# The Law of Church and State: Developments in the Supreme Court Since 1980

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URL: https://www.frixlaw.com/law-library/documents/crs%3A98-65

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** August 15, 2002
- **Citation:** 98-65

## Text

Order Code 98-65 A

Report for Congress
Received through the CRS Web

The Law of Church and State:
Developments in the
Supreme Court Since 1980

Updated August 15, 2002

-name redactedLegislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

The Law of Church and State: Developments in the
Supreme Court Since 1980
Summary
The religion clauses of the First Amendment provide that “Congress shall make
no law respecting an establishment of religion, or prohibiting the free exercise thereof
....” Prior to the past two decades the Supreme Court frequently construed these
clauses to create, in Thomas Jefferson’s oft-quoted metaphor, a “wall of separation
between church and state.” However, many of the Court’s decisions precipitated
substantial public discontent and spawned organized efforts to overturn or otherwise
alter its decisions. Particularly since Ronald Reagan was elected to the Presidency
in 1980, those efforts have been increasingly successful.
That election has proven to be a critical turning point, because President Reagan
and his successor, President Bush, were able to replace more than half of the Justices
on the Supreme Court during their terms. President Reagan elevated Justice
Rehnquist to Chief Justice and appointed Justices O’Connor, Scalia, and Kennedy,
while President Bush appointed Justices Souter and Thomas. Not all of these
appointees have fulfilled the expectations of the Presidents who appointed them, but
they have led to vigorous debates on the Court about the meaning of the religion
clauses and to a church-state jurisprudence that increasingly loosens the
constitutional constraints on government action that affects religion.
During the past two decades the Court has been a willing forum for the debate
over the proper relationship between government and religion. From the fall of 1980
to the present the Court has handed down 59 decisions on issues of church and state
— more than in any previous comparable period. In many of its decisions the Court
has been sharply split. But the changes in the Court’s composition have had a
demonstrable effect: The Court has substantially narrowed the scope of the free
exercise clause as a constraint on government action and it has begun to recast its
establishment clause jurisprudence as well. On both clauses the Court’s
interpretations are now giving government greater discretion than formerly to take
actions that affect religious practices and institutions, both positively and negatively.
Nonetheless, the Court remains sharply divided on the interpretation and application
of the religion clauses, and the outcome of particular cases is often unpredictable.
In sum, the period since 1980 has been a profoundly important time for the law
of church and state in the Supreme Court. The arguments both on and off the Court
about the proper relationship of government and religion have been spirited and
extensive, and the Court has issued dozens of rulings on specific issues. This report
summarizes the doctrinal debates and shifts on the religion clauses that have occurred
on the Court during this period. It summarizes and examines as well the legal effect
of all of the decisions the Court has handed down concerning church and state since
1980. An Appendix lists these decisions and how each of the Justices voted. The
report will be updated as new decisions are rendered by the Court.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
“Congress Shall Make No Law ... Prohibiting the Free Exercise [of Religion]”:
The Rise and Fall of the Strict Scrutiny Standard . . . . . . . . . . . . . . . . . 5
(a) From Sherbert-Yoder-Thomas to Smith . . . . . . . . . . . . . . . . . . . . . . 5
(b) Harbingers of Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(c) The Aftermath of Smith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(d) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
“Congress Shall Make No Law Respecting an Establishment of Religion...”:
Lemon and the Lessons of History . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(a) The Separationist Understanding . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(b) The Critique . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(c) The Response . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
(d) Modifications of the Lemon Test . . . . . . . . . . . . . . . . . . . . . . . . . . 29
(e) Other establishment clause tests – coercion and tradition . . . . . . . 35
(f) Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Particular Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
(a) Religious Activities in the Public Schools . . . . . . . . . . . . . . . . . . . 37
(b) Religion in the Public Square . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
(c) Public Aid to Religious Organizations . . . . . . . . . . . . . . . . . . . . . . 51
(d) Governmental Solicitude for Religion . . . . . . . . . . . . . . . . . . . . . . 59
(e) Taxation of Religious Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
(f) Other Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
APPENDIX
SUPREME COURT DECISIONS ON CHURCH AND STATE, 19802002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

The Law of Church and State:
Developments in the Supreme Court Since
1980
Introduction
The religion clauses of the First Amendment to the Constitution provide that
“Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof ....” In its modern jurisprudence (beginning in the 1940s)
the Supreme Court frequently construed these clauses to create, in Thomas
Jefferson’s words, a “wall of separation between church and state.”1 But many of the
Court’s decisions – particularly with respect to prayer and other religious activities
in the public schools – were controversial, and they often led to concerted political
efforts to change the Court’s church-state jurisprudence.
Prior to 1980 those efforts were unavailing, and a separationist perspective
continued to dominate the Court’s interpretation of the religion clauses. But that
began to change with the election of Ronald Reagan to the Presidency in 1980. His
election was fueled in part by opposition to the Court’s church-state decisions; and
in response, he not only became the first President to propose a constitutional
amendment to overturn some of the Court’s church-state decisions2 but also
1

In a letter of January 1, 1802, to the Baptist Association of Danbury, Connecticut,
President Jefferson stated as follows:
Believing with you that religion is a matter which lies solely between man and
his God; that he owes account to none other for his faith or his worship; that the
legislative powers of the Government reach actions only, and not opinions — I
contemplate with sovereign reverence that act of the whole American people
which declared that their legislature should “make no law respecting an
establishment of religion or prohibiting the free exercise thereof,” thus building
a wall of separation between church and State.
Quoted in Everson v. Board of Education, 330 U.S. 1, 16 (1947).

The Court’s modern interpretation of the religion clauses generally dates from the time it
incorporated them into the due process clause of the Fourteenth Amendment and held them
applicable to the states — Cantwell v. Connecticut, 310 U.S. 296 (1940) (free exercise
clause) and Everson v. Board of Education, supra (establishment clause). During the
previous 150 years of the nation’s existence, the Court rarely had occasion to apply and
interpret the religion clauses to the actions of the national government. But once it held
them applicable to the states, issues arose with increasing frequency and led to the
development of an extensive church-state jurisprudence by the Court.
2

In 1981 President Reagan first proposed a constitutional amendment on school prayer. See
(continued...)

CRS-2
appointed public officials who vigorously and publicly challenged the Court’s
jurisprudence.3 He also oversaw energetic efforts by his Solicitors General to argue
for a loosened interpretation of the religion clauses in cases before the Court, both
when the government was a party and as amicus curiae when it was not.4 But to
greater and more long-lasting effect, the election of President Reagan and his
successor, President Bush, opened the door to the possibility of changing the Court’s
church-state jurisprudence by means of the exercise of the Presidential powers of
Article II, Section 2, of the Constitution to “nominate and ... appoint ... Judges of the
supreme Court.”
Presidents Reagan and Bush replaced more than half of the Court during their
twelve years in office. Chief Justice Burger (1985) and Justices Stewart (1980),
Powell (1986), Brennan (1990), and Marshall (1991) all retired from the Court during
this period. In their stead President Reagan elevated Justice Rehnquist to Chief
Justice and appointed Justices O’Connor, Scalia, and Kennedy; and President Bush

2

(...continued)
S.J.Res. 199 and H.J.Res. 493, 97th Cong., 1st Sess. (1981). In 1984 the Senate Judiciary
Committee reported a modified version of that amendment (S.J.Res. 73), and the Senate
debated the matter for two and a half weeks. Ultimately, a majority voted in favor of it, 5644; but that vote was 11 votes short of the two-thirds majority necessary for the measure to
be adopted. See 130 CONG. REC. 5619 (March 20, 1984). A similar effort took place
soon after the Republicans took control of both the House and the Senate after the 1994
elections. Although no formal votes occurred in the 104th Congress, a number of significant
developments occurred. Perhaps most important, the constitutional debate in Congress
broadened beyond the school prayer issue to include other aspects of the Court’s churchstate jurisprudence. In the 105th Congress that interest and debate persisted; and on May 19,
1998, the House Judiciary Committee favorably reported a modified version of a broadgauge constitutional amendment introduced by Rep. Istook (H.J.Res. 78). After rejecting
two amendments to the proposal, the House voted in favor, 223-203; but that vote fell 61
votes short of the two-thirds majority necessary for adoption. For a fuller description of
Congressional action, see CRS, School Prayer: The Congressional Response, 1962-1998
(December 1, 1998) (Report 96-846A).
3

See, e.g., the address by Attorney General Edwin Meese III to the House of Delegates of
the American Bar Association (July 9, 1985).
4

The Solicitors General under Presidents Reagan and Bush repeatedly urged the Court to
loosen the constraints of the religion clauses on government action affecting religion. Of
the forty-nine church-state cases decided during their terms, the Solicitors General proffered
the government’s views in thirty — sixteen because the United States was a party, fourteen
as an amicus curiae; and in all of them the government argued for a less constrictive
interpretation of the religion clauses. The Solicitors General under President Clinton
continued this effort, as they filed briefs in three of the seven church-state cases that the
Court decided from 1993-2001. They, too, urged the Court in every instance to uphold the
government’s action as constitutional; and in two of the cases they urged the Court to do so
by overturning some of its prior establishment clause decisions. The Solicitor General in
the current Bush Administration so far has intervened as an amicus curiae in one of the three
church-state cases accepted for review by the Court; and in that case he not only filed a brief
but also sought and gained permission to participate in the oral argument. Again, the
Administration’s position favored a loosened interpretation of the establishment clause. See
Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002) (upholding a school voucher program
against establishment clause objections).

CRS-3
appointed Justices Souter and Thomas. These changes led to increasingly public
criticism on the Court of its prior church-state jurisprudence and to very sharp splits
among the Justices on new cases that came before it. It quickly became clear that
Chief Justice Rehnquist and Justices Scalia and Thomas staunchly favored greater
government discretion with respect to religion and that Justices O’Connor and
Kennedy, although not as predictable, often decided cases from a similar perspective.
Although some of these appointees did not entirely fulfil the expectations of the
Presidents who appointed them,5 they did precipitate vigorous debates about the
meaning of the religion clauses and did fuel the increasing dominance on the Court
of what are deemed “conservative” constructions of the law. President Clinton
appointed Justices Ginsburg and Breyer to the Supreme Court in 1993 and 1994,
respectively, to replace retiring Justices White and Blackmun; but while these
Justices generally favor separationist constructions of the religion clauses, their
appointments did not reestablish a consistent separationist majority.6
During this time the Supreme Court has been a willing, even eager, forum for
disputes over the proper relationship between government and religion. From the fall
of 1980 to the present the Court has handed down 59 decisions7 in cases raising
church-state issues — more than in any prior comparable time period. Its decisions
have involved such familiar issues as religious activities in the public schools and
direct public aid to sectarian schools. But the Court has also addressed such
relatively unexplored matters as the constitutionality of the public display of religious
symbols, legislative prayer, indirect aid to sectarian schools, government regulation
of minority religious practices, the accommodation and protection of religion, and
the taxation and regulation of religious entities.
As noted, the Court has been sharply split in many of these decisions. Nearly
a third of the Court’s church-state decisions since 1981 have been by a margin of 5-4

5

See, e.g., Lee v. Weisman, 505 U.S. 577 (1992), in which the Court reaffirmed its prior
school prayer decisions and held that the establishment clause forbids a public secondary
school from including prayers by a clergyman in its commencement ceremony. The
decision was 5-4, with Justices O’Connor, Kennedy, and Souter — all appointed by
Presidents Reagan and Bush — joining Justices Blackmun and Stevens in the majority.
Indeed, Justice Souter appears to have become one of the leading separationists on the
Court, and Justice O’Connor has often been a swing vote on church-state issues.

6

It might be noted that President Clinton’s appointees have also not always fulfilled the
expectations that separationist advocates might have had of them. See, e.g., City of Boerne
v. Flores, 521 U.S. 407 (1997), which held the Religious Freedom Restoration Act
unconstitutional (Justice Ginsburg was part of the majority) and Mitchell v. Helms, 530 U.S.
793 (2000), which upheld as constitutional the loan of instructional materials and equipment
to sectarian schools (Justice Breyer was part of the majority). Nonetheless, they often join
with Justices Stevens and Souter in the expression of separationist views.
7

This total obviously is selective in some respects. It includes all decisions involving the
establishment or free exercise clauses, all decisions concerning religious discrimination
under Title VII of the Civil Rights Act of 1964, selected decisions involving religious
speech but decided under the free speech clause, and selected decisions involving the
taxation of religious entities. It does not include dismissals of appeals from state court
decisions or summary affirmances by an equally divided Court. See the Appendix for a
listing of the pertinent cases and for a breakdown of how the Justices voted on each case.

