The First Amendment: Freedom of Religion

§9.2.3 Compromise Approaches

The Court has applied at least three compromise approaches to the Establishment Clause that borrow, more or less, from the competing theories of separationism and nonpreferentialism. First, the Court has, on occasion, tempered the strictures of separationism by limiting its scope to those governmental actions that can be described as creating an endorsement of religion. Wallace v. Jaffree, 472 U.S. at 56. Thus, governmental action that assists religion in general, but that does not place the government’s stamp of approval on religion will not violate this variation of separationism. See also Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring). From this perspective, a moment of silence at the beginning of the school day would provide an opportunity for students to pray, but would not necessarily indicate any governmental endorsement of religion or of prayer.

Next, the Court has also applied a coercion test to measure the extent to which the government may promote a seemingly neutral religious practice. In Lee v. Weisman, 505 U.S. 577 (1992), the Court held that a public high school could not invite a religious cleric to recite a nondenominational prayer at a high school graduation because, given the context and the age of the participants, the recital of the prayer would coerce unwilling students into participating in a religious practice. See Santa Fe Independent School Dist. v. Doe, 530 U.S. 290 (2000) (applying coercion test to strike down school-sponsored prayer at high school football games).

Finally, the Court has sometimes used tradition and historical practice to define the scope of the Establishment Clause, the idea being that the Establishment Clause should not be interpreted to void practices that have long been an accepted part of our social customs. For example, since the days of John Marshall, all sessions of the Supreme Court have opened with the proclamation, “God save the United States and this Honorable Court.” It is quite unlikely that the Court would hold that this traditional practice violates the Establishment Clause. See Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state’s power to pay a chaplain to open sessions of the legislature with a prayer).

§9.2.4 The Lemon Test

In the early 1970s, the Court attempted to reduce its Establishment Clause jurisprudence to a simple three-part formula, which is now commonly referred to as the Lemon test. Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the Lemon test, governmental action

•         Must have a secular purpose;
•         Must have a primary effect that neither advances nor inhibits religion; and
•         May not foster an excessive entanglement with religion.

The Lemon test is largely a product of separationist theory and, hence, a matter of considerable controversy with those members of the Court who prefer the nonpreferential model. See McCreary County v. ACLU, 545 U.S. at 885 (Scalia, J., dissenting). Moreover, as will be discussed below, the Lemon test has sometimes been ignored by the Court, thus rendering the test less than completely reliable as a measure of constitutionality. Nonetheless, the Lemon test remains an important part of the Court’s overall Establishment Clause jurisprudence; in 2005, it was again endorsed by a majority of the Court. McCreary County v. ACLU, 545 U.S. at 859-864.

The secular purpose element of the Lemon test requires that a law have a nonreligious purpose. This does not mean that the sole purpose of a challenged law must be secular, but only that the government must articulate a nonfrivolous secular purpose for the law. Thus, a law that is passed, in part, to advance religious doctrine is not necessarily invalid under this element if there is also a secular purpose for the law. In general, the Court tends to be deferential toward the government in applying this element.