Professor Harpaz
Summer 2013

Religion and the Constitution Review Summer 2013

I.  Standing Under the Religion Clauses

A.  Establishment Clause Standing. To establish standing under Article III, a plaintiff must establish (1) that he has personally suffered some actual or threatened injury as the result of the challenged conduct, (2) that the injury to the plaintiff can be traced to the challenged conduct, and (3) that the injury is likely to be redressed by a decision in the plaintiff's favor. This requirement is part of the case or controversy requirement of  Article III of the Constitution. In addition to the Article III constitutional requirements for standing, the Supreme Court has also developed prudential limits on who may have federal court standing. If a case is brought in state court, the Article III standing doctrine does not apply and each state can design its own rules for state court standing. However, the situation changes if a case that is orignally brought in a state court is reviewed by the United States Supreme Court. For the Supreme Court to review a case on the merits, the case must satisfy the Article III justiciability requirements including standing.

1.  Economic Injury

(a)  Taxpayer standing

(1) In Flast v. Cohen, the Supreme Court held that federal taxpayer status is a sufficient basis for standing to sue in federal court to challenge taxing and spending programs enacted by Congress as violative of the Establishment Clause. In this respect the Establishment Clause is unique because ordinarily taxpayer status, under the decision in Frothingham v. Mellon, is an insufficient basis to challenge Congressional actions as violative of provisions in the Constitution. This different treatment of Establishment Clause challenges is because the Establishment Clause is viewed as a specific limitation on the federal power to tax and spend thereby satisfying the 2 part test of Flast v. Cohen. Under that test: (1) the taxpayer must establish a logical link between that status and the type of Congressional enactment attacked; and (2) the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Applying that test, the Court determined that spending programs enacted under Congress's Article I, Section 8 power to spend for the general welfare satisfy the requirement of a logical link between taxpayer status and the type of Congressional enactment attacked. It also found that there is a nexus between taxpayer status and a constitutional challenge based on the Establishment Clause. By contrast to Flast, the Flast test was not satisfied in the Valley Forge Christian College case because (1) the case did not involve a challenge to a Congressional exercise of the taxing and spending power under Article I, Section 8, but was instead a challenge to executive branch action; and (2) the Congressional enactment that authorized the property donation was an exercise of power under the Property Clause of Article IV, Section 3 rather than an exercise of the taxing and spending power under Article I, Section 8.  In addition, the Flast test was not satisfied in Hein v. Freedom From Religion Foundation, Inc. because Congress did not authorize the expenditure of funds specifically for the challenged activity. Instead the challenged activity was by the executive branch using general executive branch appropriations. Moreover, the Court refused to find the Flast exception applicable to Arizona's tax credit for taxpayer contributions to organizations that provided financial support to religious schools. The Court held in Arizona Christian School Tuition Organization v. Winn that taxpayer standing under Flast was only applicable to  challenging governmental expenditures. Tax credits did not fall into this category because the taxpayer rather than the government was contributing the money even though the government was indirectly funding the contribution by providing a tax credit. These narrow interpretations of Flast indictate that the Court is unwilling to expand Flast beyond situations that are exactly parallel to the facts in that case.

(2) Despite the decision in Arizona Christian School Tuition Organization v. Winn, state taxpayer status serves as a basis for standing for a federal court challenge to state expenditures of funds as violative of the Establishment Clause as long as the program being challenged is a bona fide spending program (and not a tax credit). While the general principles announced in Flast apply in this situation, the specifics of the Flast test do not. The focus in prong one of the test on the type of Congressional enactment attacked is relevant to the various sources of Congressional power granted in the U.S. Constitution (and not to the sources of state power derived from the state constitution and state law). Distinguishing between Congressional action and executive branch action (as in Valley Forge and Hein) is related to a concern over separation of power principles that apply to the federal constitutional division of federal power among the legislative, executive, and judicial branches of the federal government (and not to the division of power reflected in state constitutions and state law). Therefore, the only aspects of the test that are relevant is that a state taxpayer challenges a genuine state spending program and that the state taxpayer asserts that state funds are spent in violation of the Establishment Clause (since there is a link between taxpayer status and state spending and the Establishment Clause).

(3) Municipal taxpayer status serves as a basis for standing for a federal court challenge to a municipal expenditure on Establishment Clause grounds because of the direct relationship that exists between the city and its taxpayers. The only requirements are that money must have been spent by the municipality to fund the asserted unconstitutional activity and the individual who sues must be a taxpayer of the municipality whose actions are being challenged. Disputes over whether municipal taxpaper status is sufficient for standing can arise in situations where the amount of money spent is only a de minimus amount.

(b) Other economic injuries as a basis for standing

Other economic injuries such as to competitors or others who suffer economic losses as the result of government conduct that grants economic benefits in violation of the Establishment Clause will also serve as a basis for standing.   

2.  Noneconomic injury

In addition to economic injuries, standing in Establishment Clause cases can be based on a noneconomic injury, but not on a solely psychological injury (like being offended) such as the kind of injury the Court found inadequate in Valley Forge. To serve as the basis for standing, the noneconomic injury can be:

(a)  A change in behavior as a result of the asserted Establishment Clause violation such as a decision to refrain from an activity that the plaintiff has previously engaged in, or some other alteration in the challenger’s lifestyle or activities. An example of a change in behavior could be a change in the route traveled in order to avoid a religious symbol on public property.

(b)  A decision to give up the use and enjoyment of government property such as a state park.  This was the basis for standing in ACLU v. Raban County Chamber of Commerce where the presence of the cross interfered with the plaintiff’s willingness to camp on state property. This form of standing may also satisfy the requirement of a change in behavior. However, since the plaintiffs in Raban County had never camped in the particular state park at issue prior to the installation of the cross, it is more easily classified as a decision to forego use of the park rather than a change from prior behavior.  