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(compared to less than 20 percent for all of the Court’s decisions during this period).8
But although some of the cases have been decided by the narrowest of margins, the
changes in the Court’s composition have had a demonstrable effect. The Court has
dramatically altered its interpretation of the free exercise clause by generally
replacing the strict scrutiny standard it formerly employed with the more lenient
standard of formal neutrality.9 With respect to the establishment clause, the Court’s
actions have not been quite so sweeping. But it has in its most recent decisions
overturned several prior rulings that were separationist in nature10; and on issues
which it had not previously addressed, a substantial portion of the Court’s
establishment clause decisions since 1980 can be described as accommodationist in
nature. Under both clauses the Court has created a wider constitutional space for
government action affecting religious institutions and religious practices.
In sum, the period since 1980 has been a time of sustained ferment on the Court
about the law of church and state. That ferment has produced spirited and extensive
arguments about the meaning of the religion clauses of the First Amendment and the
proper relationship of government and religion as well as a plethora of specific
rulings. This report provides an overview of that ferment and of the changes in the
Court’s church-state jurisprudence. It examines the doctrinal shifts and debates on
the free exercise and establishment of religion clauses that have occurred on the
Court since Ronald Reagan’s election to the Presidency in 1980. It summarizes and
examines as well the legal effect of each of the 59 decisions the Supreme Court has
handed down concerning church and state from its October, 1980 Term, through its
October, 2001 Term (i.e., October, 1980, through June, 2002). Finally, it concludes
with an Appendix listing all of the Court’s church-state decisions during this period
and the votes of each of the Justices.

8

These statistics are based on the annual compilations published in the November Harvard
Law Review and, for the 2001 Term, in 71 United States Law Week 3102 (July 23, 2002).
Since the 1981 Term (no statistics on 5-4 decisions were compiled for the 1980 Term), 469
of the Court’s 2392 written decisions have been by 5-4 margins — 19.6 percent. In contrast,
17 of its 59 church-state decisions have been by 5-4 margins — 28.8 percent. (These figures
should not be taken too literally; several of the church-state cases, and presumably of the
others as well, involved more than one issue and, thus, more than one vote by the Justices.
But they are indicative of the sharp division on the Court in this area of the law.)

9

Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872
(1990).

10

Agostini v. Felton, 521 U.S. 203 (1997), overturning Aguilar v. Felton, 473 U.S. 402
(1985) and parts of three other decisions, and Mitchell v. Helms, 530 U.S. 793 (2000),
overturning parts of Meek v. Pittenger, 421 U.S. 349 (1975) and Wolman v. Walter, 433
U.S. 229 (1977).

CRS-5

“Congress Shall Make No Law ... Prohibiting the Free
Exercise [of Religion]”: The Rise and Fall of the Strict
Scrutiny Standard
(a) From Sherbert-Yoder-Thomas to Smith. Prior to the past decade
most of the political furor over the Court’s modern church-state jurisprudence
stemmed from its decisions concerning religion in the public schools, public aid to
sectarian schools, and the display of religious symbols in public places — all of
which are essentially establishment clause or free speech issues. But with little
public attention the Court has also wrestled with the question of how broadly to
interpret the free exercise clause. From a construction of the clause in 1963 that gave
special protection to religious practices, the Court by 1990 had moved to a
construction that allows government substantial discretion to regulate and even
prohibit religiously motivated actions.
Over a century ago the Court made clear that the free exercise clause protects
religious beliefs absolutely from governmental interference.11 The difficult question
has been whether, and the extent to which, the clause also protects religiously
motivated conduct or action from governmental interference.
In a number of decisions concerning the Mormon practice of polygamy at the
end of the nineteenth century, the Court answered that question by ruling that the free
exercise clause provided no protection whatsoever for conduct compelled or
motivated by religious beliefs.12 But that interpretation gradually changed, and in the
two decades immediately preceding the 1980s, the Court settled on a broad view of
the scope of the free exercise clause. In two seminal decisions — Sherbert v.
Verner13 and Wisconsin v. Yoder14 — the Court held that religious interests are to be
considered of paramount importance in the constitutional scheme and that
government actions infringing those interests are to be viewed as highly suspect.
In Sherbert the Court held that a state could not, consistent with the free
exercise clause, deny unemployment compensation benefits to a person who was
fired because she refused to work on her Sabbath. The denial of benefits, the Court
said, pressured the claimant to forego her religious practice and thus could be
justified only if it served “some compelling state interest,” a standard it found the

11

Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878).

12

See id.(free exercise clause held to be no defense in prosecution of Mormons for bigamy
and polygamy); Murphy v. Ramsey, 114 U.S. 15 (1885) (free exercise clause held to be no
barrier to a statute prohibiting bigamists and polygamists from serving on juries); Davis v.
Beason, 133 U.S. 333 (1890) (free exercise clause held not to invalidate a statute barring not
only bigamists and polygamists from voting but also those who taught or advocated bigamy
or polygamy); and The Late Corporation of the Church of Jesus Christ of Latter-Day Saints
v. United States, 136 U.S. 1 (1890) (free exercise clause held to provide no protection
against statute revoking the territorial charter of the Mormon Church and confiscating all
of its property not actually used for religious worship or burial).
13

374 U.S. 398 (1963).

14

406 U.S. 205 (1972).

CRS-6
state to be unable to meet. Similarly, in Yoder the Court held the free exercise clause
to mandate an exemption for the Old Order Amish from Wisconsin’s compulsory
education laws. Those laws required all children to attend school until the age of
sixteen, but the Amish believed that attendance beyond the eighth grade would
expose their children to worldly influences dangerous to their salvation. In holding
for the Amish, the Court said that “there are areas of conduct protected by the Free
Exercise Clause of the First Amendment and thus beyond the power of the state to
control, even under regulations of general applicability.”15
In these two cases, in other words, the Court held that government action alleged
to interfere with religious practices could be constitutional only if it were shown to
serve some compelling public interest and to be no more restrictive of religious
practices than necessary. Government action burdening religious exercise, in short,
was deemed to be subject to a constitutional standard of strict scrutiny.
But in the decade after 1980, the Court dramatically altered this construction of
the free exercise clause. Two decisions a decade apart encapsulated that process. In
the first decision in 1981, Thomas v. Review Board, Indiana Employment Security
Commission,16 the Court strongly reaffirmed the broad and sweeping construction it
had given the free exercise clause in Sherbert and Yoder. In Thomas, as in Sherbert,
it held the clause to require a state to grant unemployment compensation benefits to
an individual who interpreted the Bible to forbid him from accepting work on an
armaments production line and who, as a consequence, quit his job. The Court did
so even though Thomas’s scriptural interpretation was a personal one and was not
shared by the religious community to which he belonged (the Jehovah’s Witnesses)
and even though a denial of benefits would have only indirectly burdened his ability
to practice his religion.17 Thomas, thus, made crystal clear that governmental actions
infringing religiously motivated conduct are to be reviewed by the courts under a
standard of strict scrutiny:
The state may justify an inroad on religious liberty by showing that it is the least
restrictive means of achieving some compelling state interest. However, it is still
true that “the essence of all that has been said and written on the subject is that

15

Id. at 220.

16

450 U.S. 707 (1981).

17

A denial of unemployment benefits would not have precluded Thomas from practicing his
religion but only made it more expensive to do so. But the Court found this indirect burden
to be “substantial”:
Where the state conditions receipt of an important benefit upon conduct
proscribed by a religious faith, or where it denies such a benefit because of
conduct mandated by religious belief, thereby putting substantial pressure on an
adherent to modify his behavior and to violate his beliefs, a burden upon religion
exists. While the compulsion may be indirect, the infringement upon free
exercise is nonetheless substantial.
Thomas, 450 U.S. at 717-18.

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only those interests of the highest order ... can overbalance claims to the free
exercise of religion.”18

The decision in Thomas was 8-1, with only then-Justice Rehnquist dissenting.
But in a decision in 1990, the Court resurrected its 19th century interpretation of
the free exercise clause. In Employment Division, Oregon Department of Human
Resources v. Smith,19 the Court held the free exercise clause to provide no protection
whatever for individuals who used peyote in the religious ceremonies of the Native
American Church. Technically, the issue in the case was identical to that in Thomas
— the eligibility for unemployment benefits of two individuals who were
unemployed because they had been fired from their jobs as drug counselors after it
was discovered that they were using peyote in the religious ceremonies of their
church. But the determinative questions in the case were whether the sacramental
use of peyote was illegal under Oregon’s controlled substances law and, if so,
whether the free exercise clause nonetheless required an exemption from the law for
such a religious use. The Oregon Supreme Court construed the State’s law
criminalizing drug use and possession to apply to the sacramental use of peyote, and
in Smith the U.S. Supreme Court held the free exercise clause not to compel an
exemption.20 Consequently, the Court held Oregon’s denial of unemployment
benefits to be constitutional.
In the context of the nation’s war against drugs, that holding was not, in itself,
entirely surprising; and it could have been reconciled with the Court’s prior free
exercise jurisprudence. What was unexpected was that on the way to this conclusion
a majority of the Court largely abandoned the strict scrutiny test established in
Sherbert, Yoder, and Thomas as the standard for free exercise cases. The Court said
the compelling public interest test was simply “inapplicable” to the circumstances of
this case. Moreover, Justice Scalia wrote for the majority, the free exercise clause
never “relieve[s] an individual of the obligation to comply with a `valid and neutral
law of general applicability.’”
...[T]he right of free exercise does not relieve an individual of the obligation to
comply with a “valid and neutral law of general applicability on the ground that

18

Id. at 718, quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).

19

494 U.S. 872 (1990).

20

The case had been before the Court two years previously. But at that time the Oregon
Supreme Court had not ruled on whether the state’s criminal drug statute applied to the
sacramental use of peyote or, if it did, whether that application was compatible with the
Oregon Constitution or the free exercise clause. Consequently, the Supreme Court had
remanded the case back to the Oregon Supreme Court for consideration of those issues. See
Employment Division, Department of Human Resources v. Smith, 483 U.S. 660 (1988),
vacating and remanding, 301 Or. 209, 721 P.2d 445 (1986). In that reconsideration the
Oregon Supreme Court held the state’s controlled substance statute to apply to those who
used peyote in religious ceremonies but held the free exercise clause to immunize such use
from prosecution. See Smith v. Employment Division, Department of Human Resources,
307 Or. 68, 763 P.2d 146 (1988).

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the law proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).”21

To employ the compelling interest test for free exercise purposes, Justice Scalia said,
would “court ... anarchy,” permit every individual “to become a law unto himself,”
and create “a private right to ignore generally applicable laws.”22 Religious
minorities, he said, need to seek protection for their practices in the political process,
not the courts. The fact that “the political process will place at a relative
disadvantage those religious practices that are not widely engaged in,” he stated, is
simply an “unavoidable consequence of democratic government.”23 The margin was
5-4, with the majority formed by the lone dissenter in Thomas (Chief Justice
Rehnquist), two new appointees to the Court (Justices Scalia and Kennedy), and two
who had been in the majority in Thomas (Justices White and Stevens).24
The Court did not abandon strict scrutiny entirely. Justice Scalia’s articulation
of the new standard of formal neutrality retained strict scrutiny for cases involving
government programs allowing individualized assessment of claims for exemption,
such as state unemployment compensation programs — the area in which the strict
scrutiny test was first applied in the free exercise area. In addition, his opinion said
strict scrutiny was still appropriate for governmental actions that discriminate against
religion or deliberately impose special burdens on religion. Finally, Justice Scalia
suggested that “hybrid” claims, i.e., those involving a free exercise claim coupled
with another constitutional interest such as freedom of speech or parental rights,
might also be constitutionally entitled to some degree of exemption from neutral,
generally applicable laws. But his opinion left it decidedly unclear whether strict
scrutiny would apply to such cases, and in any event clearly abandoned strict scrutiny
for all non-hybrid cases other than those involving religious claims for exemption in
programs allowing individualized assessment and deliberate governmental targeting
of religion.
The four dissenters sharply criticized the majority’s constriction of the strict
scrutiny test. Justice O’Connor asserted that Justice Scalia’s view “dramatically
departs from well-settled First Amendment jurisprudence ..., is incompatible with our
Nation’s fundamental commitment to individual religious liberty ..., and relegates a
serious First Amendment value to the barest level of minimum scrutiny ....”
Religious liberty, she said, is a preferred value, and the free exercise clause should
be interpreted to bar “encroachment upon this liberty, whether direct or indirect,
unless required by clear and compelling governmental interests `of the highest
order.’” Justice Blackmun, joined by Justices Brennan and Marshall, charged that
21

Employment Division v. Smith, supra n. 19, at 879, quoting United States v. Lee, 455 U.S.
252, 263 (1982) (Stevens, J., concurring in the judgment).
22

Id. at 884-86.

