The Law of Church and State: General Principles and Current Interpretations

The Law of Church and State: General

Principles and Current Interpretations

Cynthia Brougher

Legislative Attorney

June 2, 2010

Congressional Research Service

7-....

www.crs.gov

RS22833

CRS Report for Congress

Prepared for Members and Committees of Congress

The Law of Church and State: General Principles and Current Interpretations

Summary

The First Amendment of the U.S. Constitution prohibits the government from establishing a

religion and guarantees citizens the right to freely exercise their religion. The U.S. Supreme Court

has clarified the scope of these broad guarantees. This report provides an overview of the

governing principles of the law of church and state. It explains the legal requirements for

challenges under the Establishment Clause and Free Exercise Clause and the standards used to

evaluate such challenges. The report includes current interpretations of these clauses and

summarizes related statutes (P.L. 103-141, the Religious Freedom Restoration Act, or RFRA, and

P.L. 106-274, the Religious Land Use and Institutionalized Persons Act, or RLUIPA).

Congressional Research Service

The Law of Church and State: General Principles and Current Interpretations

Contents

Threshold Issues: Standing to Challenge Government Actions.....................................................1

Establishment Clause ..................................................................................................................2

Tests Used.............................................................................................................................2

Regulation of Religious Speech.............................................................................................3

Access to Public Facilities for Religious Purposes .................................................................3

Public Display of Religious Symbols ....................................................................................3

Religion in School Settings ...................................................................................................4

Government Aid to Religious Organizations..........................................................................4

Free Exercise Clause...................................................................................................................5

Constitutional Requirements .................................................................................................5

Statutory Requirements ......................................................................................................... 5

Contacts

Author Contact Information ........................................................................................................6

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The Law of Church and State: General Principles and Current Interpretations

T

he First Amendment of the U.S. Constitution prohibits the government from establishing a

religion and guarantees citizens the right to freely exercise their religion. The U.S.

Supreme Court has clarified the scope of these broad guarantees. This report provides an

overview of the governing principles of the law of church and state. It explains the legal

requirements for challenges under the Establishment Clause and Free Exercise Clause and the

standards used to evaluate such challenges. The report includes current interpretations of these

clauses and summarizes related statutes (P.L. 103-141, the Religious Freedom Restoration Act, or

RFRA, and P.L. 106-274, the Religious Land Use and Institutionalized Persons Act, or RLUIPA).

Threshold Issues: Standing to Challenge

Government Actions1

Alleged violations under the religion clauses must meet two threshold requirements: government

action and standing. In order to bring a claim to enforce rights provided by the religion clauses,

an individual must show that government action has interfered with those rights. In other words,

actions by private actors cannot violate the religion clauses.

The individual must also have standing. Cases brought under the religion clauses are governed by

general standing rules. Standing is the legal term used to indicate that the person has an

individualized interest that has actually been harmed under the law or by its application.2 For

instance, a person who has been barred by the government from attending religious services or

required by law to attend religious services would have standing because the individual has been

individually affected by the government’s action.

For some Establishment Clause cases, the Court has recognized special exceptions to the general

rules for standing.3 Generally, taxpayers do not have standing to sue the government on the

grounds that their tax money has been spent in a manner that they consider improper.4 The Court

has recognized an exception to this rule, known as the Flast exception. Under the Flast exception,

taxpayers may raise Establishment Clause challenges of actions taken by Congress under Article

I’s Taxing and Spending Clause. 5 The Court has maintained its narrow interpretation of this

exception, refusing to extend it to permit taxpayer lawsuits challenging executive actions or

taxpayer lawsuits challenging actions taken under powers other than taxing and spending.6

1

This report provides a brief summary of the law of church and state. For more detailed analysis of church-state cases,

see CRS Report 98-65, The Law of Church and State: Developments in the Supreme Court Since 1980, by (name red

acted), and CRS Report RL34223,

The Law of Church and State: U.S. Supreme Court Decisions Since 2002, by

Cynthia Brougher.

2

See Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472

(1982); Allen v. Wright, 468 U.S. 737, 751 (1984); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

3

These exceptions, the Court has explained, result because the Establishment Clause is a constitutional limit on the

government’s ability to act. According to the Court, the framers of the Constitution feared abuse of governmental

power that might result in favoring one religion over another. See Flast v. Cohen, 392 U.S. 83, 103-04 (1968). It is

difficult to imagine circumstances in which potential abuses of the Establishment Clause could be enforced without this

exception.

