The Rise of Public School Prayer With the Demise of Lemon v. Kurtzman

• Publication year: 2023

The Rise of Public School Prayer with the Demise of Lemon v. Kurtzman

Samantha Thompson Lipp

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The Rise of Public School Prayer with the Demise of Lemon v. Kurtzman

Samantha Thompson Lipp^*

I. INTRODUCTION

The Supreme Court of the United States has officially overturned Lemon v. Kurtzman.¹ The controversial and heavily criticized Lemon opinion sets forth the primary test courts used for over fifty years in analyzing claims under the Establishment Clause. The official overruling of Lemon signals the Supreme Courts embrace of a more accommodating approach toward religion in the public sphere. This Comment predicts how, in Lemon's absence, the Supreme Court will likely reassess precedent in the context of public school prayer and become more accommodating of religion.

In Part II, this Comment addresses the three approaches to interpreting the Establishment Clause: the strict separation, neutrality, and accommodation approaches. This Comment describes how these three approaches often dictate the result in Establishment Clause disputes, as caselaw has made apparent over time. Next, Part III explains the Lemon test and how the Supreme Court intended Lemon to provide consistency in its Establishment Clause jurisprudence. But the effort ultimately failed, and Part IV of this Comment expands on how the test soured over time, examining how the Supreme Court shifted away from Lemon and toward the history and tradition test. Then, Part V of this Comment discusses how the Court will apply the history and

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tradition test, as evinced by cases leading up to the demise of Lemon. Specifically, Part V will focus on how cases before, during, and after Lemon's reign signal that the Supreme Court will become more accommodating of religion in the context of public school prayer. Finally, Part V concludes by examining how a claim may arise to provide the Supreme Court an opportunity to reexamine Establishment Clause precedent in the public school context.

II. Background: Three Approaches to the Establishment Clause

"Congress shall make no law respecting an establishment of religion."² This instruction from the Founders has sparked much debate, from the time of its initial drafting to present, about the scope of the Establishment Clause. "While the concept of a formally established church is straightforward, pinning down the meaning of a 'law respecting an establishment of religion' has proved to be a vexing problem."³

The Establishment Clause is consistently interpreted to prohibit four government actions. The government cannot (1) establish a state religion; (2) pass laws that aid or favor one religion over another; (3) coerce participation in or abstention from participating in religious exercises; or (4) become involved in religious affairs or permit religion to become involved in government affairs.⁴ But the scope of these prohibited governmental actions is heavily disputed, creating endless questions about the boundaries of the Establishment Clause. What constitutes "establishing" a religion? How can a law favor or disfavor religion? What constitutes coercion? Can religion and government ever interact under the Establishment Clause? If yes, when does interaction between religion and government violate the Establishment Clause?

Many responses are possible, but the Supreme Court of the united States's answer to these questions turns on which approach each Justice utilizes in determining whether a government action violates the Establishment Clause.⁵ Three approaches exist: the strict separation approach, the neutrality approach, and the accommodation approach.⁶ Each approach is rooted in a different belief about the permissible relationship between religion and government in the public sphere.⁷

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First, the strict separation approach calls for complete separation between church and state.⁸ Adherents of this approach believe the purpose of the Establishment Clause is fulfilled when religious activity and civil authority exist in permanently separated spheres.⁹ Thomas Jefferson illustrated this approach with his metaphor of a wall separating church and state.¹⁰ Strict separationists strive to keep this wall of separation "high and impregnable" because they believe government involvement in religion ultimately corrupts both religion and government.¹¹ But, strict separationists acknowledge that "total separation is not possible in the absolute sense" because there must be room for necessary contacts between religion and government.¹² For example, church properties are still subject to fire inspections and zoning regulations, and fire departments still respond to calls related to church property.¹³ Ultimately, though, the strict separation approach hinges on the belief that building a wall of separation benefits both religion and government.¹⁴

