U.S. Supreme Court have generally
fallen into one camp or the other. Accordingly,
Supreme Court precedent in this area is mixed.
The Court upheld a state’s
reimbursement to parents of
parochial school children for the
cost of busing their kids to
religious schools.
The Court reasoned that the
taxpayer funds were permissible
because they went to the
children/parents and not the
religious schools. But . . .
The Court also said, “In the words
of Jefferson, the clause against
establishment of religion by law
was intended to erect ‘a wall of
separation between Church and
In a majority opinion by Justice Hugo Black, the Court
went on to say:
“The ‘establishment of religion’ clause of the First
Amendment 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 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 nonattendance.
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.”
New York composed and required a prayer to begin
the school day: “Almighty God, we acknowledge
our dependence upon Thee, and we beg Thy
blessings upon us, our parents, our teachers, and
our Country.”
 Justice Black held: “Petitioners argue [that] the
State's use of the Regents' prayer in its public
school system breaches the constitutional wall of
separation between Church and State. We agree
since we think that the constitutional prohibition
against laws respecting an establishment of
religion must at least mean that in this country 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.”
Members of the group that
challenged New York’s compulsory
prayer law.
Pennsylvania law declared that at least 10 verses from the Bible
shall be read without comment at the beginning of each public
school on each school day. At Abington High, the verses were
read over the loud speaker and were then followed by a
recitation of the Lord's prayer, during which students stood and
repeated the prayer in unison. Students who did not want to
participate could leave the room.
The Court asked what the purpose and primary effect of the
policy were and found it unconstitutional. The justices reasoned
that the state passed the law to promote religion and the effect
was to coerce students to participate in religion.
A majority of Americans have never approved of the school
prayer and bible reading decisions. Today only about 1/3 agree.
At issue was a state law that reimbursed religious schools
for non-religious textbooks and salaries for non-religious
The Court articulated what became known as the “Lemon
Test” – a judicial standard based on past establishment
A policy must pass all three parts to be valid:
Does program at issue have a secular legislative
Is the primary EFFECT to inhibit or advance religion?
Does the legislation foster an EXECESSIVE
This test became divisive in subsequent cases and though
it has been slightly modified, it is essentially in tact as
good law today.
Applying the three-part framework, Chief
Justice Burger struck down the state law based
on the third prong.
 He reasoned that unlike textbooks, it was easy
for teachers to inject religion into their
teaching. Though the aid only went to teachers
of "secular" subjects, they were employed by
and subject to supervision and disciplinary
action by the church. Because most lay teachers
were of the Catholic faith, there was potential
for public funds to be used for religious
instruction. Because of this potential danger,
the state would have to continually monitor the
school to make sure the money was being
distributed correctly. This would be excessive
Marian Ward, a 17-year-old student, says a
prayer over the PA system before a Santa
Fe High School football game.
In Marsh v. Chambers (1983) the Court upheld the
practice of opening a state legislative session with a
prayer, relying on the longstanding practice of
Congress and of the founders.
But is a state-approved, clergy-led prayer at a public
school graduation ceremony constitutional?
Justice Kennedy initially voted that it was, switched his
vote, and finally struck down the policy for a 5-4
Instead of applying the Lemon Test, Kennedy applied
what Justice Scalia mockingly called the “psychocoercion test”
Kennedy said that “subtle coercive pressures exist and
the student had no real alternative which would have
allowed her to avoid the fact or appearance of
Similarly, in Santa Fe Independent School District v. Doe
(2000) the Court struck down (6-3) a student-led
prayer at a High School football game.
For a 5-4 majority, Chief Justice
Rehnquist upheld a government
program providing tuition vouchers
for Cleveland schoolchildren to
attend private (including religious)
He applied the Lemon test and
reasoned that because the vouchers
went to parents and they made a
“private choice” the program was
“No reasonable observer would think a neutral program of private choice,
where state aid reaches religious schools solely as a result of the
numerous independent decisions of private individuals, carries with it the
imprimatur of government endorsement.”
The dissenters (Stevens, Souter,
Ginsburg, and Breyer) emphasized two
key points:
Religious use of public funds will
increase the risk of religious strife and
religiously-based social conflict—the
very thing the Establishment Clause
was put in place to avoid
Public funds allow religious schools to
divert money to religious instruction
that would have been used for secular
purposes: scholarships, busing,
textbooks, etc.
The Pledge of Allegiance has included the
phrase “under God” since 1954.
California requires public elementary school
teachers to lead students in the Pledge.
Newdow, an atheist, challenged the Pledge
that his daughter was required to recite.
The Court ducked the issue by holding that
Newdow, as a divorced father who did not
have legal custody of his daughter, did not
have standing to bring the suit. In his
opinion for the Court, liberal Justice John
Paul Stevens added: “[The Pledge’s]
recitation is a patriotic exercise designed to
foster national unity and pride in those
Still, Rehnquist, O’Connor, and Thomas went
to great lengths in separate opinions to
explain why the Pledge was constitutional.
It may only be a matter of time before the
Court decided the issue on the merits.
In two cases, the Court held 5-4 that:
Two large, framed copies of the Ten Commandments could not be displayed in a courthouse
building because they were placed there relatively recently and were displayed by themselves –
McCreary County v. ACLU (2005)
But, a six-foot monument displaying the Ten Commandments could be placed on public grounds
because it was longstanding and was placed with other historical monuments – Van Orden v.
Perry (2005).
In each case Justice Stephen Breyer was in the majority. He explained his reasoning in a
concurring opinion in Van Orden:
“As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went
unchallenged (until the single legal objection raised by petitioner). And I am not aware of any
evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest
more strongly than can any set of formulaic tests that few individuals, whatever their system of
beliefs, are likely to have understood the monument as amounting, in any significantly detrimental
way, to a government effort to favor a particular religious sect, primarily to promote religion over
nonreligion, to "engage in" any "religious practic[e]," to "compel" any "religious practic[e]," or to
"work deterrence" of any "religious belief.“ Those 40 years suggest that the public visiting the capitol
grounds has considered the religious aspect of the tablets' message as part of what is a broader
moral and historical message reflective of a cultural heritage.”
In general, the liberals are separationist and the
conservatives are accommodationist.
While the Lemon test is still good law, there are other tests
for specific areas of Establishment jurisprudence such as the
“coercion” test used in Weisman.
What will the recent turnover on the Court mean for the
future of the Establishment Clause? Will the Lemon test