(c)  Significant exposure or direct contact with offensive conduct can be the basis of standing. A change in behavior is not viewed as necessary to establish a noneconomic injury.  For example, in Van Orden v. Perry, the Texas Ten Commandments case, Van Orden walked by the Ten Commandments monument when he used the law library in the Supreme Court Building. Even though he continued to use the library on a frequent basis, despite his objections to the monument, he satisfied the standing requirement. In this circumstance, standing is created because the government has placed the challenger in the position where the challenger either has to refrain from an activity the challenger would otherwise engage in (camping in a state park or walking down a pathway to enter a government building) to avoid an objectionable religious symbol or activity or engage in the activity and be forced to be exposed to a religious symbol or activity that the challenger finds objectionable.Noneconomic injury is often the basis for standing in cases where public school pupils are challenging a religious practice sponsored by the school they attend such as Bible reading in Schempp or graduation prayer and the students endure the discomfort of being present for unwelcome religious activity.      

B.  Free Exercise Standing - In Free Exercise challenges, standing is based on the fact that the challenger has had a substantial burden (either direct or indirect) placed on his or her ability to engage in a religious practice by the government. The burden could be that continuing to engage in the religious practice could result in the loss of government benefits, the risk of criminal or civil penalties, or some other substantial burden. Free Exercise standing cannot be based on a general status such as taxpayer status. Instead, challengers must show their personal rights have been interfered with because their religious freedom has been substantially burdened by the government's conduct.

II.  Establishment Clause - Standards

A.  Lemon test

For many years, the Court exclusively used the Lemon test to analyze Establishment Clause issues - under Lemon, a challenged government program is constitutional if it satisfies a 3-prong test - (1) if it has a secular legislative purpose (that is not a sham), (2) a principal or primary effect that neither advances nor inhibits religion and (3) does not create an excessive government entanglement with religion (page 119). The first two prongs of the Lemon test were first announced in Schempp (page 38) and the final prong in Walz (page 61). While the test has now been substantially modified in the parochial school aid context in Agostini v. Felton (see C below) and often ignored in other contexts, its exact status outside the parochial school aid context is not clear. Lower courts still commonly apply the original 3-prong version of the Lemon test in other than parochial school aid cases as one of several alternative tests they apply to analyze the constitutionality of government action challenged under the Establishment Clause. Moreover, the Supreme Court has used the Lemon test as originally formulated in recent years in cases involving school-sponsored religious activity such as football prayer. In addition, the test has never been overturned by the Supreme Court despite much criticism of the test. Rather than rejecting the test, a number of members of the Court have now expressed the view that no one test is useful in all Establishment Clause cases. Therefore, different factual contexts require the use of different tests and even different versions of the same test, as is the case with the Lemon test (see Agostini test in Section C below).

B.  Endorsement Test

Justice O’Connor suggested a clarification (or gloss or enhancement) of the Lemon test in her concurring opinion in Lynch v. Donnelly (pages 443-45). Under her approach, both the purpose and effect prongs of Lemon are examined through the lens of endorsement. Under this clarification, the issue is whether the government has a purpose to endorse religion and whether the effect of the challenged practice is to endorse religion so as to “send a message to nonadherents that they are outsiders, not full members of the political community” and a “message to adherents that they are insiders, favored members of the political community.” Under Justice O’Connor’s version of the test, whether the effect is to endorse religion or not must be viewed from the vantage point of “a reasonable observer who evaluates whether a challenged governmental practice conveys a message of endorsement of religion.” In her view, “the reasonable observer is knowledgeable and aware of the history and context of the community and the situation in which the religious practice occurs.” Even though Justice O’Connor offered her endorsement test as a gloss on Lemon rather than as a separate test, the endorsement test is often used by lower courts as an alternative to the Lemon test. Typically such courts alternatively analyze the case under Lemon and the endorsement alternative. The endorsement test has been criticized, much as the Lemon test has, by some members of the Supreme Court including Justice Kennedy. However, it is sometimes used in opinions of the Court either as a gloss on Lemon or as alternative to Lemon. Although Justice O’Connor first crafted the test in a case involving a religious display on government property, its use has not been limited to display cases. It is also used to evaluate the constitutionality of public school practices such as school prayer.  

C.  Agostini Test 

The Lemon test was modified in Agostini v. Felton (page 244), a case involving aid to parochial schools. Under the Agostini modification, there are only two prongs - purpose and effect. The effect of advancing or inhibiting religion is now reviewed, at least as stated in Agostini, by a focus on three factors: (1) whether the program results in governmental indoctrination of religion; (2) whether it defines its participants by reference to religion; and (3) whether it creates an excessive entanglement between government and religion. Therefore, excessive entanglement, instead of being a factor unto itself has become just one facet of the effect inquiry. While the Agostini test has been used in cases that challenge both direct and indirect government funding of parochial school education (like Mitchell v. Helms (page 259) and Zelman v. Simmons-Harris (page 281)), it has not yet been applied to other Establishment Clause cases such as school prayer. In fact Lemon was applied in 2000 in Santa Fe Independent School District v. Doe (page 387), the football prayer case, even though it was decided 3 years after Agostini. Therefore, it is not clear that the Agostini test will be used outside of the parochial school aid context.

D.  Strict Scrutiny

Since neutrality among different religions is a central concern of the Establishment Clause, it is not surprising that the Court employs strict scrutiny (the government must demonstrate that it seeks to accomplish a compelling governmental objective and that it is employing means that are necessary means (the least restrictive alternative) to accomplish that objective) to analyze Establishment Clause cases where the statute on its face discriminates against a particular religion. However, the government rarely enacts a facially discriminatory measure. The Court has also employed strict scrutiny in cases that do not involve facial discrimination against a particular religion, but where the legislature intended to discriminate against a particular religious group and enacted a measure that is the functional equivalent of a facially discriminatory statute.  An example of such a statute is found in Larson v. Valente (page 526), the case in which the Minnesota legislature passed a law that was purposefully intended to subject “the Moonies,” otherwise known as the Unification Church, to worse treatment than mainstream religions. In that case, mainstream religions received an exemption from various regulations that applied to other charities, but the Unification Church did not. The Court interpreted the statute as being an example of facial discrimination against a particular religion even though the statute did not refer to “the Moonies” by name. However, the statute did differentiate between two types of religious organizations - those that got the majority of their contributions from members and those that didn’t. Since the statute on its face did distinguish between two types of religious organizations, the Court applied strict scrutiny and found the law to be unconstitutional. Because the statute did not discriminate on its face, however, the Court also considered whether the statute was constitutional under the Lemon test and found that it failed that test as well.

