In LEMON V. KURTZMAN (1971), the Supreme Court announced a three-part ESTABLISHMENT CLAUSE test, under which a challenged government action, to be valid, must satisfy each of the following criteria: (1) it must have a secular purpose, (2) its "primary effect" must neither advance nor inhibit religion, and (3) it must not create an "excessive government entanglement with religion." The Court applied this test regularly for about fifteen years. Since the mid-1980s, however, the test increasingly has been criticized as excessively hostile to religion, historically misguided, and incoherent. Although the three Lemon factors remain relevant to judicial decisions, their strength has been modified substantially, and the future of even this modified Lemon test remains uncertain.
Only rarely has the Court invalidated a statute under the first part of the Lemon test. In Stone v. Graham (1979), the Court held that a statute requiring posting of the Ten Commandments in public classrooms was unconstitutional for want of a secular purpose. Similarly, in WALLACE V. JAFFREE (1984) and Edwards v. Aguillard (1987), the Court invalidated statutes that required, respectively, a moment of silence in public classrooms and the teaching of creationism in public schools. In other cases, the Court readily has found a secular purpose and proceeded to Lemon 's effects and entanglement inquiries.
The Court has developed and modified its criteria for unconstitutional effects and entanglement primarily in cases reviewing GOVERNMENT AID TO RELIGIOUS INSTITUTIONS. Through the 1970s and 1980s, the premise of the Court's effects analysis was that religious schools are "pervasively sectarian" institutions in which religious and secular education are inextricably intertwined; accordingly, any "direct and substantial aid" to religious schools' "educational function" unconstitutionally advances religion. On this approach, modified substantially in recent years, the Court was most concerned that government-paid teachers or guidance counselors, sent into religious schools to perform even secular tasks, might conform to the sectarian environment and engage in religious indoctrination. The Court invariably invalidated such programs. Government must be certain that its employees do not engage in religious indoctrination, the Court said, and the sectarian environment made such certainty unattainable. Furthermore, even when government tried to avoid these unconstitutional effects?by monitoring its aid programs to ensure that they neither provided nor subsidized religious indoctrination?the Court held that these monitoring efforts unconstitutionally entangled government and religion.
The high-water mark...