An alliance or entanglement between government and religion prohibited by the First Amendment to the U.S. Constitution.
The Supreme Court made a relatively late entrance into the long debate about the appropriate relation between
In its earliest significant interpretation of the establishment clause, the Court addressed the contentious issue of whether and to what extent the establishment clause limited government aid to private religious schools. In Everson v. Board of Education of Ewing Township
Finding principles to transform the sparse words of the establishment clause into a guide for the various intersections between government and religion in modern society was no easy task. Although Everson outlined in broad strokes the general contours of the establishment prohibition, it did not settle the many issues that still lay before the Court. The Court made its most enduring attempt to craft a more precise statement in 1971, when it eventually settled on what would thereafter be referred to as the Lemon test. Lemon v. Kurtzman
Sustained criticism of the Lemon test proliferated in the following years, both on and off the Court. Critics argued that the test was in principle hostile to religion and that in practice it had produced inexplicable results. Under the test, for example, the Court had approved loans of secular textbooks to parochial schools but not loans of maps. Similarly, the Court in Everson had approved reimbursements of expenses of parents to transport their children to parochial schools, but it subsequently invalidated state programs that attempted to subsidize the cost of field trips taken by parochial school children. Notwithstanding this criticism, the Court declined to overrule Lemon explicitly, although during the 1980’s and 1990’s it increasingly formulated the establishment prohibition in terms other than those adopted in Lemon. Furthermore, a majority of the Court continued to construe the establishment clause as placing significant limits on direct aid to religious institutions.
The Widmar principle was regularly invoked by the Court during the 1980’s and 1990’s to uphold claims brought by religious believers alleging that they had been discriminated against in the name of the establishment clause. In Lamb’s Chapel v. Center Moriches Union Free School District
The Court’s recent enthusiasm for equality concerns has partially breached the so-called “wall of separation” between church and state that once characterized the Court’s pronouncements concerning the establishment clause. However, in one area, at least, this wall of separation remains formidable. Beginning with the school prayer decisions in the 1960’s, the Court has been especially vigilant in policing alliances between government and religion in the public schools.
After the first decisions in the school prayer cases, the Court developed the three-part Lemon test, which required that laws and official government policies have secular purposes and effects and not excessively entangle government and religion. When the Court entertained a new series of cases involving religion and public schools in the 1980’s, it focused especially on the secular purpose requirement. In the first case, Stone v. Graham
The vigilance with which the Court patrolled the boundaries of church and state in the public schools did not always manifest itself in other public contexts. The Court wrestled with the long-standing presence in American life of a measure of religiousness in public contexts and sought to harmonize this presence with its establishment doctrine. For example, in Marsh v. Chambers
The last two decades of the twentieth century saw increasing dissatisfaction on the Court with its establishment doctrine. The three-part Lemon test that had governed the Court’s resolution of establishment issues for a time seemed less capable of continuing to command assent among a majority of justices. In this state of disarray, individual members of the Court attempted to articulate new understandings of the antiestablishment principle. Justice William H. Rehnquist, for example, suggested in his dissent to the Court’s decision in Wallace v. Jaffree that the establishment clause should be understood only to prevent government preference for one religion over another. So long as government endorsed or aided religion in general, he contended, rather than endorsing or aiding a particular religion, then the establishment clause was not violated. Justice Anthony M. Kennedy, in the early 1990’s, seemed to propose his own key to understanding the establishment clause. In Lee v. Weisman, for example, his opinion for the Court focused on the coerciveness of a graduation prayer on those who did not share the religious tenets expressed in the prayer. This emphasis seemed to suggest that noncoercive government alliances with religion might survive an establishment clause challenge. Finally, and most important, in the mid-1980’s Justice Sandra Day O’Connor proposed that the hallmark of an establishment clause violation was its purpose or effect in endorsing religion generally over nonreligion or in endorsing a particular religion over others. She first elaborated this no-endorsement vision of the establishment clause in a series of concurring opinions, beginning with the first nativity scene case, Lynch v. Donnelly. By the end of the 1980’s, however, her no-endorsement test seemed to have captured a majority view on the Court because the Court applied her test to resolve another nativity scene issue in Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter. However, during the 1990’s, Justice O’Connor’s vision of the establishment clause was not featured again in opinions for the Court. All during this decade, no majority ever coalesced to overrule the three-part test of Lemon. Instead, the justices were fragmented in their views of the establishment clause, agreeing sometimes on the result in particular cases but seldom agreeing on the broader principles that explained these results.