E.  Historical Exception

In rare cases, the Court will uphold a practice that could not withstand scrutiny under any of the traditional Establishment Clause tests because the challenged practice is a long-standing unbroken practice that dates back to the country’s earliest days such as the legislative chaplain and prayer in Marsh v. Chambers (page 431).  Another example occurred in Walz v. Tax Commissioner of City of New York (page 61) where at least part of the reason for upholding the property tax exemption was based on the fact that it was a long-standing practice. Since the widespread existence of public schools in this country only began in the middle of the 19th century, the Court does not use this exception to uphold practices in the public school context. This historical exception to the Establishment Clause has only been relied on in a few cases.

III.  Establishment Clause - Specific Contexts

Having looked at the various tests, I’m now going to review the various contexts in which Establishment Clause challenges occur.

A.  Government Funding of Parochial Education

Purpose - In cases involving government funding of parochial education the government is usually able to assert a credible, secular purpose such as furthering educational opportunities or improving the quality of education.

Effect Prong

1. programs which benefit a broad class of beneficiaries including religious and nonreligious beneficiaries such as the tax exemptions in Walz and tax deductions in Mueller v. Allen (page 176) or a program to benefit all schoolchildren like the bus transportation in Everson v. Board of Education (page 1) are more acceptable in their effects than programs that benefit a narrow class that includes parochial schools or religious institutions, but not all schools or schoolchildren. In recent cases, this concern with the breadth of the beneficiary class has been incorporated into a concern with neutrality or evenhandedness in the criteria employed to distribute the aid. In this inquiry, the Court seems more concerned with the scope of the eligible class than the composition of the group that actually is able to utilize the benefit, as it made clear in Mueller. A related question arose in Zelman v. Simmons-Harris (page 281), where the members of the Court debated the nature of the choices available to participating students with some members of the Court (the dissent) focusing only on the schools accepting vouchers and others (the majority) focusing on all educational choices including community and magnet schools.  

2. An impermissible effect is usually avoided if the program provides its benefits directly to parents and students and they are transferred to parochial schools only as the result of independent private choices by the direct beneficiaries and not by the government. These indirect aid cases include Mueller, Witters v. Washington Department of Services for the Blind (page 215), Zobrest v. Catalina Foothills School District (page 237) and Zelman and such an arrangement usually results in the program being upheld. This is even true in cases where the government money, once it passes through private hands, is used to pay all of the costs of education at a pervasively sectarian educational institution as in Witters.

3. Benefits that involve the use of public school employees providing varying services at the site of a parochial school are constitutional after Agostini - these include counseling, testing, psychological services, health services, speech and hearing therapy, diagnostic and therapeutic services, remedial education, special education, and programs for gifted children. Thus far all of the programs upheld by the Court have fallen into two categories: they have supplemented and not supplanted the education provided by the parochial school or they provide auxiliary services rather than direct provision of education. The constitutional status of a program that supplanted the education the parochial school would otherwise be required to provide has not yet come before the Supreme Court.

4. After Agostini, it is acceptable to directly aid the educational function of religious schools so long as the government does not aid the religious aspects of that education. The earlier notion that it was impossible to separate the secular and sectarian aspects of the education provided by a pervasively sectarian elementary or secondary school has been abandoned. In addition, Agostini abandoned the concern that government employees would be influenced by working in the environment of a parochial school and, therefore, needed to be monitored. The Court has not revisited the issue of whether parochial school teachers need to be monitored if the state is paying part of their salary, the precise issue raised in Lemon. It did, however, conclude in Mitchell v. Helms (page 259) that parochial school teachers can be presumed to correctly use equipment provided by the state and only use such equipment for secular teaching (plurality opinion by Justice Thomas) or, at least presumed to correctly use such equipment if there are safeguards in place (concurring opinion by Justice O’Connor) to monitor use (see section (5) below).

5. indirect economic benefits or the loan or provision of equipment that is nonreligious in character (Mitchell v. Helms) are more acceptable than direct money payments to parochial schools, particularly where those payments can be used to fund the religious aspects of parochial education. The Supreme Court’s fear that the government will be directly funding the religious indoctrination that is part of parochial school education surfaces in cases in which state money is given to a parochial school to pay for work done by parochial school teachers that lends itself to inculcation of religion - composing tests in Levitt (page 143) or teaching after school classes in Grand Rapids School District v. Ball (page 185). This concern has not been repudiated in the more recent cases. The Court does not have this same concern where the services provided do not lend themselves to indoctrination such as grading state-prepared tests. In cases where the aid could be diverted for religious use, like the computers in Mitchell v. Helms, a bare majority of the Court, including Justice O’Connor, rejecting the view of the plurality opinion, wants to assure itself that there is sufficient monitoring of use so that diversion is unlikely. Such monitoring does not create excessive entanglement.

6. While the Court has not abandoned completely its concern with the creation of a symbolic union of church and state as seen through the eyes of impressionable children or the appearance of government endorsement of parochial education, it no longer is as likely to find the existence of such an impermissible union. For example, the Court does not assume that such an impermissible appearance is created by the presence of government employees or equipment purchased by the government in a parochial school. In addition, while the Court is still concerned with the appearance of endorsement in the public school setting, as can be seen in the recent school prayer cases where this factor played a role in invalidating the challenged practices, this impermissible effect is downplayed in the public forum cases including Mergens (page 319) and Good News Club (page 397). In Mergens, the Court was not concerned that meetings of a student Bible club would give the appearance that the school endorsed the club’s activities. In Good News Club, the Court rejected arguments that elementary school children would conclude that the government endorsed the activities of the Good News Club by allowing it to use school facilities immediately after the end of the school day. The Court rejected this view in part because parents would need to give permission for their children to participate in the club and thus the impressionability of the children was not at issue since they were not the relevant audience. In the public forum cases, rather than prevent religious speech, the Court suggests that the schools use devices such as disclaimers to make clear it is not endorsing the private speech at issue.

7. Grants of benefits to institutions of higher education have always been treated as less susceptible to Establishment Clause invalidation under the effects prong for a number of reasons: college students are less impressionable, many religiously affiliated colleges and universities are not pervasively sectarian, and private colleges and universities are dominated by secular institutions and are not overwhelmingly religiously affiliated unlike their elementary and secondary school counterparts.