23

Id. at 890.

24

Although the margin was 5-4 on the disavowal of the strict scrutiny test, the Court divided
6-3 on the merits. Justice O’Connor joined Chief Justice Rehnquist and Justices Scalia,
Kennedy, White, and Stevens in ruling the two Indians ineligible for unemployment
benefits. But she did so on the grounds Oregon had a compelling interest in regulating the
use of drugs, and she dissented vigorously from their disavowal of the strict scrutiny test.

CRS-9
the majority’s decision “effectuates a wholesale overturning of settled law concerning
the Religion Clauses of our Constitution.” It is a “settled and inviolate principle of
this Court’s First Amendment jurisprudence,” he said, that “a state statute that
burdens the free exercise of religion ... may stand only if the law in general, and the
State’s refusal to allow a religious exemption in particular, are justified by a
compelling interest that cannot be served by less restrictive means.”
In short, in Smith the Court stepped back from the separationist standard it had
articulated in Sherbert, Yoder, and Thomas and re-interpreted the free exercise clause
to mean that, in most circumstances, an individual possesses no constitutional right
not to comply “with a valid and neutral law of general applicability on the ground
that the law proscribes (or prescribes) conduct that his religion prescribes (or
proscribes).”25
(b) Harbingers of Smith. This demise of the strict scrutiny test for most free
exercise cases and the possible subordination of religiously motivated conduct to the
will of political majorities, although unexpected in Smith, had in fact been
foreshadowed throughout the decade. In eight free exercise decisions between
Thomas and Smith, the Court had demonstrated increasing discontent with the strict
scrutiny test in free exercise cases. Four of those decisions nominally employed the
test, but the Court held the government to have met its requirements. In the four
other decisions the Court simply held strict scrutiny to be inapplicable in particular
contexts.
In United States v. Lee,26 decided within a year of Thomas, the Court
unanimously held the free exercise clause not to exempt an Amish employer from
paying the employer’s portion of Social Security taxes. The Court noted that the
religious beliefs of the Amish specifically oppose support for a public system of
social insurance. But it held an Amish employer not to be entitled to an exemption
because, it said, “mandatory participation is indispensable to the fiscal vitality of the
social security system.”27
The following Term in Bob Jones University v. United States28 the Court upheld
IRS’ imposition of a racial nondiscrimination condition on the tax exemption
accorded a private college notwithstanding the college’s claim that its discriminatory
practices were mandated by religious belief. On the free exercise claim the Court
applied strict scrutiny but simply asserted in conclusory fashion that “the
Government has a fundamental, overriding interest in eradicating racial
discrimination in education” and that its interest “substantially outweighs whatever
burden denial of tax benefits places on petitioners’ exercise of their religious beliefs.”
The Court’s decision on the free exercise issue was again unanimous.29
25

Employment Division v. Smith, supra n. 19, at 878.

26

455 U.S. 252 (1981).

27

Id. at 258.

28

461 U.S. 574 (1983).

29

Id. at 604. Justice Rehnquist dissented from the Court’s holding that the IRS could
(continued...)

CRS-10
Subsequently, in 1989 the Court in Hernandez v. Commissioner of Internal
Revenue30 upheld IRS’ denial of a tax deduction to members of the Church of
Scientology for payments made for “auditing” and “training” services. The members
claimed that these services were central to the practice of their faith and that the
payments made for them were “fixed donations” entitled to be treated as charitable
contributions under the Internal Revenue Code. But the Court denied the claim, 52.31 The Court said that it doubted that the disallowance of the deduction placed any
“substantial burden” on the Scientologists’ practice of their religion but that even if
it did, the disallowance was justified by the compelling governmental interest in
maintaining a uniform tax system, “free of `myriad exceptions flowing from a wide
variety of religious beliefs.’”32
Finally, in Jimmy Swaggart Ministries v. Board of Equalization33 in 1990, the
Court unanimously upheld the imposition of a general sales and use tax on a religious
organization’s sale of religious materials. Nominally using the strict scrutiny test, the
Court found the imposition of the taxes to violate no religious precept of the religious
organization and to impose no burden on religious organizations different from that
imposed on other sellers. Although the taxes reduced the amount of money the
religious organization had to spend on its religious activities, the Court held that
burden to be “not constitutionally significant.”
These four decisions preserved the form, if not the substance, of strict scrutiny.
Four other decisions eschewed even the form. In Goldman v. Weinberger34 the Court
upheld a military dress code against the free exercise claim of a Jewish psychologist
who felt religiously obligated to wear a yarmulke while on duty. An Air Force
regulation mandating “uniform dress” and barring the wearing of headgear while
indoors had been construed to bar yarmulkes. The Court held the Sherbert-YoderThomas test to be inapplicable in the military context and, as a consequence, found
the free exercise clause to require no exception for religious apparel. “The military,”
the Court said, “is ... a specialized society separate from civilian society” and thus
“our review of military regulations challenged on First Amendment grounds is far
more deferential than constitutional review of similar laws or regulations designed
for civilian society.” “Courts,” it asserted, “must give great deference to the
professional judgment of military authorities concerning the relative importance of
a particular military interest.”35 So long as the military regulations in question are

29

(...continued)
impose a racial nondiscrimination condition on the grant of tax-exempt status to private
schools; but he agreed that if such a condition were imposed, it would not violate the free
exercise clause. See id. at 622, n. 3 (Rehnquist, J., dissenting).
30

490 U.S. 680 (1989).

31

Neither Justice Brennan nor Justice Kennedy participated.

32

Id. at 687, quoting United States v. Lee, supra, at 260.

33

493 U.S. 378 (1990).

34

475 U.S. 503 (1986).

35

Id. at 506-07. The majority was composed of Chief Justice Burger and Justices
(continued...)

CRS-11
reasonable and evenhanded, it held, the free exercise clause is not violated. The
decision was by a 5-4 margin.36
In O’Lone v. Estate of Shabazz37 the Court held strict scrutiny also not to be
applicable in the prison context. The case involved a free exercise challenge by
several Muslim prisoners against New Jersey prison regulations that had the effect
of preventing their participation in Jumu’ah, a weekly worship service commanded
by the Koran. In upholding the regulations, again by a 5-4 margin, the Court asserted
that “we take this opportunity to reaffirm our refusal, even where claims are made
under the First Amendment, to `substitute our judgment on ... difficult and sensitive
matters of institutional administration’ (citation omitted) for the determinations of
those charged with the formidable task of running a prison.”38 “To ensure that courts
afford appropriate deference to prison officials,” it stated, prison regulations need be
examined only to determine whether they are “reasonably related to legitimate
penological interests” such as security and rehabilitation.39 Finding the regulations
in question to be related to both those interests, the Court denied the prisoners’ free
exercise claims.
In Bowen v. Roy40 the Court held strict scrutiny to be inappropriate with respect
to the government’s internal administrative practices that were alleged to burden an
individual’s religious beliefs and practices. That case involved a challenge by an
Abenaki Indian family to the government’s requirements that applicants for benefits
under the Aid to Families with Dependent Children program furnish state welfare
agencies the Social Security numbers of all members of their household and that the
agencies use the numbers in administering their AFDC program.41 The Indians’
interpretation of their religion deemed personal numerical identifiers a “great evil”
to be avoided and perceived their use as preventing an individual from exercising
control over his life and robbing him of his spirit. The Court, without a majority
opinion, remanded the issue concerning the constitutionality of requiring the Indians
to provide their Social Security numbers as a condition of receiving assistance back
to the lower court to see if it had become moot. But on the issue of the

35

(...continued)
Rehnquist, White, Powell, and Stevens.
36

Congress, it might be noted, responded to this decision by adopting a statute permitting
military personnel to wear items of religious apparel while on duty so long as the items are
“neat and conservative” and do not “interfere with the performance of the member’s military
duties.” See 10 U.S.C. 774 (1988).
37

482 U.S. 342 (1987).

38

Id. at 353, quoting Block v. Rutherford, 468 U.S. 576, 588 (1984).

39

Id. at 349.

40

476 U.S. 693 (1986).

41

The case was brought by an Abenaki Indian who claimed on behalf of his two-year old
daughter that a Social Security number would undermine the uniqueness of her person and
spirit and prevent her from asserting the control over her life necessary to develop spiritual
power. That damage, he claimed, would flow both from obtaining a Social Security number
for her and from the use of that number by the state welfare agency.

CRS-12
constitutionality of the government using Social Security numbers already in its
possession to administer its programs, the Court, by an 8-1 margin, found no free
exercise violation.42 The Court asserted that the claim amounted to an effort “to
dictate the conduct of the Government’s internal procedures” and a “demand that the
Government join in the (Indians’) chosen religious practices ....”43 The claimant’s
ability to “believe, express, and exercise his religion,” the Court held, was simply not
impaired by the government’s administrative use of a Social Security number.
Finally, the Court held strict scrutiny analysis to be inapplicable with respect to
the government’s land use decisions in Lyng v. Northwest Indian Cemetery
Protective Association.44 The proposed building of a road for logging purposes in a
region of a National Forest in California had been challenged on free exercise
grounds by several Indian tribes that deemed the region to be sacred and used it for
religious ceremonies. But the Court held that “even if we assume that ... the ... road
will virtually destroy the Indians’ ability to practice their religion, the Constitution
simply does not provide a principle that could justify upholding (their) legal
claims.”45 The Court said the critical question was whether the government’s action
directly coerced individuals into violating their religious beliefs or imposed unique
disabilities on religious activities, and it held that the road-building plan did not. The
road, it found, would only have “incidental effects” that might “make it more difficult
to practice certain religions”46; and thus, the Court said, the government did not need
to demonstrate a compelling justification for the plan. “Whatever may be the exact
line between unconstitutional prohibitions on the free exercise of religion and the
legitimate conduct by government of its own affairs,” the Court stated, “the location
of the line cannot depend on measuring the effects of a governmental action on a
religious objector’s spiritual development.”47 Again, the margin of decision was 5-4.
Between Thomas and Smith the Court did employ strict scrutiny to invalidate
government action on two occasions, both involving state denials of unemployment
compensation to individuals who were unemployed for religious reasons. In Hobbie
v. Unemployment Appeals Commission of Florida48 the Court held unconstitutional
Florida’s denial of unemployment benefits to a person who had been fired from her
retail sales job because she had joined the Seventh Day Adventist Church and was
no longer available for work on her Sabbath, which ran from sundown Friday to
sundown Saturday. In an 8-1 decision, the Court held this case to be controlled by
Sherbert and Thomas and thus subject to strict scrutiny. Finding no significant
differences between those cases and this one, it reiterated that “the State may not

42

Only Justice White dissented from this portion of the Court’s ruling, saying without
further explanation that Thomas and Sherbert “control this case.” See Bowen v. Roy, 476
U.S. at 733 (White, J., dissenting).
43

Id. at 700.

44

485 U.S. 439 (1988).

45

Id. at 451-52.

46

Id. at 450.

47

Id. at 451.