4

See Frothingham v. Mellon, 262 U.S. 447, 487-88 (1923).

5

See Flast v. Cohen, 392 U.S. 83, 105 (1968).

6

See Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982)

(refusing to allow a taxpayer challenge of government transfer of property to a sectarian institution without charge

(continued...)

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The Law of Church and State: General Principles and Current Interpretations

Establishment Clause

The Establishment Clause provides for separation of church and state, but advocates differ as to

the extent to which it requires such separation. Some argue that government and religion operate

best if each conducts its business independently of the other. Others argue that the drafters of the

Constitution did not intend strict separation, and strict separation has not been practiced

throughout American history. 7

Tests Used

The primary test used to evaluate claims under the Establishment Clause is known as the tripartite

test, often referred to as the Lemon test. Under this test, a law (1) must have a secular purpose, (2)

must have a primary effect that neither advances nor inhibits religion, and (3) must not lead to

excessive entanglement with religion.8 Although the Lemon test is the one commonly employed

by the Court, it has been criticized by some Justices who have applied the test in different ways.

One application of the Lemon test focuses on whether the government has endorsed religion. The

government is prohibited “from making adherence to a religion relevant in any way to a person’s

standing in the political community.”9 This application of the Lemon test forbids “government

endorsement or disapproval of religion,” noting that “endorsement sends a message to

nonadherents that they are outsiders ... and an accompanying message to adherents that they are

insiders, favored members of the political community. Disapproval sends the opposite

message.”10

Another application of the Lemon test focuses on neutrality as the governing principle in

Establishment Clause challenges. Under this interpretation, the essential element in evaluating

challenges under the Lemon test is whether or not the government act is neutral between religions

and between religion and non-religion.11

In addition to the Lemon test, the Court has used two other tests to evaluate Establishment Clause

claims. The coercion test forbids the government from acting in a way that may coerce support or

participation in religious practices. This test is typically invoked in the school setting because of

the impressionability of those affected by possible acts of establishment.12 Another test permits

(...continued)

because the action was taken by an executive agency exercising power under the Property Clause); Hein v. Freedom

from Religion Foundation, 127 S. Ct. 2553 (2007) (refusing to allow a taxpayer challenge of activities of the White

House Office of Faith Based and Community Initiatives because the funding was made through discretionary executive

spending).

7

For more on interpretations of the Establishment Clause, see CRS Report 98-65, The Law of Church and State:

Developments in the Supreme Court Since 1980, by (name redacted).

8

Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). While the first two prongs of the test are self-explanatory, the

Court noted that the third prong prohibited “an intimate and continuing relationship” between government and religion

as a result of the law. Id. at 621-22.

9

Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring).

10

Id. at 688.

11

Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968).

12

See Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).

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The Law of Church and State: General Principles and Current Interpretations

government acts that involve religion if the Court finds that the religious element has played a

part in the history of the nation, or as the Court has phrased it, has become “part of the fabric of

our society.”13

Regulation of Religious Speech

When faced with issues regarding religious speech, the Court may also encounter free speech

claims under the First Amendment. As a general rule, the government may not limit religious

speech without a compelling reason or in a manner that is not viewpoint-neutral, but it may

impose reasonable time, place, and manner restrictions. 14 The Court has held that regulations that

broadly prohibit religious speech (e.g., prohibiting First Amendment activities in airports,

including a ban on distribution of religious literature, or requiring permits for all door-to-door

canvassing, including religious proselytizing) cannot be held constitutional. 15 The Court has also

held that privately donated monuments displayed in a public park are a form of government

speech and therefore are not limited by the First Amendment’s Free Speech Clause, but are

limited by other laws such as the Establishment Clause.16

Access to Public Facilities for Religious Purposes

The Court has held it unconstitutional to deny religious groups access to public facilities,

including public schools, if the same facilities are made available at similar times to nonreligious

groups.17 Such circumstances treat religious groups differently in a manner that suggests

disapproval of religion, in violation of the Establishment Clause. The Court interpreted this

requirement of equal access to include access to benefits offered by public institutions when it

required a public university to provide student activity funds to student groups regardless of the

religious content of the group’s activities.18

Public Display of Religious Symbols

The Court has applied a variety of tests in determining the constitutionality of religious displays

on public property, and its analysis in such cases is very fact-specific.19 Generally, the Court will

13

Marsh v. Chambers, 463 U.S. 783, 792 (1983).