8. Impermissible effects are sometimes not found by the Court because of the separation of a facial challenge to a program and an as applied challenge. In a facial challenge, a court will not examine facts that relate to particular applications of the law. In its earlier cases, the Court was willing to examine facts related to the general operation of the challenged law as part of a facial challenge to the law. More recently, the Court has shown a tendency to deem such operational or application facts as only relevant to an as-applied challenge. This "divide and conquer" strategy explains the Court’s unwillingness, for example, to look at the behavior of religious grant recipients in Bowen v. Kendrick (page 221) when the statute on its face provided for the delivery of secular services. This recent trend is seen in parochial school funding cases, but has not been consistently applied in Establishment Clause cases outside the funding context.

Excessive Entanglement

Prior to Agostini, entanglement often created a Catch-22 paradox for the government. If the government failed to supervise government employees who provided services at parochial schools, it risked an impermissible effect; if it constantly supervised those employees, it created excessive entanglement. With the elimination in Agostini of the presumption that public school employees would act impermissibly when teaching in a parochial school, the need for constant supervision was eliminated.

The Court has recognized a number of different forms of entanglement over the years. These include administrative cooperation, political divisiveness and pervasive monitoring. Only the third of these, pervasive monitoring, can, standing alone, create excessive entanglement after Agostini. Excessive entanglement does not exist where there is only administrative cooperation such as filling out forms, providing financial information, occasional inspections, etc. Additionally, the Court has abandoned, or at least downplayed, the importance of political divisiveness which occurs when a law has the potential to produce political debate and division along religious lines. This may occur where the law requires continuing annual appropriations from the legislature and where the appropriated money is directly provided to eligible schools. Such a concern, even if it exists, is limited to elementary and secondary schools and not colleges and universities since colleges and universities generally do not have a local constituency since their student bodies often come from a widely dispersed geographic area. While the concern over a need for pervasive monitoring is still valid post-Agostini, such monitoring is no longer required in numbers of situations, particularly where public school teachers teach in parochial schools. The one recent case where the Court talked about political divisiveness and identified it as a problem was in Doe, the football prayer case, where the school was to oversee an election to determine if there would be an invocation prior to football games (see section B. below).

Another form of unconstitutional entanglement occurs where government lends its authority to a religious organization as in the Larkin v. Grendel’s Den (page 426) case or where it draws governmental boundaries along religious lines as in Kiryas Joel (page 558). This form of entanglement is still a concern to the Court and has been recognized by Justice Thomas as a form of religious establishment.

Entanglement arguments sometimes have a comparative dimension whereby the argument is presented that the entanglement created by the challenged statute is less than the entanglement that would exist in its absence - as in the case of tax exemptions for buildings used as a place of worship.

B.  Intrusion of Religion into the Public Schools

1.  Application of the Lemon and Endorsement tests

Purpose Prong

The purpose prong is particularly important in cases in which religion is introduced into the public schools, as in the school prayer cases, and often is the basis for the Court’s invalidation of the challenged practice (Stone v. Graham (Ten commandments - page 310), Wallace v. Jaffree (moment of science - page 326)). In these cases, the Court looks to evidence of purpose found, for example, in statements of the law’s sponsors and the history of the enactment of the law. Even if the government asserts a secular purpose, the Court may be willing to find that the asserted purpose is a sham as in Edwards v. Aguillard, the creation science case (page 343), and Sante Fe Independent School District v. Doe, the football prayer case (page 387). The Court states that it will defer to a plausible secular purpose, but not if the secular purpose is a sham. In addition, if the law is justified by more than one purpose, the purpose prong only requires that one plausible purpose for the law must be secular. For example, the daily recitation of the Pledge of Allegiance in a public school classroom can satisfy the purpose prong because the school district’s purpose in reciting the Pledge may be to encourage patriotism rather than religion, despite the inclusion of the “under God” language.


The effect prong may be violated as well when religious practices such as prayer are introduced into the public schools. In such cases, the Court also may rely on Justice O’Connor’s endorsement test and find that the government intends to convey a message of endorsement of religion and that the objective, knowledgeable observer will perceive such a message. In the prayer cases, when relying on whether the government will be perceived to endorse a religious message, a key distinction is between government-sponsored prayer and private prayer. Government sponsorship will be found when there are indicia of state involvement as in the football prayer case even if the prayer is recited by a student speaker. In addition to an impermissible effect of endorsement of religion, an additional aspect of effect in the school prayer cases is focused on by Justice Kennedy in Lee v. Weissman (page 356). In that case, he focuses on the psychological coercion experienced by those that attend the graduation ceremony to participate in the prayer or at least to stand in respectful silence. Some members of the current Court, particularly Justices Scalia and Thomas, but not yet a majority, view coercion more narrowly to only exist when there is legal compulsion to attend or specific penalties attached to non-attendance. Moreover, for those members of the Court coercion is not just an aspect of the effect prong, but is instead a required element of an Establishment Clause challenge. In their view, government religious exercises do not violate the Establishment Clause in the absence of coercion. However, Justice Scalia would require such noncoercive religious exercises, such as graduation prayer, to be nondenominational.

In Newdow (page 408), some members of the Court who reached the merits of the case distinguished the effect of the recitation of the Pledge of Allegiance from the recitation of a prayer. For Chief Justice Rehnquist, the Pledge was a patriotic exercise rather than a religious one and therefore the Establishment Clause was not implicated at all. For Justice O’Connor, the Pledge was acceptable as ceremonial deism that had a secular purpose (either to reflect the country’s history or to solemnize an occasion) and did not create the appearance of endorsement of a particular religion or even religion in general. See Section (4) below for a further discussion of ceremonial deism.


Entanglement issues surface on occasion in the cases in which a religious practice occurs in a public school setting. One example of this is in Lee v. Weissman where the school administration gave guidelines to the clergy member invited to recite a prayer which guidelines were designed to spell out the characteristics of a suitable ceremonial prayer to mark the occasion. Doe, the football prayer case, was also notable because it was one of the rare recent cases where the Court was concerned with the political divisiveness aspect of excessive entanglement. The Court feared that such divisiveness would result from subjecting the prayer decision to a vote of the student body.