48

480 U.S. 136 (1987).

CRS-13
force an employee `to choose between following the precepts of her religion and
forfeiting benefits, ... and abandoning one of the precepts of her religion in order to
accept work.’”49
Similarly, in Frazee v. Illinois Department of Employment Security50 the Court
unanimously held unconstitutional Illinois’ denial of unemployment benefits to an
individual who refused a job that would have involved working on Sunday, his
Sabbath. The allegedly unique fact of the case was that Frazee belonged to no
organized religious sect or church and his refusal to work, thus, was based on his
personal beliefs as a Christian and not on the tenets or teachings of any established
religious body. But the Court found this fact not to distinguish the case from
Sherbert, Thomas, and Hobbie. In every one of those cases, it said, the claimant was
“forced to choose between fidelity to religious belief and ... employment.”51 Finding
no compelling justification for Illinois’ denial of benefits, the Court held it
unconstitutional.
In sum, it is clear that since 1980 the Court has substantially narrowed the scope
of the free exercise clause. At the beginning of the decade Thomas, building on the
foundation of Sherbert and Yoder, seemed to command that the government
accommodate minority religious practices in all but the most compelling
countervailing circumstances. But after Goldman, Shabazz, Roy, Lyng, and Smith,
that can no longer be said to be the case. Those decisions reassessed the balance
between religious interests and governmental interests and resurrected the standard
of review for free exercise cases that the Court frequently used prior to its 1963
decision in Sherbert. That standard is essentially one of formal neutrality. Except
in the narrow category of eligibility for governmental benefits, the ill-defined area of
“hybrid” claims, and overt government discrimination, the free exercise clause means
only that government must regulate religious practices in a neutral, evenhanded
manner. The clause no longer compels the government to exempt particular religious
practices from the prohibitions and requirements of its statutes and regulations or to
accommodate religious needs in its actions. By the beginning of the 1990s, thenJustice Rehnquist’s dissent in Thomas had become the Court’s standard for most free
exercise cases:
Where ... a State has enacted a general statute, the purpose and effect of which
is to advance the State’s secular goals, the Free Exercise Clause does not ...
require the State to conform that statute to the dictates of religious conscience of
any group.52

49

Id. at 146, quoting Sherbert v. Verner, supra, at 404.

50

489 U.S. 829 (1989).

51

Id. at 1516, quoting Hobbie, supra, at 144.

52

Thomas v. Review Board, Indiana Employment Security Division, 450 U.S. at 723
(Rehnquist, J., dissenting).

CRS-14
(c) The Aftermath of Smith.
Since the Smith decision in 1990, the Court has rendered only one other free
exercise decision, albeit a significant one. Primary attention has focused on the
political reaction to Smith and the resulting struggle between Congress and the Court
about which branch of government has primary responsibility for determining the
scope to be afforded constitutional rights such as the free exercise of religion. That
struggle ultimately resulted in a substantial diminution in Congress’ ability to
legislate protections for constitutional rights beyond what the Court has allowed. The
following sections summarize these developments.
(1) Lukumi Babalu Aye. In Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah53 the Court employed Smith’s framework of analysis but still found strict
scrutiny to be applicable. As a result, the Court held unconstitutional several city
ordinances prohibiting the ritual sacrifice of animals.
The case arose when the Church of the Lukumi Babalu Aye, Inc., sought to
bring the practices of the Santeria religion into the open by establishing a church and
cultural center in Hialeah, Florida. The Santeria faith has no centralized authority or
written tenets but centers on the performance of certain rituals and ceremonies for
such life events as birth, marriage, sickness, and death. These rituals often involve
the sacrifice of goats, fowl, sheep, and/or turtles by means of cutting their carotid
arteries and previously had been performed in private homes with only limited public
awareness. When the proposal to establish a Santeria church and cultural center in
Hialeah became public, these practices aroused vehement public antipathy. The City
Council responded by adopting a series of resolutions and ordinances condemning
Santeria’s practices and making various aspects of the Santeria sacrifice ritual illegal.
The Supreme Court held Hialeah’s ordinances to violate the free exercise clause,
9-0. The Court noted that under Smith “a law that is neutral and of general
applicability need not be justified by a compelling governmental interest even if the
law has the incidental effect of burdening a particular religious practice.”54 But it
found Hialeah’s ordinances to be neither neutral nor of general applicability, because
they prohibited the killing of animals only for religious reasons. Killing for secular
reasons — hunting, pest control, euthanasia, etc. — was not forbidden. As a
consequence, Justice Kennedy concluded for the Court, “the ordinances had as their
object the suppression of religion,”55 and strict scrutiny of the ordinances was still
appropriate under the Smith framework of analysis. Finding that Hialeah failed to
show either that the ordinances served any compelling governmental interests or that
they were drawn in narrow terms to accomplish their objectives, Justice Kennedy
found for the Court that the ordinances violated the free exercise clause:

53

508 U.S. 520 (1993).

54

Id. at 2226.

55

Id. at 2231.

CRS-15
Legislators may not devise mechanisms, overt or disguised, designed to persecute
or oppress a religion or its practice. The laws here in question were enacted
contrary to these constitutional principles, and they are void.56

Thus, Babalu Aye made clear that, notwithstanding the Court’s relaxation of the
strictures of the free exercise clause in Smith, government still cannot single out
particular religious practices for special burdens not imposed on analogous secular
conduct. The free exercise clause, as construed in Smith, may not mandate any
exemptions for religious practices from burdensome or even prohibitory laws; but it
does mandate that such laws be religiously neutral and generally applicable.
(2) RFRA and City of Boerne. The apparent abandonment of strict scrutiny
in Smith aroused widespread concern in the religious community and elsewhere and
led Congress, after three years of consideration, to enact the “Religious Freedom
Restoration Act” (RFRA).57 Purportedly leaving Smith intact as the constitutional
standard for free exercise cases, RFRA mandated the use of the strict scrutiny test as
a statutory standard governing the interaction of government and religion. As
enacted, RFRA provided that a statute or regulation of general applicability could
lawfully burden a person’s exercise of religion only if it were shown to be “essential
to further a compelling governmental interest and (to be) the least restrictive means
of furthering that compelling governmental interest.” RFRA made the standard
applicable to governmental action at every level of government — federal, state, and
local — and allowed aggrieved persons to bring suit if they believed their free
exercise of religion had been restricted by government in violation of the statutory
strict scrutiny standard.
However, in 1997 the Supreme Court held RFRA to be unconstitutional as
applied to the states and localities. In City of Boerne, Texas v. Flores58 the Court
held, 6-3, that Congress lacks the constitutional power to impose such a sweeping
requirement on the states. In enacting RFRA Congress had relied, in part, on its
power under § 5 of the Fourteenth Amendment to enact “appropriate legislation” to
enforce the substantive protections of the Amendment, including the religious liberty
protections incorporated in the due process clause. But the Court said that RFRA
exceeded Congress’ power under §5. In imposing a strict scrutiny standard for free
exercise claims, it stated, Congress altered the meaning of the free exercise clause as
determined by the Court, and “[l]egislation which alters the meaning of the Free
Exercise Clause cannot be said to be enforcing the Clause.”
Moreover, the Court asserted, RFRA constituted “a considerable ... intrusion
into the States’ traditional prerogatives and general authority to regulate for the health
and welfare of their citizens.” In enacting RFRA, it noted, Congress had failed to
develop a legislative record that showed extensive denials of religious liberty. Yet
RFRA was so broad, the Court said, that it intruded “at every level of government,
displacing laws and prohibiting official actions of almost every description and
regardless of subject matter.” As a consequence, the Court concluded, RFRA
56

Id. at 2234.

57

P.L. 103-41, 103d Cong., 1st Sess. (Nov. 16, 1993); 42 U.S.C.A. 2000bb et seq.

58

521 U.S. 407 (1997).

CRS-16
“reflects a lack of proportionality or congruence between the means adopted and the
legitimate end to be achieved ... and contradicts vital principles necessary to maintain
separation of powers and the federal balance.”
In short, the Court in Boerne affirmed its own primacy in determining the scope
to be afforded the rights protected in the Constitution. Congressional efforts to
protect those rights, it said, cannot – at least in the absence of a strong record of
abuse needing to be rectified – broaden that right beyond what the Court has
delineated.
(3) Administration and Congressional Response to Boerne. In
response to the Boerne decision, the Clinton Administration adopted a policy
affirming that RFRA remains valid for the federal government. For that application,
it said, Congress did not rely on § 5 of the Fourteenth Amendment but its legislative
powers under Article I of the Constitution. The current Bush Administration has
continued to maintain that policy.
Also in response, Congress, after considerable debate, enacted the “Religious
Land Use and Institutionalized Persons Act of 2000” (RLUIPA).59 That statute is
narrower in scope and relies on different Congressional powers than RFRA. It
imposes a statutory strict scrutiny test on state and local zoning and landmarking laws
that “impose a substantial burden on an individual’s or institution’s exercise of
religion” and on state and local actions that impair the religious practices of
individuals in public institutions such as prisons, mental hospitals, and nursing
homes. But instead of using § 5 of the Fourteenth Amendment, RLUIPA is based
largely on Congress’ interstate commerce and spending powers under Article I, § 8,
of the Constitution.
Both the Administration’s contentions that RFRA remains applicable to the
federal government and RLUIPA are being challenged in the courts. No case has yet
been accepted for review by the Supreme Court.
(d) Conclusion. Both Babalu Aye and City of Boerne illustrate that the
ferment on and off the Court over the free exercise clause was not ended by Smith.
In Babalu Aye Justices Blackmun, O’Connor, and Souter, although joining in the
Court’s judgment in the case, all criticized its use of the Smith rule. Justice Souter
argued that the Smith rule reflects a particularly narrow conception of neutrality. “A
law that is religion neutral on its face or in its purpose,” he said, “may lack neutrality
in its effect by forbidding something that religion requires or requiring something that
religion forbids.” Thus, he argued, the “formal” neutrality reflected in the Smith
rule, which only bars laws which intentionally discriminate against religion, needs
to be supplemented with “substantive” neutrality, which would “generally require
government to accommodate religious differences by exempting religious practices
from formally neutral laws.” He said as well that Smith is “in tension with” the
Court’s prior free exercise decisions and with the historical evidence of the original
intent of the free exercise clause. In a proper case, he said, the Court should “reexamine the rule Smith declared.” Justices Blackmun and O’Connor reiterated the

59

P.L. 106-204 (Sept. 22, 2000); 114 Stat. 804; 42 U.S.C.A. 2000cc et seq.

CRS-17
view they articulated in their opinions in Smith that “Smith was wrongly decided.”
Similarly, in City of Boerne Justices O’Connor and Breyer (Blackmun’s replacement)
argued that the case should have been used as a vehicle for overturning Smith, and
Justice Souter contended that there should at least have been briefing and argument
on the merits of Smith before the Court addressed the question of Congress’ authority
under § 5 of the Fourteenth Amendment.
Nonetheless, the central fact remains: Since 1980 the Supreme Court has
substantially restricted the constitutional protection afforded religious practices by
the free exercise clause. As a matter of constitutional law, Smith reigns. Intentional
discrimination against religious practices violates the free exercise clause, but not
inadvertent discrimination that results from the application of statutes and regulations
of general applicability. Moreover, Congress’ power to alter the Smith standard by
legislation has been substantially limited by the decision in Boerne.

“Congress Shall Make No Law Respecting an Establishment
of Religion...”: Lemon and the Lessons of History
The debates among the Justices about the free exercise clause in the period since
1980 were, at least until Smith, relatively sedate. But that has not been the case with
the establishment clause. On the construction of that clause the Justices have
disagreed vigorously and, at times, testily. The Court has not yet altered its
interpretation of the establishment clause as fully as it has the construction of the free
exercise clause, but the changing composition of the Court has still had a substantial
impact. Since 1980 the Court has rendered a number of decisions that affirm
government’s discretion to take actions protecting or benefitting religion; it has
substantially modified the Lemon test it formulated in 1971 to guide its consideration
of the constitutionality of government actions under the establishment clause; and in
several of its most recent rulings it overturned or narrowed a number of its prior
establishment clause decisions.
The arguments on the Court have ranged over virtually every aspect of its
establishment clause jurisprudence. In part the criticism of its past decisions has
been wholesale in nature. Various Justices have termed the Court’s establishment
clause jurisprudence “embarrassing,”60 “unprincipled,”61 “in hopeless disarray,”62 and
as manifesting an “unjustified hostility toward religion.”63 But four aspects of the
separationist interpretation of the establishment clause have been particular focal
points for criticism and debate: (1) the Court’s repeated use of Jefferson’s phrase
“wall of separation between church and state” as a metaphor for the meaning of the
establishment clause; (2) its reliance on European and colonial history in interpreting
the clause; (3) its development and application of what is known as the tripartite, or
60

Edwards v. Aguillard, 482 U.S. 578, 639 (1987) (Scalia, J., dissenting).