Religion is a subject well served by studies of every aspect of its place in American history, government, and society. A good starting point for research is Edwin S. Gaustad’s Proclaim Liberty Throughout All the Land: A History of Church and State in America (New York: Oxford University Press, 2003). Among the many fine examinations of constitutional interpretations of the First Amendment’s religion clauses are Melvin I. Urofsky’s Religious Freedom: Rights and Liberties Under the Law (Santa Barbara, Calif.: ABC-Clio, 2002), Kermit L. Hall’s Conscience and Belief: The Supreme Court and Religion (New York: Garland, 2000), Daniel O. Conkle’s Constitutional Law: The Religion Clauses (New York: Foundation Press, 2003), and Phillip E. Hammond’s Religion on Trial: How Supreme Court Trends Threaten the Freedom of Conscience in America (Walnut Creek, Calif.: AltaMira Press, 2004). Comprehensive collections of Court decisions relating to the First Amendment’s religion clauses are James John Jurinski’s Religion on Trial: A Handbook with Cases, Laws, and Documents (Santa Barbara, Calif.: ABC-Clio, 2003) and Toward Benevolent Neutrality: Church, State, and the Supreme Court, edited by Ronald B. Flowers and Robert T. Miller (Waco, Tex.: Baylor University Press, 1998). Similar, though less inclusive collections of Court cases may be found in The Believer and the Powers That Are: Cases, History, and Other Data Bearing on the Relation of Religion and Government, by John Thomas Noonan, Jr. (New York: Macmillan, 1987), and Religious Liberty in the Supreme Court: The Cases That Define the Debate over Church and State, edited by Terry Eastland (Grand Rapids, Mich.: Wm. B. Eerdmans, 1995). The Court has regularly consulted the history of church-state relations in colonial and revolutionary America to inform its interpretation of the establishment clause. Thomas Curry’s The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986) contains an excellent treatment of these periods. A Nation Dedicated to Religious Liberty: The Constitutional Heritage of the Religion Clauses, by Arlin M. Adams and Charles J. Emmerich (Philadelphia: University of Pennsylvania Press, 1990), combines both coverage of the historical background of the religion clauses and their current interpretation by the Court. For an influential argument that the Court has given too prominent a place to religious skepticism in its interpretation of the religion clauses, see Mark DeWolfe Howe’s The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago: University of Chicago Press, 1965). An opposing viewpoint may be found in The Godless Constitution: The Case Against Religious Correctness, by Isaac Kramnick and R. Laurence Moore (New York: W. W. Norton, 1996). Everson Revisited: Religion, Education, and Law at the Crossroads, edited by Jo Renee Formicola and Hubert Morken (Lanham, Md.: Rowman & Littlefield, 1997), explores the significance and future of the Court’s seminal establishment clause decision in Everson v. Board of Education. Robert S. Alley’s School Prayer: The Court, the Congress, and the First Amendment (Buffalo, N.Y.: Prometheus Books, 1994) provides an evenhanded treatment of one of the most contentious areas of the Court’s establishment clause law. The increasing prominence of the principle of equality over that of separation is explored and supported in Equal Treatment of Religion in a Pluralistic Society, edited by Stephen V. Monsma and J. Christopher Soper (Grand Rapids, Mich.: Wm. B. Eerdmans, 1998). This movement is contrasted with the case for nearly total separation of government and religion made by Marvin E. Frankel, a former New York federal judge, in Faith and Freedom: Religious Liberty in America (New York: Hill & Wang, 1994).
Abington School District v. Schempp
Agostini v. Felton
Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter
Edwards v. Aguillard
Engel v. Vitale
Everson v. Board of Education of Ewing Township
Evolution and creationism
Lemon v. Kurtzman
O’Connor, Sandra Day
Religion, freedom of
Zorach v. Clauson