2.  Intersection of the Free Speech and Establishment Clauses

In a group of cases, we saw the intersection of the Free Speech and Establishment Clauses. In these cases, the government has created a public forum (a place designated for expression by private speakers such as the school facilities in Widmar, Mergens, and Lamb's Chapel) and excluded religious speakers from that forum. The religious speaker, such as the student who is a member of a campus religious group, sues the government under the First Amendment’s free speech guarantee. Since these cases involve content-based (and usually viewpoint-based) exclusions from a public forum, the standard of review the Court uses to examine the challenger’s free speech claim is strict scrutiny. Under this test, the burden is on the government to show that it has a compelling government interest to justify the exclusion of religious speech and that the means it employs is narrowly tailored/necessary/essential (any of these terms may be used) to the accomplishment of that compelling interest. This means that the government must show there is no less restrictive alternative means (a means that is less restrictive of the speaker's free speech rights) to accomplish its compelling objective. The government then raises the need to comply with the Establishment Clause as its compelling government interest. In each case falling within this category, the government lost because the Court concluded that the Establishment Clause did not provide a compelling reason for the government’s action. This was because the Establishment Clause would not have been violated if the government included private religious speakers in the forum and, therefore, it lacked a compelling government interest. The Court’s view was that the government would not be perceived as endorsing the private religious message when it merely included religious speakers in a forum available to a wide diversity of speakers (Widmar, Mergens, Lamb’s Chapel, Rosenberger, Good News Club). It is possible in some circumstances that a disclaimer may be necessary to avoid the appearance of endorsement (Rosenberger). If it is, the government must use that method (a less restrictive alternative) and others available to it to disassociate itself from the religious speech rather than prohibit the speech entirely. While some members of the Court have suggested that the First Amendment free speech clause always protects private religious speech in a public forum, others have suggested that there may be limited situations where the inclusion of the religious speech creates an unavoidable appearance of endorsement or coercion to participate so that an Establishment Clause violation can be made out.

C.  Intrusion of Religion into Civic Life

The Court has only occasionally invalidated government action falling into this category. It struck down the zoning regulation in Larkin v. Grendel’s Den (page 426) because the city had delegated government authority to local churches. On the other hand, it upheld the Sunday closing law in McGowan v. Maryland (page page 421) on the ground that it had acquired a secular purpose even though the law had a religious origin. It upheld legislative chaplains in Marsh v. Chambers (page 431) on the ground that they were consistent with the original intent of the framers as evidenced by the fact that there was a long-standing unbroken practice of the hiring of such chaplains dating back to the Continental Congress and the First Congress after the creation of the United States. It upheld the display of a creche to celebrate the public aspects of the Christmas holiday in Lynch v. Donnelly (page 438) in a case where the creche was displayed along with secular symbols of the holiday. In a similar vein, in County of Allegheny v. ACLU (page 452) it upheld a menorah (a religious symbol of Chanukah) along with a Christmas tree (a secular symbol of Christmas) and a sign saluting liberty because the display in its entirety did not have the effect of endorsing religion. It only struck down a government display of a creche alone in a Pittsburgh courthouse in County of Allegheny since that religious symbol standing alone conveyed a message of endorsement of religion. Similarly, in the two recent cases involving displays of the Ten Commandments, the Court upheld a display on the grounds of the Texas Statehouse in Van Orden v. Perry (page 478) because the monument was erected to acknowledge the state’s political and legal history rather than to endorse religion. By contrast, the Court struck down courthouse displays of the Ten Commandments in McCreary County v. ACLU of Kentucky (page 494) because the history of the displays indicated they had the impermissible purpose of endorsing religion. The two recent Ten Commandments cases are another in a long series of cases in which the members of the Court divided over the issue of whether the government can prefer religion generally, in a nondenominational manner, over irreligion or whether it must remain neutral as between religion and irreligion. In its recent encounter with a display of a cross on government property in Salazar v. Buono, the Justices began a conversation about whether a cross can be a universal symbol to show honor and respect (e.g., for soldiers who died in the service of their country) or whether it is only a symbol of Christian beliefs. The majority concluded that a cross is capable of a universal message while the dissent concluded that a cross "conveys an inescapably sectarian message." In addition to addressing the issue of whether there is a secular purpose for the display of a cross in the context of a specific challenged cross memorial, the application of the endorsement test in the context of a memorial that displays a cross will need to address the issue of how the reasonable observer will perceive the cross.

Another potential justification for upholding some inclusion of religion in our civic life is based on the ceremonial deism justification offered by Justice O’Connor in her opinion in Elk Grove Unified School District v. Newdow. Under her concept of ceremonial deism, longstanding practices that are ubiquitous and observed by many persons without significant controversy and involve brief, nondenominational references to God, such as the Pledge of Allegiance, are constitutional under the Establishment Clause (pages 414-18).

In another case involving the display of a religious symbol on government property, Capital Square Review Board v. Pinette (page 468), the KKK erected a cross in front of the Ohio statehouse. The critical factor in Pinnete was that the government did not erect the cross. Instead it was a private organization that placed the cross in a public forum that was available for unattended displays. In this circumstance, the free speech clause protects the private speaker and at most may require the placement of a disclaimer to avoid the appearance of government endorsement of the religious message. Pinette, like the cases of Widmar, Mergens, Lamb’s Chapel, Rosenberger and Good News Club, involves the distinction between private religious speech which is protected by the free speech guarantee and government religious speech which is prohibited by the Establishment Clause. In cases of private religious speech seeking access to a public forum, the government must satisfy the strict scrutiny test. The government has not succeeding in satisfying this test in any of the cases in which the government has argued that its need to obey the Establishment Clause justifies discrimination against religious speech. One of the Court's most recent cases involving a religious display on government property, Pleasant Grove City, Utah v. Summum (page 511), also involves the public speech/private speech distinction. In Summum, however, a Ten Commandments monument was donated to the city and the city successfully argued that the park where it was displayed was not a public forum because it only displayed the government's own speech. The characterization of the monument as government speech allowed the city to refuse to display other religious monuments in the park without violating the free speech clause. However, it opened up the possibility of a challenge to the display of the monument under the Establishment Clause. While this issue was not before the Court in Summum, two members of the Court argued that the display would be constitutional relying on the reasoning in Van Orden v. Perry (page 478).