14

The Court has developed the notion of the “public forum,” i.e., that certain sites are by their nature and history

particularly appropriate for speech activities. See Hague v. CIO, 307 U.S. 496, 515 (1939) (Roberts, J., concurring);

Schneider v. State, 308 U.S. 147 (1939). It also posited that not all public properties are public forums: “The crucial

question is whether the manner of expression is basically incompatible with the normal activity of a particular place at

a particular time.” Grayned v. City of Rockford, 408 U.S. 104, 116 (1972). In nonpublic fora, however, government

can impose regulations that are reasonable so long as the regulations are “not an effort to suppress expression merely

because public officials oppose the speaker’s view.” Perry Education Association v. Perry Local Educators’

Association, 460 U.S. 37, 46 (1983).

15

See Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987);

Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150 (2002).

16

See Pleasant Grove City, Utah v. Summum, 172 L. Ed. 2d 853 (2009).

17

See Widmar v. Vincent, 454 U.S. 263 (1981); Westside Community Board of Education v. Mergens, 496 U.S. 226

(1990); Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993); Good News Club v.

Milford Central School, 533 U.S. 98 (2001).

18

Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995).

19

For a more thorough legal analysis of the Court’s treatment of public displays of religious symbols, see CRS Report

(continued...)

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The Law of Church and State: General Principles and Current Interpretations

uphold displays that are set in a diversified religious context. For example, a display that included

Christian, Jewish, and nonreligious holiday elements at a government building has been held

constitutional, but a display of a Christian symbol by itself has been held unconstitutional.20 The

Court generally also will uphold religious displays that are given historical secular context. For

example, the Court has upheld a display of the Ten Commandments placed among dozens of

other secular historical monuments on the grounds of a state capitol for several decades, but held

a display that included the Ten Commandments among other religious items unconstitutional. 21

Religion in School Settings

The Court has addressed the issue of prayer in schools by holding school-sponsored religious

activities unconstitutional. The First Amendment prohibits the legislature, teachers, and school

districts from initiating prayer during the school day or at school-sponsored events.22 The Court

has also struck down mandatory moments of silence if those moments are required for the

purpose of voluntary prayer.23 It also has held mandatory displays of the Ten Commandments in

schools and prohibitions on teaching evolution to be unconstitutional. 24

Government Aid to Religious Organizations

The permissibility of government aid to religious organizations generally depends on the purpose

for which the aid is distributed and the manner in which it is distributed. 25 Generally, the

government may not provide direct aid to religious organizations that use the aid for religious

purposes, but the Court has allowed aid for non-religious purposes. The Supreme Court currently

interprets the Establishment Clause to permit public school teachers to provide remedial and

enrichment educational services to sectarian school children on the premises of the schools they

attend.26 It has held the use of federal funds to provide instructional materials and equipment to

public and private religious schools to be constitutional.27 The Court appears to have abandoned a

(...continued)

RS22223, Public Display of the Ten Commandments and Other Religious Symbols, by Cynthia Brougher. The Court

emphasized the fact-specific nature of these cases in its most recent decision related to public display of religious

symbols, which it remanded to the district court without a holding pertaining to the Establishment Clause issues in the

case. See Salazar v. Buono, No. 08-472 (U.S. Apr. 2010).

20

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

21

See Van Orden v. Perry, 545 U.S. 677 (2005); McCreary County v. American Civil Liberties Union of Kentucky,

545 U.S. 844 (2005). See also Lynch v. Donnelly, 465 U.S. 668 (1984).

22

See Treen v. Karen B., 455 U.S. 913 (1982), aff’g mem., 653 F.2d 897 (5th Cir. 1981); Wallace v. Jaffree, 472 U.S.

38 (1984); Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).

23

Wallace v. Jaffree, 472 U.S. 38 (1984).

24

See Stone v. Graham, 449 U.S. 39 (1980); Epperson v. Arkansas, 393 U.S. 97 (1968); Edwards v. Aguillard, 482

U.S. 578 (1987).

25

See CRS Report R40195, The Law of Church and State: Public Aid to Sectarian Schools, by Cynthia Brougher. The

constitutionality of government aid to religious organizations has been of particular interest to Congress since 1996,

when then-Senator John Ashcroft introduced Charitable Choice legislation that allowed religious organizations to

compete for federal funds in social programs. Under President Bush, the executive branch has continued the efforts that

began with this legislation under the Faith-Based Initiative. For more information on these issues, see CRS Report

R41099, Charitable Choice: Legal Issues Associated with Religious Organizations That Receive Public Funds, by

Cynthia Brougher.