61

Wallace v. Jaffree, 472 U.S. 38, 113 (1985) (Rehnquist, J., dissenting).

62

Rosenberger v. The Rector and Visitors of the University of Virginia, supra (Thomas, J.,
concurring).
63

County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492
U.S. 573, 655 (1989) (Kennedy, J., dissenting).

CRS-18
Lemon, test; and (4) its understanding of the original intent of the first Congress in
formulating the establishment clause. All of these aspects have been interwoven in
the Court’s establishment clause jurisprudence, and all are critical to any
reinterpretation. The following subsections summarize the contentions made by the
Justices on these issues and the effect on its establishment clause jurisprudence.
(a) The Separationist Understanding. In the seminal decisions of the
Court’s modern establishment clause jurisprudence, the Court rooted its
interpretation of the clause in the history of the American colonies and of the
colonists’ European forebears. The First Amendment “is at once,” the Court said in
1947, “the refined product and the terse summation of that history.”64 The Court
cited in particular the “turmoil, civil strife, and persecutions” that had been endemic
in Europe in the centuries preceding and contemporaneous with the colonization of
America as various religious sects allied themselves with government to establish
their supremacy65:
With the power of government supporting them, at various times and places,
Catholics had persecuted Protestants, Protestants had persecuted Catholics,
Protestant sects had persecuted other Protestant sects, Catholics of one shade of
belief had persecuted Catholics of another shade of belief, and all of these had
from time to time persecuted Jews. In efforts to force loyalty to whatever
religious group happened to be on top and in league with the government of a
particular time and place, men and women had been fined, cast in jail, cruelly
tortured, and killed.66

Many of the early settlers came to America, the Court said, to “escape the bondage
which compelled them to support and attend government-favored churches.”67
Although they often engaged in the same practices themselves, the Court observed
that over time the colonists gradually developed a “feeling of abhorrence” about such
practices and by the time of the Revolution had begun to disestablish the unions of
church and state that existed.
In these early decisions the Court stressed as “particularly relevant” to the
meaning of the First Amendment the experience of Virginia, which, after a
momentous struggle, disestablished the Anglican Church in 1785 and adopted
Jefferson’s “Bill for Religious Liberty.” Virginia, it said, “provided a great stimulus
and able leadership” for the view that “individual religious liberty could be achieved
best under a government which was stripped of all power to tax, to support, or
otherwise to assist any or all religions, or to interfere with the beliefs of any religious
individual or group.”68 Virginia’s experience, the Court said, “best reflect[ed] the

64

Everson v. Board of Education, 330 U.S. 1, 33 (1947) (Rutledge, J., dissenting).

65

Id. at 8 (opinion of the Court)..

66

Id., at 9.

67

Id.

68

Id. at 11.

CRS-19
long and intensive struggle for religious freedom in America.”69 Indeed, so
instructive was Virginia’s example, the Court declared, that “the provisions of the
First Amendment ... had the same objective and were intended to provide the same
protection against governmental intrusion on religious liberty as the Virginia
statute.”70
As part of this emphasis, the Court also stressed the importance of the views of
James Madison and Thomas Jefferson to the interpretation of the First Amendment.
Both had played leading roles in disestablishing the Anglican church in Virginia:
Madison was the author of the “Memorial and Remonstrance Against Religious
Assessments” in 1784 that articulated numerous arguments against taxation for the
benefit of religious institutions; and Jefferson was the author of the “Virginia Bill
for Religious Liberty” that ultimately was enacted in 1785.71 Madison also was a
primary architect of the Bill of Rights in the First Congress. Indeed, so central was
his role in the latter process, one Justice said, that the establishment clause “is the
compact and exact summation of its author’s views formed during his long struggle
for religious freedom”72:
All the great instruments of the Virginia struggle for religious liberty thus
became warp and woof of our constitutional tradition, not simply by the course
of history, but by the common unifying force of Madison’s life, thought and
sponsorship. He epitomized the whole of that tradition in the Amendment’s
compact, but nonetheless comprehensive, phrasing.73

This history and the debates in the First Congress on what became the First
Amendment, the Court said, showed that the establishment clause was intended to
do more than prohibit direct government compulsion or coercion in matters of
religion. It identified two broad purposes underlying the clause:
Its first and most immediate purpose rested on the belief that a union of
government and religion tends to destroy government and to degrade religion.
The history of governmentally established religion, both in England and in this
country, showed that whenever government had allied itself with one particular
form of religion, the inevitable result had been that it had incurred the hatred,
disrespect and even contempt of those who held contrary beliefs. That same
history showed that many people had lost their respect for any religion that had
relied upon the support of government to spread its faith. The Establishment
Clause thus stands as an expression of principle on the part of the Founders of
our Constitution that religion is too personal, too sacred, too holy, to permit its
“unhallowed perversion” by a civil magistrate.

69

McGowan v. Maryland, 366 U.S. 420, 437 (1961).

70

Id. at 13.

71

Id.; Engel v. Vitale, 370 U.S. 421, 427-28 (1962). See also McGowan v. Maryland, 366
U.S. 420, 437-440 (1961).
72

Everson v. Board of Education, 330 U.S. at 31 (Rutledge, J., dissenting).

73

Id. at 39.

CRS-20
Another purpose of the Establishment Clause rested upon an awareness of the
historical fact that governmentally established religions and religious
persecutions go hand in hand .... It was in large part to get completely away from
this sort of systematic religious persecution that the Founders brought into being
our Nation, our Constitution, and our Bill of Rights with its prohibition against
any governmental establishment of religion.74

Thus, the Court concluded that the establishment clause, “in its final form, did not
simply bar a congressional enactment establishing a church; it forbade all laws
respecting an establishment of religion .... [T]he First and Fourteenth Amendment
afford protection against religious establishment far more extensive than merely to
forbid a national or state church.”75 In the classic statement of the separationist
understanding, Justice Black stated for the Court:
The “establishment of religion” clause of the First Amendment means at least
this: Neither a state nor the Federal Government can set up a church. Neither
can pass laws which aid one religion, aid all religions, or prefer one religion over
another. Neither can force nor influence a person to go to or to remain away
from church against his will or force him to profess a belief or disbelief in any
religion. No person can be punished for entertaining or professing religious
beliefs or disbeliefs, for church attendance or non-attendance. No tax in any
amount, large or small, can be levied to support any religious activities or
institutions, whatever they may be called, or whatever form they may adopt to
teach or practice religion .... In the words of Jefferson, the clause against
establishment of religion by law was intended to erect “a wall of separation
between church and State.”76

Initially, every member of the Court joined in this separationist reading of the
historical underpinnings and consequent broad scope of the establishment clause.77

74

Engel v. Vitale, 370 U.S. at 431-33.

75

McGowan v. Maryland, supra, at 441-42.

76

Everson v. Board of Education, 330 U.S. at 15-16. Jefferson had created his “wall of
separation” metaphor in 1802. See n. 1.
77

Dissenting from the result but not the historical reasoning of the majority in Everson, 330
U.S. 1 (1947), Justice Rutledge asserted for himself and three other dissenters the following
understanding of the establishment clause:
Not simply an established church, but any law respecting an establishment of
religion is forbidden. ...The Amendment’s purpose was not to strike merely at the
official establishment of a single sect, creed or religion, outlawing only a formal
relation such as had prevailed in England and some of the colonies. Necessarily
it was to uproot all such relationships. But the object was broader than
separating church and state in this narrow sense. It was to create a complete and
permanent separation of the spheres of religious activity and civil authority by
comprehensively forbidding every form of public aid or support for religion.
330 U.S. at 31-32 (Rutledge, J., dissenting).

CRS-21
The tripartite Lemon test developed more slowly. Not until Abington School
District v. Schempp78 in 1963 did the Court first distill a test to help it ferret out
establishment clause violations. In that case it stated that to pass muster under the
clause governmental action had to have “a secular legislative purpose and a primary
effect that neither advances nor inhibits religion.”79 Subsequently, in Walz v. Tax
Commission of New York80 in 1970 the Court articulated a requirement that
government action not precipitate excessive entanglement between government and
religion. Finally, in Lemon v. Kurtzman81 in 1971 the tripartite test gained its full
articulation:
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 entanglement with religion.”

The Court further held that a statute or governmental action had to satisfy every
prong of the tripartite test in order to pass constitutional muster. Although often
stating that the test was merely a “guideline” or “signpost,” the Court used the test
in every establishment clause case but one between its inception and 199182; and after

78

374 U.S. 203 (1963).

79

Id. at 222.

80

397 U.S. 664 (1970).

81

403 U.S. 602, 612-13 (1971).

82

See Marsh v. Chambers, 463 U.S. 783 (1983) (upholding the constitutionality of
legislative prayers). Larson v. Valente, 456 U.S. 228 (1983) is also sometimes cited as a
case that did not use the Lemon standard, because the Court primarily relied on a strict
scrutiny test in striking down a charitable solicitations statute as religiously discriminatory.
But that contention is not wholly correct, because the Court also used the entanglement
prong of the tripartite test. In church-state cases subsequent to 1991 the Court has used (1)
a coercion test (see Lee v. Weisman, 505 U.S. 577 (1992) (holding the inclusion of prayers
by a clergyman in a public school commencement ceremony to be unconstitutional)) and
Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000) (holding student-led
prayers prior to school football games unconstitutional)) ; (2) a neutrality test (see Zobrest
v. Catalina Foothills School District, 509 U.S. 1 (1993) (upholding the provision of a sign
language interpreter to a deaf student attending a Catholic high school); Board of Education
of the Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994) (striking down
a state statute creating a special education school district for a single religious group);
Rosenberger v. The Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995)
(upholding the funding of a student religious publication out of a student activities fund);
and Good News Club v. Milford Central School, 533 U.S. 98 (2001) (upholding the right
of a religious club to meet on school property after school hours)); or (3) a modified version
of the Lemon test (see Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753
(1995) (using an endorsement version of the Lemon test in upholding the private display of
a cross at Christmastime in a public square in front of a State Capitol building); Agostini v.
Felton, 521 U.S. 203 (1997) (submerging the entanglement prong of the Lemon test into the
primary effect prong and construing primary effect to mean using religion as a criterion for
benefits or government engaging in religious indoctrination in upholding as constitutional
the provision by public school teachers of remedial educational services to sectarian
schoolchildren on the premises of the sectarian schools)); and Mitchell v. Helms, 530 U.S.
(continued...)

CRS-22
a lapse of several years, the Court has used it anew in several of its most recent
establishment clause decisions, albeit in modified form.83
(b) The Critique. Notwithstanding the initial unanimity of the Court’s
historical analysis and its almost unfailing recourse to the tripartite test, every aspect
of the separationist understanding of the establishment clause has come under
persistent criticism. Indeed, the Court’s interpretation of history and use of
Jefferson’s phrase “wall of separation” as a metaphor for the establishment clause
was criticized by Justice Reed as early as 1948,84 and Justice White raised questions
about the excessive entanglement prong of the tripartite test in the very case in which
the test was first fully articulated.85 But during the 1980s criticism of the history
relied upon by the Court, the “wall of separation” metaphor, the tripartite test, and the
Court’s understanding of the original intent of the establishment clause crescendoed.
During this time Chief Justices Burger and Rehnquist and Justices White, Kennedy,
and Thomas all attacked the historical justifications for a separationist construction
of the establishment clause. The tripartite test, in turn, was attacked in part or in
whole by Chief Justice Rehnquist and Justices White, O’Connor, Scalia, Kennedy,
and Thomas.
The critiques have been voiced in both majority decisions and concurring and
dissenting opinions. In 1983 in Marsh v. Chambers,86 for instance, a majority of the
Court emphasized other aspects of American history in upholding as constitutional
the practice of legislatures opening their daily sessions with prayer by a paid
chaplain, 6-3. Chief Justice Burger, writing for the Court, ignored the history of
religious conflict in Europe and the colonies and stressed instead the ubiquity of the
practice of legislative prayer from colonial times forward. He also cited as critically
important the fact that the First Congress authorized the appointment of paid
chaplains for itself within three days of agreeing on the language of the Bill of Rights
and that James Madison served on the House committee to decide how chaplains
should be chosen and voted for the bill authorizing the payment of the chaplains.
Eschewing any reference to, or use of, the tripartite Lemon test in deciding the case,
the Chief Justice concluded that legislative prayer “has become part of the fabric of
our society ... [and] is simply a tolerable acknowledgment of beliefs widely held
among the people of this country.”87

82

(...continued)
793 (2000) (the Agostini modification used in upholding program providing instructional
materials and equipment to sectarian schools).
83

Agostini v. Felton, 521 U.S. 203 (1997); Mitchell v. Helms, 530 U.S. 793 (2000); and
Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).
84

McCollum v. Board of Education, 333 U.S. 203, 244-48 (1948) (Reed, J., dissenting). Of
the “wall of separation” metaphor, Justice Reed said that “[a] rule of law should not be
drawn from a figure of speech.” Id. at 247.
85

Lemon v. Kurtzman, 403 U.S. at 661-671 (White, J., dissenting).

