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Freedom of Religion

Application and Interpretation of the Establishment Clause

Accommodation

Accommodationists tend to emphasize tradition and heritage in their decisions. In other words, they will likely consider a governmental practice to be constitutional if it is part of the long-standing traditions of our nation, especially if it was a practice that the Founders themselves followed. Perhaps the best example of this school of thought is Marsh v. Chambers (1983) in which the Supreme Court upheld Nebraska’s practice of appointing a chaplain to open its sessions with prayer:

The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom. In the very courtrooms in which the United States District Judge and later three Circuit Judges heard and decided this case, the proceedings opened with an announcement that concluded, “God save the United States and this Honorable Court.” The same invocation occurs at all sessions of this Court.

While such an approach arguably respects both the original meaning given to the Constitution and the judgments of intervening generations, it also runs the risk of enshrining certain governmental actions as constitutional simply “because we’ve always done it that way.”

Strict Separation

Strict separationism was the rule through much of the mid-to late 20th century, especially during and immediately after the Chief Justiceship of Earl Warren (1953-1969). The Warren Court declared several long-standing practices to be violations of the Establishment Clause, including public school-sponsored prayer in Engel v. Vitale in 1962 and scripture readings in Abington School District v. Schempp (1963). Subsequent Courts rebuffed attempts to reintroduce similar practices in public schools, such as school-sponsored times for “silent meditation or voluntary prayer” in Wallace v. Jaffree (1985), graduation prayers in Lee v. Weisman (1992), and prayers at high school football games in Santa Fe Independent School District v. Doe (2000).

Another flashpoint involving public schools involves the teaching of evolution, or rather, the teaching of alternate theories of human creation. The Court rejected the teaching of religiously based “creation science” in Edwards v. Aguillard (1987). A lower federal court subsequently declared the teaching of “intelligent design” to violate the Establishment Clause in Kitzmiller v. Dover Area School District (2005). 

The clearest statement of strict separationism is the rule announced in Lemon v. Kurtzman (1971). According to the Lemon test, a governmental action must satisfy three requirements in order to be consistent the Establishment Clause. First, it must have a secular purpose. Second, its primary effect can neither advance nor inhibit religion. And finally, it cannot create excessive entanglement between government and religion. This is a very tough test, which is perhaps appropriate for a school of thought that wants to keep government and religion strictly separated.

Neutrality

One way to think about the neutrality school of thought is that it takes the second prong of the Lemon test—the requirement that government action cannot advance nor inhibit religion—and puts it front and center. 

Another way to think of it is that constitutionality, like beauty, is in the eye of the beholder. The neutrality school of thought focuses upon the effect of government action on the average onlooker. Thus, if government does something to make members of religious minorities feel that they are second-class citizens—if it endorses a particular religion or even just religion generally—then that action likely violates the Establishment Clause.

This “endorsement rule” was announced by Justice Sandra Day O’Connor in a concurring opinion in Lynch v. Donnelly (1984):

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition . . . [by] endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.

Although not adopted by the majority in Lynch v. Donnelly, this “endorsement test” has been a major guiding principle in many of the Court’s subsequent decisions. These decisions are very fact-specific; the Court will look very closely at a situation to determine whether governmental endorsement is present. For example, in County of Allegheny v. ACLU (1989), the Court held that one governmental holiday display, consisting only of a nativity scene, impermissibly endorsed the Christian religion, while a second display, which contained a variety of Jewish, Christian, and secular symbols, did not.