26

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

27

Mitchell v. Helms, 530 U.S. 793 (2000).

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The Law of Church and State: General Principles and Current Interpretations

distinction it had previously recognized that prohibited public aid to “pervasively sectarian”

organizations, instead suggesting that the purpose of the aid and the types of programs that it was

used to fund are the critical factor in its analysis, not the type of organization that received and

administered the public funds.28

If government aid is distributed in an indirect manner, that is, if an individual uses funds received

from a federal agency to pay for some sectarian service, the Court has held the aid to be

constitutional when the distribution reflects the individual’s choice. 29 In other words, if the

individual can be seen as intervening in the chain of distribution, the aid is considered to be the

individual’s, rather than the government’s, thereby negating a threat of establishment. The Court

has upheld aid programs in which the aid was distributed to the initial recipients on a religionneutral basis and the initial recipients had a “genuine choice among options public and private,

secular and religious.”30

Free Exercise Clause

Constitutional Requirements

For much of the second half of the 20th century, the Court had held that religious interests were to

be considered of paramount importance in the constitutional scheme. Under this interpretation,

any government act that infringed on religious practices of citizens had to serve a compelling

state interest.31

In 1990, the Supreme Court significantly altered its interpretation of the Free Exercise Clause. It

abandoned the compelling state interest test (a strict scrutiny standard) with respect to neutral

statutes. The Court held that the Free Exercise Clause never “relieve[s] an individual of the

obligation to comply with a valid and neutral law of general applicability.”32 The constitutional

strict scrutiny standard was not abandoned entirely, though. It still applies to cases that involve

religious claims for exemption in programs allowing for individualized assessments and cases

that involve deliberate governmental targeting of religion.33

Statutory Requirements

A standard required by the Constitution is a baseline, which Congress may raise but can never

lower. In response to the Court’s reinterpretation of the standard necessary under the Free

Exercise Clause, Congress brought back the compelling interest test by statute. Congress sought

to broaden the legal protection afforded religious exercise with the Religious Freedom

Restoration Act (RFRA) of 1993,34 which prohibited government action that has the effect of

28

Id. at 826-29.

See Mueller v. Allen, 463 U.S. 388 (1983); Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

30

Zelman v. Simmons-Harris, 536 U.S. 639, 662 (2002).

31

Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).

32

Employment Div., Oregon Dep’t of Human Resources v. Smith, 494 U.S. 872, 879 (1990) (internal quotes omitted).

33

Id.

34

P.L. 103-141, 103rd Cong., 1st Sess. (November 16, 1993); 42 U.S.C. § 2000bb et seq.

29

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The Law of Church and State: General Principles and Current Interpretations

substantially burdening religious practice. 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 further

a compelling governmental interest and to be the least restrictive means of furthering that

interest.35 This statutory requirement for any law, including those of general applicability not

aimed at religious practice, would supplement the constitutional protection, which prohibits only

government action that intentionally burdens the exercise of religion.

RFRA, when originally passed, applied to federal, state, and local government actions. In 1997,

the Court held that, because of federalism, Congress lacked the constitutional power to impose

such a sweeping requirement on states and localities. 36 Therefore, the strict scrutiny standard

imposed by RFRA applies only to actions of the federal government. Congress responded to the

inapplicability of RFRA to state and local government by enacting the Religious Land Use and

Institutionalized Persons Act of 2000 (RLUIPA).37 To avoid the federalism problems presented by

RFRA, Congress limited the scope of RLUIPA’s application. RLUIPA applies only where the

burden could be linked to situations involving Congress’s spending power or commerce power, or

to situations involving land use in which individualized assessments are involved.38 Thus,

RLUIPA provides a statutory strict scrutiny test for 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. 39

Author Contact Information

Cynthia Brougher

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

35

P.L. 103-141, § 3; 107 Stat. 1488, 1488-89; 42 U.S.C. § 2000bb-1.

City of Boerne, Texas v. Flores, 521 U.S. 407 (1997).

37

P.L. 106-274, 106th Cong., 2nd Sess. (September 22, 2000); 114 Stat. 803; 42 U.S.C. §§ 2000cc et seq. See also CRS

Report RL32514, Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA): An Overview, by Cynthia

Brougher.

38

See id. at §§ 2(a)(2), 3(b).

39

P.L. 106-274, §§ 2-3; 114 Stat. 803, 803-04; 42 U.S.C. §§ 2000cc, 2000cc-1.

36

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