86

463 U.S. 783 (1983).

87

Marsh v. Chambers, 463 U.S. at 792.

CRS-23
One year later in Lynch v. Donnelly88 a narrower majority of the Court expanded
on that accommodationist emphasis in upholding a city’s inclusion of a creche in a
Christmas display that included such other items as a Santa Claus house, reindeer,
Santa’s sleigh, colored lights, and a banner proclaiming “Season’s Greetings.” Chief
Justice Burger, again writing for the Court, this time used the tripartite test but
stressed that the Court was not “confined to any single test or criterion in this
sensitive area.”89 More significantly, the Chief Justice emphasized what he called
“an unbroken history of official acknowledgment by all three branches of government
of the role of religion in American life from at least 1789.”90 Official invocations of
Divine guidance, proclamations of days of thanksgiving and prayer, legislative
chaplains, the national motto “In God We Trust” on the nation’s currency, the phrase
“one nation under God” in the Pledge of Allegiance, the designation of Thanksgiving
and Christmas as national holidays, the invocation “God save the United States and
this Honorable Court” at the opening of judicial sessions, the display of religious
paintings in public art galleries — all illustrated the principle, the Chief Justice
asserted, that the Constitution does not require “complete separation of church and
state ... [but] affirmatively mandates accommodation ... of all religions, and forbids
hostility toward any.”91 The metaphor “wall of separation,” the Chief Justice stated,
fails to give “a wholly accurate description of the practical aspects of the relationship
that in fact exists between church and state.”92 The decision was 5-4.
Dissenting in Wallace v. Jaffree93 in 1985, Justice Rehnquist — soon to be
elevated to Chief Justice — authored the most searing and comprehensive critique
of the Court’s separationist construction of the establishment clause. He condemned
the Court’s use of Jefferson’s phrase “wall of separation” as a metaphor for the
establishment clause as “misleading,” “useless,” a “mischievous diversion,” and a
“metaphor based on bad history.”94 Jefferson, Justice Rehnquist noted, did not even
play a direct role in the adoption of the Bill of Rights, as he was in France at the time
as the American ambassador. Madison, he agreed, was “undoubtedly the most
important architect ... of the Bill of Rights”; but the records of the First Congress,
Justice Rehnquist claimed, demonstrated that Madison’s role in the drafting and
adoption of the language of the religion clauses was not that of “an advocate of
incorporating the Virginia Statute of Religious Liberty into the United States
Constitution” but of “an advocate of sensible legislative compromise.”95 Based on
the records of the debate, it is “indisputable,” Justice Rehnquist asserted, that

88

465 U.S. 668 (1984).

89

Id. at 679.

90

Id. at 674.

91

Id. at 673.

92

Id.

93

472 U.S. 38 (1985). Justice Rehnquist’s critique of the Court’s use of history was largely
informed by the analysis set forth in ROBERT L. CORD, SEPARATION OF CHURCH
AND STATE: HISTORICAL FACT AND CURRENT FICTION (1982).
94

Id. at 92, 107

95

Id. at 98.

CRS-24
Madison saw the establishment clause “as designed to prohibit the establishment of
a national religion, and perhaps to prevent discrimination among sects. He did not
see it as requiring neutrality on the part of government between religion and
irreligion.”96 The contrary view set forth by the Court in Everson v. Board of
Education, supra, he asserted, was “totally incorrect.”97
Justice Rehnquist further noted that the First Congress re-enacted the Northwest
Ordinance of 1787, which provided land grants in the designated territories for both
sectarian and public schools, and adopted a resolution calling on the President to
designate a “day of public thanksgiving and prayer.” Moreover, he said, in the
nineteenth century Congress routinely appropriated money to support sectarian Indian
education by religious organizations, and the eminent constitutional authorities
Joseph Story and Thomas Cooley both asserted that the religion clauses permitted
nondiscriminatory governmental assistance to religion. Agreeing with the
separationists’ view that “[t]he true meaning of the Establishment Clause can only
be seen in its history,”98 Justice Rehnquist, nonetheless, concluded that prior to the
Court’s modern attempts to construe the establishment clause the clause had a “wellaccepted meaning: it forbade establishment of a national religion, and forbade
preference among religious sects or denominations.... [It] did not require government
neutrality between religion and irreligion nor did it prohibit the Federal Government
from providing nondiscriminatory aid to religion.”99 The wall of separation
metaphor, he said, “should be frankly and explicitly abandoned.”100
With respect to the tripartite Lemon test, Justice Rehnquist charged that it “has
no basis in the history of the amendment it seeks to interpret, is difficult to apply, and
yields unprincipled results ....”101 The secular purpose prong, he said, “has proven
mercurial in application,”102 because it is not clear whether it prohibits all aid to
sectarian institutions or only that which is accompanied by a stated purpose to aid
religion. The entanglement prong, he asserted, had become “divorced” from its use
in a historical context in Walz and, when joined with the primary effect prong, had
created a “Catch-22" in school aid cases: the effect test required such government
aid to be “closely watched lest it be put to sectarian use,” but the entanglement test
rendered aid unconstitutional precisely because it is closely watched. Finally, he
claimed, the tripartite test “has caused this Court to fracture into unworkable plurality
opinions,” has yielded “unprincipled results,” and “has produced only consistent
unpredictability.”103

96

Id.

97

Id. at 99.

98

Id. at 113.

99

Id. at 106.

100

Id. at 107.

101

Id. at 112.

102

Id. at 108.

103

Id. at 110, 112.

CRS-25
Justice White, in a separate dissent in Wallace, expressed appreciation for
Justice Rehnquist’s explication of the history of the religion clauses and, as he had
even in the 1970s,104 called for “a basic reconsideration of our precedents.”105
In Edwards v. Aguillard106 in 1987, Justice Scalia, appointed to the Court in
1986, began to articulate what has become a steady drumbeat of derision about the
Court’s establishment clause jurisprudence. In that case the Court held
unconstitutional a Louisiana statute that mandated that creationism be taught along
with evolution in the public schools on the grounds the statute was intended to
endorse and promote a particular religious doctrine. Justice Scalia dissented from
that conclusion and termed the Court’s establishment clause jurisprudence
“embarrassing.”107 More particularly, he asserted that the Court’s application of the
purpose prong of the tripartite test had “made such a maze of the Establishment
Clause that even the most conscientious governmental officials can only guess what
motives will be held unconstitutional.” The purpose test, he charged, “exacerbates
the tension between the Free Exercise and Establishment Clauses, has no basis in the
language or history of the Amendment, and ... has wonderfully flexible
consequences.”108 More generally, he has “bemoaned the strange Establishment
Clause geometry of crooked lines and wavering shapes [Lemon’s] intermittent use
has produced,” and has likened the test to “some ghoul in a late-night horror movie
that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed
and buried ..., frightening the little children and ... attorneys ....”109
In 1989 in County of Allegheny v. American Civil Liberties Union, Greater
Pittsburgh Chapter110 Justice Kennedy, appointed to the Court in 1988, suggested
that “substantial revision of our Establishment Clause doctrine may be in order.”111
In that case the Court held unconstitutional the display of a creche by itself in a
county courthouse but found constitutional the display of a Christmas tree and a
menorah in front of a city-county building during the Christmas and Chanukah
seasons. Justice Kennedy argued in partial dissent that the Court’s holding with
respect to the creche display “reflects an unjustified hostility toward religion, a
hostility inconsistent with our history and our precedents.”112 “Government policies
of accommodation, acknowledgment, and support for religion,” he said, “are an

104

See, e.g., Committee for Public Education v. Nyquist, 413 U.S. 756, 813 (1973) (White,
J., dissenting).
105

Wallace v. Jaffree, 472 U.S. at 90-91 (White, J., dissenting).

106

482 U.S. 578 (1987).

107

Id. at 639 (Scalia, J., dissenting).

108

Id. at 640.

109

Lamb’s Chapel v. Center Moriches School District, 508 U.S. 384, 403 (1993) (Scalia, J.,
concurring in the judgment).

110

492 U.S. 573 (1989).

111

Id. at 655, 656 (Kennedy, J., concurring in part and dissenting in part).

112

Id. at 655.

CRS-26
accepted part of our political and cultural heritage.”113 Thus, he charged, any
interpretation of the establishment clause that invalidates “historical practices” and
“longstanding traditions” of government acknowledgment and accommodation of
religion can not be legitimate. The establishment clause, he said, ought to be
construed to mean only that “government may not coerce anyone to support or
participate in any religion or its exercise; and it may not, in the guise of avoiding
hostility or callous indifference, give direct benefits to religion in such a degree that
it in fact `establishes a [state] religion or religious faith, or tends to do so.’”114
Justice Thomas, in a concurring opinion in Rosenberger v. Rector and Visitors
of the University of Virginia115 took sharp issue with the separationist view that the
establishment clause bars nondiscriminatory assistance to religion. Terming the
Court’s establishment clause jurisprudence to be “in hopeless disarray,” he said that
Virginia’s controversy over assessments in 1785 and Madison’s “Memorial and
Remonstrance” had nothing to do with a subsidy available to both religious and
nonreligious entities. Instead, he contended, it concerned only the support of
ministers and teachers of religion. Thus, he argued, that incident, as well as
Madison’s actions in bringing about a Bill of Rights, cannot be used to support the
“extreme view that the government must discriminate against religious adherents by
excluding them from more generally available financial subsidies.”116 Moreover, he
asserted, government in the early years of the Republic provided a number of
supports for religion — Congress hired a chaplain; religious properties were
exempted from property taxes; the Northwest Ordinance of 1787 provided land
grants for the benefit of schools, many of which were sectarian; and copyright
protections included religious authors and publications. He concluded:
Thus, history provides an answer for the constitutional question posed by this
case .... [There is] no evidence that the Framers intended to disable religious
entities from participating on neutral terms in evenhanded government programs.
The evidence that does exist points in the opposite direction ....117

Finally, Justice Thomas in the Court’s most recent decision questioned whether
the establishment clause ought to be deemed fully incorporated in the due process
clause of the Fourteenth Amendment and, as a consequence, fully applicable to the
states.118 “In the context of the Establishment Clause,” he said, “it may well be that
state action should be evaluated on different terms than similar action by the Federal
Government.” “The federalism prerogatives of the States,” he suggested, ought to
be weighed in establishing the proper construction of the establishment clause.

113

Id. at 657.

114

Id. at 659, quoting Lynch v. Donnelly, supra, at 678.

115

515 U.S. 819, 852 (1995) (Thomas, J., concurring).

116

Id. at 857.

117

Id. at 863.

118

Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002) (Thomas, J., concurring).