In a number of the display cases, there was some combination of government and private activity (the display was owned by a private entity, but was placed on government property or the display was owned by the government, but was displayed on private property). In such cases, it will be necessary to wrestle with the public/private issue addressed in Summum. A challenger who is arguing that the display violates the Establishment Clause wants the display to be considered government speech. Challengers who wants to add their own speech to the display want the speech to be considered private speech displayed in a public forum. The government could want to make either argument, depending on the context. In Summum, the government wanted the monument to be considered government speech because it didn't want to accept Summum's monument and it thought it could withstand an Establishment Clause challenge. In County of Allegheny, by contrast, the government wanted the courthouse creche to be considered private speech to avoid it being struck down under the Establishment Clause.

D.  Discrimination Against Particular Religions

Discrimination against particular religions is a central concern of both the Establishment and Free Exercise Clauses. Courts use a strict scrutiny test (see B. 2. above for a description of the test) in cases of facial discrimination against particular religions. Such facial discrimination exists when a law singles out a particular religion by name and subjects it to unfavorable treatment or when it makes explicit and deliberate distinctions between religious organizations as the Court found to be the case in Larson v. Valente (page 526). If the Court finds that the law “inhibits religion,” but does not contain facial discrimination or its equivalent, the Court will subject the law to review under the Lemon test, as it did as an alternative analysis in Larson.

E.  Denominational Preferences

A denominational preference gives one sect an unjustifiable benefit not available to other religious denominations. The strict scrutiny test is also used by some members of the Supreme Court to analyze denominational preferences, favoritism of a particular religion. An example of the use of this standard arguably is found in Parts II-B and II-C of Justice Souter's opinion in Kiryas Joel (pages 561-62) where he characterizes the act of creating a special school district as not neutral among religions and concludes that the legislature had alternative methods of providing special education services available to it. Under strict scrutiny, the government must have a compelling government interest and must have chosen means that are necessary to the achievement of that interest. Under the test, in order to use discriminatory means, the government must not have available alternative nondiscriminatory means to achieve its compelling objective. In Kiryas Joel, the Court found that there were alternatives available, including using mobile vans or allowing a variety of small villages to form their own school districts based on religiously neutral criteria, and thus struck down the creation of a special school district drawn along religious lines.

F.  The problem of neutrality

While a large majority of the Court has always identified the constitutionally required relationship between the government and religion as one of neutrality, the meaning of neutrality has shifted over time. Moreover, there remains a deep divide on the Court over what variety of neutrality is required. Justices like Scalia and Rehnquist believe that the government must be neutral among different religions, but may prefer religion in general over nonreligion. Justices like Stevens, Souter and O’Connor believe that the government must be neutral among religions as well as between religion and nonreligion. Thus, in their view, the government may not, in its actions, endorse all religions and express a preference for religion over nonreligion. On the other hand, it is not impermissible for the government to promote a belief that coincides with the views of some or all religions. Thus, government preference for childbirth over abortion is not unconstitutional simply because that view is consistent with the views of the Catholic Church. Of the members of the current Court who have expressed views on this issue, only Justice Thomas has completely rejected the view that neutrality is constitutionally significant. In Justice Thomas’ view, the Establishment Clause was not intended to bar the states from establishing a state religion. It was intended to restrain the federal government and prevent it from interfering with state establishments of religion. In Thomas’ view, the state is allowed to create an established church, but, because of the protections of the Free Exercise Clause, the state may not legally compel its citizens to belong to that church or to participate in particular religious exercises.

The various members of the Court also disagree on the meaning of neutrality. In the aid to parochial school cases, the conservative Justices argue that neutrality means only evenhandedness of distribution and that such evenhandedness alone may insulate the government from any Establishment Clause difficulty. Other members of the Court reject the idea that neutrality alone, in the limited sense of evenhandedness, is of such singular importance. A recent debate over neutrality is found in Mitchell v. Helms (page 259) where 5 members of the Court, including the dissenting Justices and Justice O’Connor in her separate concurring opinion, argue that the plurality has elevated neutrality to a singular importance that it does not deserve. Justice Souter’s dissent in that case reviews the ways in which the Court has redefined neutrality moving from interpreting it to mean that the government neither benefits nor disadvantages religion to describing the fact that the government may only provide nonreligous benefits to religion and not ones that benefit its sectarian activities to its current meaning of evenhanded allocation to religion and nonreligion. Souter sharply criticizes this evolution in the meaning of the term neutrality and finds, therefore, that neutrality alone is far from adequate to satisfy the requirements of the Establishment Clause.

G.  Coercion

Another controversial concept is coercion. Some members of the Court (Justices Thomas and Scalia) use coercion to mean only legally compelled coercion. In their view, coercion is a central vice the Establishment Clause was designed to outlaw. These Justices reject the purpose prong of the Lemon test, and they view coercion as a necessary impermissible effect to find a violation of the Establishment Clause. Other members of the Court use coercion in a broader sense to include indirect coercion as well as direct coercion. Indirect coercion, under this view, can include psychological coercion as in Justice Kennedy’s opinion in Lee v. Weisman (page 356) characterizing graduation prayer as inherently coercive even though students are not legally required to attend graduation. In addition to disagreeing over the meaning of coercion, members of the Court also disagree about the significance of coercion. Justice Thomas, for example, treats the presence of coercion as an essential element of an Establishment Clause claim. By contrast, Justice Stevens does not believe that coercion is a necessary element of an Establishment Clause claim as he makes clear in his opinion in Santa Fe Independent School District v. Doe (page 387). In his view, the Establishment Clause is violated if the government has an impermissible purpose to advance religion even if it does so in a noncoercive way.

