Establishment Clause

Author:Daniel O. Conkle

Page 924

Three themes dominate recent Supreme Court decision making under the First Amendment's ESTABLISHMENT OF RELIGION clause. First, the Court has continued to follow the doctrinal framework of EVERSON V. BOARD OF EDUCATION (1947) and LEMON V. KURTZMAN (1971), but with increasing emphasis on the "endorsement or disapproval" inquiry advocated by Justice SANDRA DAY O'CONNOR. Second, the Court has steered a selective course in applying this framework, upholding certain governmental practices but invalidating others. Third, and potentially most significant, the Justices stand at the brink of a radical change in doctrine. Although a majority of the Court continues to follow Everson and Lemon, there is growing support for an alternative interpretation that would dramatically weaken the principle of SEPARATION OF CHURCH AND STATE.

In Everson, the Supreme Court adopted a broad interpretation of the establishment clause, one that forbids governmental favoritism for religion over irreligion as well as for one religion over another. Since 1971, this broad interpretation has been implemented through the three-part LEMON TEST. Under Lemon, a statute (or other governmental action) can be upheld only if it satisfies three requirements: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion?; finally, the statute must not foster "an excessive governmental entanglement with religion."

Despite persistent criticism, the Court continues to embrace the Everson interpretation and the Lemon test. The Court has reformulated the first two parts of Lemon, however, by emphasizing the "endorsement or disapproval" inquiry that Justice O'Connor initially proposed in her concurring opinion in LYNCH V. DONNELLY (1984). In WALLACE V. JAFFREE (1985) and Edwards v. Aguillard (1987), the Court adopted O'Connor's formulation of the "purpose" inquiry: "The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion." In COUNTY OF ALLEGHENY V. ACLU (1989) the Justices likewise relied on O'Connor's formulation to modify Lemon 's "primary effect" requirement. Thus, the Court held that regardless of purpose, governmental action has a constitutionally impermissible effect if it appears to endorse or disapprove religion. "The Establishment Clause, at the very least," wrote the Court, "prohibits government from appearing to take a position on questions of religious belief."

Justice O'Connor's approach does not eliminate difficult...

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