CRS-27
(c) The Response. These criticisms of the Court’s broad interpretation of the
establishment clause, of course, have not gone without rejoinder. In further support
of the “wall of separation” construction, for instance, Justice Brennan cited the
historical facts that the Constitution broke with the common practice of the day in not
invoking the name of God, that Madison subsequently recanted his views regarding
the constitutionality of legislative chaplains and prayers, and that Presidents Jefferson
and Jackson refused on establishment clause grounds to proclaim national days of
thanksgiving or fasting.119 He also argued that the acts of the First Congress cannot
alone serve as an authoritative guide to the meaning of the establishment clause,
because the views of the states that ratified the Bill of Rights also have to be
considered.120 More generally, he argued that “to be truly faithful to the Framers,
`our use of the history of their time must limit itself to broad purposes, not specific
practices,’” lest their work be treated as “static and lifeless.”121
In addition, Justices Blackmun, O’Connor, Brennan, Marshall, and Stevens all
have stressed that the people of the United States are now religiously diverse and thus
that even if “in the early days of the Republic [the religion clauses] were understood
to protect only the diversity within Christianity ..., today they are recognized as
guaranteeing religious liberty and equality to `the infidel, the atheist, or the adherent
of a non-Christian faith such as Islam or Judaism.’”122
In response to the argument that the establishment clause was intended to allow
nondiscriminatory government assistance to religion, Justice Stevens, Brennan, and
Marshall have contended that the religious establishments in the six states still
retaining them at the time of the Bill of Rights were not limited to a single church but
were multiple in nature, i.e., public aid was provided on a nondiscriminatory basis
to all Christian churches or to all Protestant churches. Thus, they asserted, the
prohibition of the establishment clause was understood by its authors to preclude not
just a single established church but multiple establishments as well, i.e., it was
intended to prohibit nondiscriminatory aid to all religions.123 That intent, they
claimed, was clearly shown by the evolution in the wording of the religion clauses
during the House and Senate debates on Madison’s proposals in the First Congress.
Following his appointment to the Court in 1990, Justice Souter, joined by
Justices O’Connor and Stevens, argued this view as well. In a concurring opinion in
Lee v. Weisman, supra, Justice Souter examined in detail the debates of the First
Congress on what became the religion clauses and concluded:

119

Marsh v. Chambers, 465 U.S. at 807 (Brennan, J., dissenting).

120

Id. at 815-16.

121

Id. at 816, quoting Abington School District v. Schempp, 374 U.S. at 241 (Brennan, J.,
concurring).

122

See Wallace v. Jaffree, supra, at 52, and Allegheny County v. Greater Pittsburgh ACLU,
492 U.S. at 590.

123

Allegheny County v. Greater Pittsburgh ACLU, supra, at 646-47 (Stevens, J., concurring
in part and dissenting in part). In so doing Justice Stevens generally followed the historical
analysis set forth in LEONARD LEVY, THE ESTABLISHMENT CLAUSE: RELIGION
AND THE FIRST AMENDMENT (1986).

CRS-28
The House rejected the Select Committee’s version, which arguably ensured only
that “no religion” enjoyed an official preference over others, and deliberately
chose instead a prohibition extending to laws establishing “religion” in general.
The sequence of the Senate’s treatment of this House proposal, and the House’s
response to the Senate, confirm that the Framers meant the Establishment
Clause’s prohibition to encompass nonpreferential aid to religion .... What is
remarkable is that, unlike the earliest House drafts or the final Senate proposal,
the prevailing language is not limited to laws respecting an establishment of “a
religion,” “a national religion,” “one religious sect,” or specific “articles of faith.
The Framers repeatedly considered and deliberately rejected such narrow
language and instead extended their prohibition to state support for “religion” in
general.124

He concluded as well that the language of the establishment clause prohibits more
than just governmental coercion of religious belief or of support for religion. The
free exercise clause, he noted, also prohibits such coercion and, thus, “a literal
application of the coercion test would render the Establishment Clause a virtual
nullity.”125
Justice Blackmun in the opinion of the Court in Allegheny County v. ACLU,
Pittsburgh Chapter termed the charge of “hostility” to religion leveled against the
separationist construction of the establishment clause to be both “offensive” and
“absurd”:
Justice Kennedy apparently has misperceived a respect for religious pluralism,
a respect commanded by the Constitution, as hostility or indifference to religion.
No misperception could be more antithetical to the values embodied in the
Establishment Clause .... A secular state ... is not the same as an atheistic or
antireligious state. A secular state establishes neither atheism nor religion as its
official creed .... It follows directly from the Constitution’s proscription against
government affiliation with religious beliefs or institutions that there is no
orthodoxy on religious matters in the secular state.126

Thus, he asserted, denying government the power to display a creche on public
property at Christmastime “does not represent a hostility or indifference to religion
but, instead, the respect for religious diversity that the Constitution requires.”127 “The
Constitution,” he said, “mandates that the government remain secular, rather than
affiliate itself with religious beliefs or institutions, precisely in order to avoid
discriminating among citizens on the basis of their religious faiths.”128
More recently, in an opinion joined by Justices Stevens, Ginsburg, and Breyer,
Justice Souter in a dissenting opinion in Rosenberger v. The Rector and Visitors of
the University of Virginia recapitulated the separationist understanding of the

124

Lee v. Weisman, 505 U.S. at 609, 613-15 (Souter, J., concurring).

125

Id. at 618-26.

126

County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. at 610-11.

127

Id. at 613.

128

Id. at 610.

CRS-29
historical underpinnings of the establishment clause and reiterated as well the
authority of Madison and Jefferson on its meaning. In response to Justice Thomas’
interpretation of Madison’s views, he said that “nowhere in the Remonstrance ... did
Madison advance the view that Virginia should be able to provide financial support
for religion as part of a generally available subsidy program” and noted as well that
the outgrowth of the Remonstrance “was not such a bill [but Jefferson’] Bill for
Establishing Religious Freedom, which ... proscribed the use of tax dollars for
religious purposes.”129 Of the contention that the acts of Congress showed that the
establishment clause allows nondiscriminatory aid, Justice Souter rejoined that
“individual acts of Congress, especially when they are few and far between, scarcely
serve as an authoritative guide to the meaning of the Religion Clauses ... [and are] no
more dispositive than the Alien and Sedition Acts in interpreting the First
Amendment.”130
In the Court’s most recent decision, Justice Souter, joined by Justices Stevens,
Ginsburg, and Breyer, asserted that the no-aid construction of the establishment
clause first articulated in Everson serves three fundamental objectives.131 First, he
said, it protects freedom of conscience by ensuring that, in Jefferson’s words, no one
“shall be compelled to ... support any religious worship, place, or ministry
whatsoever.” Second, he said, it protects religion from the “corruption” of its
mission that can come in the wake of government regulation and its own eagerness
for more public funding. Third, he said, it protects society from the threat of conflict
along religious lines as sect competes against sect for limited public funds.
(d) Modifications of the Lemon Test. As noted above, much of the debate
about the meaning of the establishment clause has focused on the utility and
adequacy of the tripartite Lemon test. Nonetheless, that test continues to be the one
most often employed by the Court. But the debate has caused the Court to make
significant modifications in the tripartite test, and in a recent church-state decision
the Justices argued vigorously over whether neutrality ought to be the essential
meaning of the test. The following subsections detail the modifications in the test
and the recent contentions:
(1) Endorsement. Justice O’Connor, appointed to the Court in 1981,
authored a concurring opinion in Lynch v. Donnelly to suggest not a rejection but a
“clarification” of the Lemon test.132 The essential meaning of the establishment
clause, she asserted, is that it “prohibits government from making adherence to a
religion relevant in any way to a person’s standing in the political community.”
Thus, she said, the clause is violated when government becomes excessively
entangled with religious institutions, because that may threaten the independence of
such institutions, give favored institutions access to governmental powers or benefits
not fully available to nonadherents of the favored religion, and create “political

129

Rosenberger v. Rector and Board of Visitors of the University of Virginia, 515 U.S. 819,
869-71 (1995), n. 1 (Souter, J., dissenting).
130

Id. at 872, n. 2.

131

Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002) (Souter, J., dissenting).

132

Lynch v. Donnelly, 465 U.S. at 687 (O’Connor, J., concurring).

CRS-30
constituencies defined along religious lines.” More importantly, she said, the
establishment clause is violated by “government 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. Disapproval
sends the opposite message.133

Thus, the secular purpose prong of the tripartite test, she averred, should be construed
to ask whether “government’s actual purpose is to endorse or disapprove of
religion.”134 The primary effect prong, in turn, should be construed to ask “whether,
irrespective of purpose, the practice under review in fact conveys a message of
endorsement or disapproval.” The entanglement prong, she asserted, should be
limited to institutional entanglement, not political entanglement.
In County of Allegheny v. ACLU, Pittsburgh Chapter, supra, Justice Kennedy
termed Justice O’Connor’s endorsement test an “unwelcome addition to our tangled
Establishment Clause jurisprudence” and said it was “flawed in its fundamentals and
unworkable in practice.” The test, he charged, would invalidate “scores of traditional
practices recognizing the place religion holds in our culture,” would “trivialize
constitutional adjudication,” and would require the Court to “sit as a national
theology board” and decide “what every religious symbol means.”135 Justice Scalia
in Capitol Square Review and Advisory Board v. Pinette, supra, said that in the
context of the display of religious symbols the endorsement principle requires
officials to “guess” when they might be perceived to be advocating a religious
viewpoint and forces them “to weigh a host of imponderables.” The endorsement
test, he said, provides “no standard whatsoever” for determining when the
establishment clause is violated and creates a “minefield” for public officials.
Nonetheless, the Court has employed this revision of the Lemon test in several
cases.136
(2) Modification of the primary effect and entanglement criteria. The
Court still requires, apparently without dissent, that government programs and
actions benefiting religion serve a secular purpose. But in the context of public aid
programs benefiting sectarian institutions, it has significantly loosened the strictures

133

Id. at 688.

134

Id. at 690.

135

County of Allegheny v. ACLU, Pittsburgh Chapter, 492 U.S. at 3134 (Kennedy, J.,
concurring in part and dissenting in part).

136

See Wallace v. Jaffree, 472 U.S. 38 (1985); Grand Rapids School District v. Ball, 473
U.S. 373 (1985); County of Allegheny v. American Civil Liberties Union Greater Pittsburgh
Chapter, 492 U.S. 573 (1989); Capitol Square Review and Advisory Board v. Pinette, 515
U.S. 753 (1995); Mitchell v. Helms, 530 U.S. 793 (2002); Santa Fe Independent School
District v. Doe, 530 U.S. 290 (2000); and Zelman v. Simmons-Harris, 122 S.Ct. 2460
(2002).

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of both the primary effect and excessive entanglement prongs of the tripartite Lemon
test.
With respect to direct aid, the Court formerly construed the primary effect prong
to mean that such aid must be limited to secular use. Thus, a direct aid program
could founder on this aspect of the Lemon test if the aid was not limited to secular
use either by its nature or by statutory or regulatory constraint. In addition, a direct
aid program could be held unconstitutional if it flowed to institutions that the Court
deemed to be pervasively sectarian, i.e., entities whose religious and secular
functions were so “inextricably intertwined” that the aid could not be limited just to
secular use.137 As the Court summarized in one case:
Aid normally may be thought to have a primary effect of advancing religion
when it flows to an institution in which religion is so pervasive that a substantial
portion of its functions are subsumed in the religious mission or when it funds
a specifically religious activity in an otherwise substantially secular setting.138

Moreover, even if an aid program was limited to secular use, it could still
founder on the excessive entanglement test if it flowed to pervasively sectarian
institutions. In such institutions, the Court said, the government could not simply
assume that the limitation to secular use would be honored. Instead, it had to engage
in “a comprehensive, discriminating, and continuing ... surveillance” to ensure that
the limitation was observed. But, the Court held, “these prophylactic contacts will
involve excessive and enduring entanglement between state and church”139; and as
a consequence, it would hold the aid program to be unconstitutional.
In its recent decisions the Court has now modified both the primary effect and
excessive entanglement prongs of the tripartite test.140 In addition to the secular
purpose requirement, the Court now construes the criteria of whether public aid has
a primary effect of advancing religion to be
(a) whether the aid results in government indoctrination, (b) whether the aid
program defines its recipients by reference to religion, and (c) whether the aid
creates an excessive entanglement between government and religion.141

Most critically, the Court has abandoned the presumption that some religious entities
are so pervasively sectarian that most forms of direct public aid to them are
unconstitutional. It now presumes, absent proof to the contrary, that direct aid to
such entities will be used for the secular purposes intended.142 As a consequence, it
has also modified the assumption that government must engage in an excessively

137

Wolman v. Walter, 433 U.S. 229 (1977) and Bowen v. Kendrick, 487 U.S. 589 (1988).

138

Hunt v. McNair, 413 U.S. 734, 743 (1973).