Accommodation of Religion

Government accommodations of religion operate at the intersection of the Establishment and Free Exercise Clauses and therefore require difficult constitutional line drawing. Acceptable accommodation statutes, like the exemption in Amos (page 540), lift an identifiable government-imposed burden on the exercise of religion. While the government may, within limits, accommodate religion without violating the Establishment Clause, it is only rarely required to accommodate religion by the operation of the Free Exercise Clause. Accommodation statutes can satisfy the Lemon test if: (1) they are viewed as furthering a secular purpose, that of the government remaining neutral towards religion, not interfering in religious decisionmaking and not inhibiting the exercise of religion by removing government barriers to the ability of religious organizations to carry out their religious missions; (2) they do not have the effect of advancing religion because the government is not doing the advancing, it is just removing barriers to the religion’s advancement of its own interests; and (3) they are not viewed as creating excessive entanglement with religion because they reduce the level of entanglement as compared to the level that would exist without the accommodation (see Amos - page 540 - for an application of the Lemon test to an accommodation statute) or they involve a governmental inquiry (by a court or administrative agency) to determine that an individual or a religious organization is entitled to the exemption (like the ministerial exemption at issue in Hosanna-Tabor) that is not excessive or inappropriate.

There are constitutional limits, however, on accommodation as can be seen in Estate of Thornton v. Caldor (page 537) and Kiryas Joel. Justice Kennedy in his concurring opinion in Kiryas Joel (pages 566-568) suggested a 3-part test to review accommodation statutes that he proposed as an alternative to the use of the Lemon test. Under his test, an accommodation is constitutional if it (1) alleviates a specific and identifiable burden on religion, (2) does not shift that burden to nonadherents of that religion, and (3) does not discriminate by refusing to accord the same benefit to other similarly situated religions (pages 429-430). This test if applied, for example, to Caldor would invalidate the accommodation there under prong 2 - burden shifting to non-Sabbath observers. In Kiryas Joel, Justice Kennedy argued that his test was satisfied by the accommodation in that case, but the law was nevertheless unconstitutional because the legislature had drawn political boundaries on the basis of religion. Justice Souter's opinion, by contrast, can be viewed as finding that the law failed to satisfy prong 3 of the test because it favored the Satmars over other religions. A recent example of the application of Justice Kennedy's test is found in Cutter v. Wilkinson (page 735). In that case, the Court rejected a facial challenged to the institutionalized persons provisions of RLUIPA. Under the challenged provisions of that federal statute, a claimant has a cause of action when the government substantially burdens the exercise of religion by institutionalized persons. The statute employs a compelling interest/least restrictive alternative test to review such government actions even though such heightened scrutiny would not be available under the Free Exercise Clause. Since the statute goes beyond the requirements of the Free Exercise Clause, it was challenged as an accommodation of religion that violated the Establishment Clause. The Court rejected the argument because the statute lifted government-imposed burdens on the exercise of religion by institutionalized persons, did not require that the burden be shifted, and was neutral as among religions.

While many accommodation statutes lift burdens that are imposed by the government (such as in Amos where religious employers were exempted from compliance with Title VII's prohibition of religious discrimination), others lift privately created burdens on religious exercise (such as in Caldor where the need to work on the Sabbath was created by private employers and lifted by the Connecticut statute). It is clear that a law that lifts a burden imposed by the government itself is likely to be constitutionally acceptable under the Establishment Clause. It is less clear that a  law which removes a burden imposed by private conduct will be considered constitutional under the Establishment Clause. The Free Exercise Clause never requires the lifting of a privately imposed burden, but in limited circumstances it may require the lifting of a burden imposed by the government (as in Wisconsin v. Yoder).

What is a religion?

The dominant test used by the lower courts to identify whether a group is a religion is the 3 part test developed in Judge Adams' concurring opinion in Malnak v. Yogi (pages 586-87): (1) the ideas of the group must concern ultimate ideas such as the meaning of life and death, the role of human beings in the universe and the difference between right and wrong; (2) the ideas of the group must form a comprehensive belief system and cannot only address isolated issues; and (3) the group must have formal, external or surface signs that may be analogized to accepted religions such as formal services, ceremonies, clergy, holidays etc. While the identification of a religion is not limited to traditional theistic religions, it does rely on the existence of an analogy to traditional religions and attempts to distinguish between lifestyle choices and religion and between secular philosophy, political ideology or social movements and religion. The distinction between a lifestyle choice and a religious practice is seen in Wisconsin v. Yoder (page 653). The distinction between a  social or political ideology and a religion is relied on in Africa v. Commonwealth of Pennsylvania (page 593). Deciding whether particular behavior or a particular activity is religious or not can be an issue in both Establishment (Malnik v. Yogi) and Free Exercise (Wisconsin v. Yoder) cases. However, it is more like to arise under the Free Exercise Clause.

VI. Free Exercise of Religion

A.  Preliminary Hurdles

Under the Free Exercise Clause, for a challenger to seek protection under that clause, the challenger must have a sincerely held religious belief or practice which has been burdened (either through direct or indirect coercion or through the imposition of penalties) by the government. For example, in Sherbert v. Verner (page 637) the burden is the loss of government benefits, and in Wisconsin v. Yoder (page 653) the burden is the risk of criminal penalties for truancy. The government may defeat such a claim before reaching the merits of the claim in a number of different ways: (1) showing that the asserted religious belief is not sincerely held (United States v. Ballard - page 601); (2) showing that the conduct at issue is not a religious practice (Africa - page 593); (3) showing that no religious practice has been burdened or interfered with (Justice O'Connor's concurring opinion in Wallace v. Jaffree - page 336); or (4) showing that the government has not sought to coerce particular behavior either directly or indirectly even though the effect of its actions has been to interfere with religious practice (such as the government's use of a social security number in Bowen v. Roy - page 674).

B.  Pre-Smith

Prior to the Court’s decision in Employment Division v. Smith (page 695), based on a series of cases decided beginning in the 1960s and continuing through the 1980s (Sherbert, Yoder, Thomas, Frazee, Lee), once the challenger had proven the necessary elements of a free exercise claim (showing that the government has burdened a sincerely-held religious belief), the burden shifted to the government to justify its refusal to grant an exemption to the religious practitioner. In that analysis, a statute that burdened religious freedom needed to be justified under the strict scrutiny standard of review. In that review, the issue for the Court was whether requiring the government to grant an exemption to the person bringing the free exercise claim would significantly undermine the government’s ability to protect a compelling objective. Using this test, in Sherbert v. Verner (page 637) the Court found that the government had not shown that it was necessary to preclude a religious excuse for refusing employment in order to protect the government's interest in preventing fraud in the receipt of unemployment compensation benefits. By contrast, in United States v. Lee (page 660) the Court found that it was necessary for the government to refuse to grant an exemption to the Amish employer’s obligation to contribute to the social security system for his employees in order to protect the integrity of the tax collection system.