Second, the neutrality approach requires the government to maintain a stance of neutrality toward both religious and secular beliefs.¹⁵ Thus, under this approach, the government violates the Establishment Clause by endorsing one religious belief or secular belief over another.¹⁶ Adherents of the neutrality approach utilize the "reasonable observer test," which evaluates whether a reasonable observer would interpret the government's action as endorsing a particular belief.¹⁷ But adherents

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split in how they classify the hypothetical reasonable observer.¹⁸ Some adherents apply a tort definition, assessing how a hypothetical reasonable observer—an ordinary person—would interpret the government action.¹⁹ Others apply a higher standard, requiring more of the hypothetical reasonable observer: they consider whether an observer who is knowledgeable of the underlying history of the community would perceive the government's action as endorsing a particular belief.²⁰ Ultimately, both classifications are concerned with the appearance of government neutrality.²¹

Third, the accommodationist approach advocates that the government should recognize the importance of religion in society and accommodate religion.²² Adherents of this approach believe that religion should be accommodated in public life as part of a pluralistic society.²³ Under the accommodation approach, the government only violates the Establishment Clause if it coerces the support of, participation in, or abstention from religion. Accommodationists split in how they define what constitutes "coercion."²⁴ Some define coercion broadly, finding that the government violates the Establishment Clause when a government action creates social pressure to conform to a particular religious practice.²⁵ In comparison, other accommodationists narrowly define coercion, finding coercion exists when there is a "coercion of religious orthodoxy and of financial support by force of law or threat of monetary

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penalty."²⁶ Under this view, social pressure alone does not constitute "coercion."²⁷ Despite this distinction, accommodationists are united in the belief that the government should recognize the significant role of religion in society by accommodating its presence in the public sphere.²⁸

The utilized approach impacts the outcome of a dispute. Consider the Supreme Court's analysis in County of Allegheny v. American Civil Liberties Union.²⁹ There, the Supreme Court evaluated the constitutionality of two holiday displays on public property: a creche display located in the city-county courthouse, and a Chanukah menorah, Christmas tree, and sign saluting liberty located outside the city-county building.³⁰ Strict separationists expressed the Establishment Clause created the presumption against displaying religious symbols on public property and, thus, found both displays unconstitutional.³¹ In comparison, accommodationists found the displays acknowledged both the religious and secular nature of holidays and would have permitted both displays.³² But both camps were outnumbered by the majority, which embraced the neutrality approach and evaluated whether a reasonable observer would perceive the displays as the government endorsing religion.³³ Two factors determined the display's effect on a reasonable observer: the display's setting and whether the setting included other symbols that detracted from the display's religious message.³⁴ Ultimately, the majority held the creche, standing alone, was unconstitutional while the other display—the Chanukah menorah, Christmas tree, and sign saluting liberty—was constitutional because it would be perceived as celebrating the winter holiday season.³⁵ The three approaches are a consistent theme in the Supreme Court's analysis of the

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Establishment Clause and will continue to govern how the Court reassesses religion in the context of public school prayer in the future.

III. The Test: Lemon v. Kurtzman

The Supreme Court of the United States embraced the Lemon test to create a more uniform approach to questions about the scope of permissible government action under the Establishment Clause.³⁶ Before understanding the significance of its demise, it is essential to peel back the layers of the Lemon test and understand how it governed interactions between government and religion. The Lemon test consisted of three prongs that, taken together, determined whether a government action violated the Establishment Clause.

First, the Lemon test evaluated whether a government action was rooted in a religious or secular purpose.³⁷ For a government action to be constitutional, the Lemon test required the government action to be motivated by a secular purpose.³⁸ A government action could be motivated in part by a religious purpose and satisfy the Lemon test, but Lemon required the Court to invalidate the government action if it was entirely motivated by the religious purpose.³⁹ If the government acted without a secular purpose,⁴⁰ or the Court did not believe the government's stated secular purpose,⁴¹ the government action failed the Lemon test and violated the Establishment Clause.⁴²

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