139

Lemon v. Kurtzman, 403 U.S. 602, 619 (1971).

140

Agostini v. Felton, 521 U.S. 203 (1997).

141

Mitchell v. Helms, 530 U.S. 793, 845 (2000) (O’Connor, J., concurring).

142

Mitchell v. Helms, supra. Four Justices (Chief Justice Rehnquist and Justices Scalia,
Kennedy, and Thomas) would go even farther and allow public aid to be used for religious
purposes by the recipient institutions; but that is not yet the majority view.

CRS-32
entangling policing of such institutions’ use of direct aid. The Court still deems
some monitoring to be necessary, but it no longer views such monitoring to be
constitutionally fatal.143 Reflecting the diminished rigor of the entanglement test, the
Court, in the context of direct public aid to sectarian entities, has made the
entanglement test part of the primary effect test.144
In the context of voucher or other aid programs indirectly benefiting sectarian
schools, the Court has never used the full Lemon test. It has required such programs
to serve a secular purpose and not to have a primary effect of advancing religion. But
the critical inquiries on the primary effect test have been whether the vouchers or
other aid are distributed to the initial beneficiaries on a religiously neutral basis and
whether the initial beneficiaries have a genuinely independent choice about whether
to use the assistance at secular or religious schools.145 In its most recent decision the
Court continued to ask, as it also does for direct aid, whether there was any religious
bias in the initial distribution of the education vouchers; and it also examined
whether the parents receiving the vouchers had a “true private choice” between
secular and religious options in using the aid.146 But it significantly broadened the
choices deemed to be relevant. In evaluating whether the parents had a true private
choice, the Court held, all educational options open to them needed to be considered,
not just the private secular or religious schools where the vouchers themselves could
be used. Thus, it said, the range of choices available in the program before it
included not only the private schools but also enrollment in public schools, magnet
schools, and community schools and the option of receiving special tutoring
assistance. In short, the Court altered the “true private choice” criterion of the
primary effect test in such a way that most voucher programs ought to be able to
satisfy it.
(3) Neutrality as the governing principle. The concept of neutrality has
been a continuing component of the Court’s establishment clause jurisprudence. In
its first establishment clause decision of the modern era, the Court used a principle

143

Agostini v. Felton, supra, and Mitchell v. Helms, supra.

144

In Agostini v. Felton, supra, at 232-33, the Court stated:
...[T]he factors we use to assess whether an entanglement is “excessive” are similar to
the factors we use to examine “effect.” That is, to assess entanglement, we have
looked to “the character and purposes of the institutions that are benefited, the nature
of the aid that the State provides, and the resulting relationship between the
government and religious authority .... Similarly, we have assessed a law’s “effect”
by examining the character of the institutions benefited (e.g., whether the religious
institutions were “predominantly religious”) ... and the nature of the aid that the State
provided (e.g., whether it was neutral and nonideological) .... Thus, it is simplest to
recognize why entanglement is significant and treat it — as we did in Walz — as an
aspect of the inquiry into a statute’s effect.

145

Committee for Public Education v. Nyquist, 413 U.S. 756 (1973); Mueller v. Allen, 463
U.S. 388 (1983); Witters v. Washington Department of Social Services, 474 U.S. 481
(1986); Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993).

146

Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002).

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of neutrality to uphold a public subsidy of the costs of transporting children to and
from school, including parochial school, stating
[t]he First Amendment ... requires the state to be neutral in its relations with
groups of religious believers and non-believers; it does not require the state to be
their adversary.147

At times the test has been described by the Court as one of “benevolent neutrality”148
and at other times as one of “strict neutrality.”149 But the concept has often found
expression in the second prong of the Lemon test, which requires government action
affecting religion to have a primary effect that neither advances nor inhibits religion.
Thus, it has sometimes been used by the Court to uphold programs in which public
aid is made available on a religiously neutral basis, i.e., without regard to whether the
beneficiary is religious or nonreligious:
... [G]overnment programs that neutrally provide benefits to a broad class of
citizens defined without reference to religion are not readily subject to an
Establishment Clause challenge just because sectarian institutions may also
receive an attenuated benefit.”150

As noted in the preceding section, the concept of neutrality is an element of the
primary effect test for both direct and indirect aid programs.
In one of the Court’s recent decisions, however, a plurality of four Justices
argued that the Lemon test ought to be conceived almost entirely in neutrality terms
for programs directly aiding sectarian institutions. Justice Thomas, in a plurality
opinion in Mitchell v. Helms, supra, joined by Chief Justice Rehnquist and Justices
Scalia and Kennedy, argued that so long as an aid program is religiously neutral in
the manner in which it provides its benefits and the aid itself is secular in nature, the

147

Everson v. Board of Education, 330 U.S. 1, 18 (1947).

148

In upholding the tax exemption accorded property owned by religious and other nonprofit
organizations in Walz v. Tax Commission of New York, 397 U.S. 664, 669 (1970) the Court
asserted:
The general principle deducible from the First Amendment and all that has been
said by this Court is this: that we will not tolerate either governmentally
established religion or governmental interference with religion. Short of those
expressly proscribed governmental acts there is room for play in the joints
productive of a benevolent neutrality which will permit religious exercise to exist
without sponsorship and without interference.
149

In holding state sponsorship of Bible reading and unison prayer in the public schools
unconstitutional in Abington School District v. Schempp, 374 U.S. 203, 225 (1963), the
Court stated:
They are religious exercises, required by the States in violation of the command
of the First Amendment that the Government maintain strict neutrality, neither
aiding nor opposing religion.

150

Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993).

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program passes muster under the establishment clause even if the aid is subsequently
diverted by the recipient to religious use:
In distinguishing between indoctrination that is attributable to the State and
indoctrination that is not, we have consistently turned to the principle of
neutrality, upholding aid that is offered to a broad range of groups or persons
without regard to their religion. If the religious, irreligious, and areligious are
all alike eligible for governmental aid, no one would conclude that any
indoctrination that any particular recipient conducts has been done at the behest
of the government.151

But the other five Justices criticized this elevation of the neutrality test. Justice
O’Connor, joined by Justice Breyer, termed this use of neutrality “unprecedented,”
“expansive,” “in tension with our precedents,” and “unnecessary.” Neutrality, she
said, is “important” and “relevant” in determining whether an aid program advances
religion, but it is not alone “sufficient.” “[T]he plurality opinion,” she said,
“foreshadows the approval of direct monetary subsidies to religious organizations,
even when they use the money to advance their religious objectives.”
Justice Souter, in turn, joined by Justices Stevens and Ginsburg, argued that the
plurality’s use of neutrality had “manifold errors,” represented a “sharp break with
the Framers’ consistent understanding of establishment and this Court’s consistent
interpretive course,” and would “be the end of the principle of no aid to the
[sectarian] schools’ religious mission.” The plurality ignored the fact that neutrality
had been used in several different senses by the Court in the past, he said. It had been
used to describe (1) “the state of balance between government as ally and as
adversary to religion” required by the two religion clauses, (2) the nonreligious and
secular nature of the aid provided, and (3) evenhandedness in making aid available
to the religious and nonreligious alike. Using evenhandedness alone in determining
an aid program’s constitutionality, he said, disregarded the Court’s precedents and
would mean that “religious schools could be blessed with government funding as
massive as expenditures made for the benefit of their public school counterparts, and
religious missions would thrive on public money.”
Thus, for now at least, the concept of neutrality remains an essential element of
the Court’s determination of whether an establishment clause violation has occurred,
but it is not the only element.

151

Mitchell v. Helms, supra, at 10 (Thomas, J.). This contention is not wholly new, but in
Mitchell it was expressed with particular force. Then-Justice Rehnquist contended in
Wallace v. Jaffree, 472 U.S. 38, 106 (1985) (Rehnquist, J., dissenting) that the original
meaning of the establishment clause “forbade establishment of a national church, and
forbade preference among religious sects or denominations .... [I]t did not require
government neutrality between religion and irreligion nor did it prohibit the Federal
Government from providing nondiscriminatory aid to religion.” In this view religious
organizations should be eligible to participate in public aid programs without giving up their
religiosity.

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(e) Other establishment clause tests – coercion and tradition. As
noted, Lemon is no longer the sole test the Court uses.152 The Court has also, on one
occasion, proffered and used coercion as the touchstone of an establishment clause
violation. In Lee v. Weisman, supra, Justice Kennedy opined for the Court that “at
a minimum, the Constitution guarantees that government may not coerce anyone to
support or participate in religion or its exercise, or otherwise act in a way which
`establishes a [state] religion, or religious faith, or tends to do so.”153 In that case the
Court held that a high school’s inclusion of an invocation and benediction by a rabbi
in its commencement ceremony had the unconstitutional effect of coercing some
students into participating in a religious activity.
Justice O’Connor has criticized coercion as an exclusive test of an establishment
clause violation as failing “to take account of the numerous more subtle ways that
government can show favoritism to particular beliefs or convey a message of
disapproval to others” and thus as failing to “adequately protect the religious liberty
or respect the religious diversity of the members of our pluralistic political
community.” Moreover, she has said, to make coercion the touchstone of an
establishment clause violation “would make the Free Exercise Clause a
redundancy.”154 Justice Souter has made a similar criticism of the coercion test,
contending that it would make the establishment clause a “virtual nullity.”
Nonetheless, the Court has used the coercion test as a rule of decision in at least
two school prayer cases.155
Various Justices have also proffered the historicity and ubiquity of a given
practice as a test of its constitutionality. In Marsh v. Chambers,156 for instance, Chief
Justice Burger stated for the Court that the practice of a legislature hiring a chaplain
was constitutionally permissible in part because the practice was “deeply embedded
in the history and tradition of this country” and had become “part of the fabric of our
society.” Justice Kennedy, joined by Chief Justice Rehnquist and Justices White and
Scalia, contended in Allegheny County v. Greater Pittsburgh Chapter of the
American Civil Liberties Union157 that the display of a creche by itself in the county
courthouse ought to be permitted because “[g]overnment policies of accommodation,
acknowledgment, and support for religion are an accepted part of our political and
cultural heritage.” “The meaning of the [Establishment] Clause,” he said, “is to be
determined by reference to historical practices and understandings.” In Lee v.
152

In several decisions in the past decade the Court has eschewed use of the Lemon test
entirely. See Lee v. Weisman, 505 U.S. 577 (1992); Zobrest v. Catalina Foothills School
District, 509 U.S. 1 (1993); Board of Education of the Kiryas Joel Village School District
v. Grumet, 512 U.S. 687 (1994); and Rosenberger v. The Rector and Visitors of the
University of Virginia, 515 U.S. 819 (1995).

153

Quoting Lynch v. Donnelly, supra, at 678.

154

Id. at 3117 (O’Connor, J., concurring in part and concurring in the judgment).

155

Lee v. Weisman, supra, and Santa Fe Independent School District v. Doe, supra. In the
latter decision coercion was one of several bases for the Court’s decision.
156

463 U.S. 783, 786, 792 (1983).

157

492 U.S. 573, 657, 670 (1989) (Kennedy, J., dissenting).

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Weisman158 Justice Scalia, joined by Chief Justice Rehnquist and Justices White and
Thomas, argued that commencement prayer by a clergyman ought to allowed because
it was “a tradition that is as old as public school graduation ceremonies themselves
and ... a component of an even more longstanding American tradition of nonsectarian
prayer to God at public celebrations generally.”
As noted, the Court relied in part on this test in upholding the constitutionality
of a legislative chaplaincy in Marsh v. Chambers, supra.
(f) Conclusion. In sum, then, the period since 1980 has witnessed profound
discontent by a number of Justices with the historical justifications previously used
by the Court for its interpretation of the establishment clause, the “wall of separation”
metaphor, and the tripartite Lemon test. All of the Justices continue to agree that the
meaning and scope of the clause are informed by history, but they sharply disagree
on what history is most relevant.
The critique of the separationist understanding of the establishment clause has
had a substantial effect, albeit not one as sweeping as the alteration of the
interpretation of the free exercise clause. Since 1980 the Court has rendered a
number of decisions upholding government actions protecting or benefiting religion;
the metaphor “wall of separation” has not been used as a guiding principle in any
majority opinion by the Court159; the Lemon test has been modified, supplemented,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3A98-65. Public record. Not legal advice.