C.  Employment Division v. Smith

In Smith, Justice Scalia's majority opinion reinterpreted the Court's previous case law. In ruling that the Free Exercise Clause did not require a religious exception to state drug laws, the Court held that the government was only required to provide a reasonable justification for its decision not to grant an exception from a neutral law of general applicability. Since Smith most free exercise claims are subjected to very limited review. If the claimant seeks an exemption from a neutral law of general applicability that prohibits the performance of an act that the practitioner engages in for religious reasons or requires the performance of an act that the challenger finds objectionable on religious grounds, the government may apply a neutral law of general applicability to the challenger if the government can show that it has a reasonable justification for its refusal to grant an exemption.

However, Smith avoided overturning prior cases in which laws were struck down as violative of the Free Exercise Clause using strict scrutiny by viewing those cases as falling within exceptions to the general rule. For example, Wisconsin v. Yoder was explained as a case in which the government was burdening a right protected by both the Free Exercise Clause and another constitutional right - the fundamental right of parents to direct the upbringing of their children. In such hybrid cases, it is still the law that the government must satisfy strict scrutiny by showing that it has a compelling government interest and that it has no less restrictive alternative means to protect that interest.

Moreover, the Sherbert and Thomas line was preserved and explained as involving cases in which the challenger is seeking unemployment benefits and the government has provided an administrative process that includes individualized review of the reasons for the relevant conduct and not a case in which a claimant seeks an exemption from a law of general applicability. In cases in which individualized review and exemptions are available, the government must justify the refusal to grant an exemption to the religious practitioner by satisfying strict scrutiny and showing that it has a compelling governmental interest and that its interest would be undermined by granting an exemption to the religious practitioner (Sherbert v. Verner).

There are certain circumstances in which Free Exercise claims were always, even pre-Smith, given short shrift and those cases obviously survive Smith. They include cases where the courts grant great deference to government decisionmakers such as in the military context or the prison context.

D.  Post-Smith Developments

1) The Supreme Court has decided three Free Exercise cases since Smith. The first was Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (page 706). In that case the Court distinguished Smith since the law at issue was not a neutral law of general applicability. It was purposefully designed to suppress particular religious practices. Under that circumstance, it was analyzed using the strict scrutiny test and it failed that test. The second was Locke v. Davey (page 718). In that case, the Court for the first time considered the issue of whether the exclusion of some aspects of religious education from a scholarship program violated the Free Exercise Clause. This issue arises as a consequence of the Court’s decision to allow sectarian schools to participate in private choice programs under cases like Zelman and Witters. The corollary question posed is whether sectarian schools must be permitted to participate or if their exclusion violates the Free Exercise Clause. While only resolving part of this issue, the Court in Locke v. Davey (page 718) upheld a Washington college scholarship program that refused to fund students obtaining a degree in devotional theology because of a provision in the Washington State Constitution that precluded such funding. The scholarship program at issue provided funding to students who attended sectarian schools and who took courses in religion and devotional theology, but excluded students who majored in devotional theology. Because religious schools and courses were funded, the Court refused to characterized the program as hostile to religion as in Lukumi. Under a less rigorous standard of review than the strict scrutiny test used in Lukumi, the Court concluded that the state had a substantial interest to justify the exclusion and that the exclusion imposed a minor burden on scholarship recipients. The Court did not consider whether programs that involved broader exclusions of religious education would be constitutional. The third was Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC decided in 2012. In that case, the Court concluded that the Free Exercise Clause protects the rights of religious groups to select (hire and fire) their own ministers free of government interference. In reaching this conclusion in the context of an ADA claim by a teacher at a religious school, the Court distinguished Smith. Even thought the ADA is a neutral law of general applicability, Smith did not involve "government interference with an internal church decision that affects the faith and mission of the church itself." That the government is barred from interfering in such decisions, including the decision to fire a minister, is made clear by events involving James Madision early in U.S. history.  

VII.  Religious Freedom Restoration Act (RFRA)

After Smith, Congress enacted the Religious Freedom Restoration Act (RFRA). The purpose of the statute was to restore, as a statutory right, the Free Exercise analysis that existed prior to Smith. The statute restores the strict scrutiny test as applied in Yoder and Sherbert for use in cases where a religious exercise is substantially burdened by the government. However, as the result of a Supreme Court decision, RFRA only applies to actions by the federal government, such as the treatment of prisoners in federal prisons, soldiers in the military, and the application of federal criminal laws such as the Controlled Substances Act. RFRA does not apply to state action because such an application of the statute was held to exceed Congress's power under Section 5 of the 14th Amendment.

VIII.  Religious Land Use and Institutionalized Persons Act (RLUIPA)

After RFRA was struck down as unconstitutional as applied to the states, Congress enacted a new statute that it believed was more likely to survive a constitutional challenge. That statute is RLUIPA - The Religious Land Use and Institutionalized Persons Act. The statute, like RFRA, requires that the Court employ the strict scrutiny test if a law substantially burdens the religious exercise of an individual who is protected by the statute. The statute applies to land use regulations and institutionalized persons if the challenged program receives federal financial assistance, if the burden affects interstate or international commerce or commerce with Indian tribes, or if the burden results from a land use regulation that provides for a system of individualized review of the proposed use of the property. The statute relies on a combination of Congress’s Commerce and Spending Powers and the Smith Court’s reliance on the existence of individualized review as a rationale for distinguishing and preserving the decision in Sherbert v. Verner. Since its enactment, constitutional challenges to RLUIPA have been raised. In a recent decision, Cutter v. Wilkinson, the Supreme Court rejected an Establishment Clause challenge to the institutionalized persons provisions of RLUIPA. The Court concluded that the challenged sections of RLUIPA were a constitutionally acceptable accommodation of religion. RLUIPA rights are not absolute since the statute requires that “courts must take account of the burdens a requested accommodation may impose on nonbeneficiaries,” thus avoiding the difficulties of the statute struck down in the Caldor decision. In addition, the Act is to be administered on a neutral basis among religions and cannot be based on favoritism to particular religions. The Court has not yet considered any constitutional challenges to the land use provisions of the statute.