Additional Information on the Establishment Clause

© 1997, Institute of Government, The University of North Carolina at Chapel Hill

Historical foundations
The Supreme Court has in recent years engaged in a lively debate of the original meaning of the clause and there has also been considerable recent academic research on the origins and purpose of the Constitutional provisions on religion.[1] Justice Renquist[2] contends its original meaning was simply to prohibit the government from establishing a national religion or favoring one religion over another. Justice Souter,[3] joined by Justices Stevens and O’Connor, responded with a historical analysis supporting a reading of the Establishment Clause to prohibit even nonpreferential aid to religion. Justice Thomas[4] weighed in arguing in favor of neutral access by religious groups to government funding and programs.

Tests
The Supreme Court has struggled somewhat unsuccessfully for the past quarter century to set forth clear guidelines to determine whether the Establishment Clause had been violated. Much of this time the court has used the three part test set forth in 1971 by Chief Justice Burger in Lemon v. Kurtzman[5] as its analytic framework:

1. Does the statute have a secular legislative purpose?[6]
2. Is its principal or primary effect one that neither advances nor inhibits religion?
3. Does the statute foster an excessive entanglement with religion?

However, as Justice O’Connor has noted, it may be neither necessary, possible, or even desirable to fashion categorical rules that would resolve close questions regarding the Establishment Clause. She noted in that cases on the margins of the Establishment Clause are often best decided on the basis of careful judging of case specific facts rather than on categorical rules. "When bedrock principles collide, they test the limits of categorical obstinacy and expose the flaws and dangers of a Grand Unified Theory that may turn out to be neither grand nor unified."[7]

Applications
Numerous Supreme Court cases have addressed alleged Establishment Clause violations. Some of the key cases, grouped by topics, include:

Expenditure of tax dollars at parochial schools

• Agostini v. Felton, 65 U.S.L.W. 4524 (June 23, 1997) (upholding provision that sends public school teachers into parochial schools to provide remedial education);
• Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. ___ (1994) (invalidating creation of special public school district tailored to serve a Hasidic Jewish community as singling out a particular religious group for favorable treatment);
• Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993) (provision of sign language interpreter for child in parochial school does not violate Establishment Clause where the service is provided neutrally to all qualifying students in sectarian/non-sectarian, public or private school);
• Mueller v. Allen, 463 U.S. 388 (1983) (tax deduction for parochial schools valid);
• Lemon v. Kurtzman, 403 U.S. 602 (1971) (payment of teachers of secular subjects in parochial schools invalid); and
• Everson v. Board of Education, 330 U.S. 1 (1947) (reimbursement of transportation costs to public and parochial schools valid).

Use of school facilities by religious groups

• Rosenberger v. University of Virginia, 115 S.Ct. 2510 (1995) (viewpoint neutrality requires upholding allocation of student fees for publication by religious group as well as other student organizations);
• Lamb’s Chapel v. Center Moriches Union Free School District, 113 S. Ct. 2141 (1993) (upholding after hours use of school facilities by religious as well as other civic groups); and
• Widmar v. Vincent, 454 U.S. 263 (1981) (public university may not exclude religious groups from use of facilities made available to all other student groups).

Prayer in public schools

• Lee v. Weisman, 505 U.S. 577 (1992) (including clergy led prayers in graduation ceremonies invalid);
• Wallace v. Jaffree, 472 U.S. 38 (1985) (moment of silence for prayer invalid);
• Stone v. Graham, 449 U.S. 39 (1980) (mandatory posting of Ten Commandments invalid);
• Abington v. Schempp, 374 U.S. 203 (1963) (state sponsored Bible reading and recitation of Lord’s Prayer invalid);
• Engel v. Vitale, 370 U.S. 421 (1962) (daily reading of state composed non-denominational prayer invalid); and
• Illinois ex re. McCollum v. Board of Education, 333 U.S. 203 (1948) (invalidating "release time" for offering religious instruction in public schools.)

Erection of religious displays on public property

• Capitol Square Review and Advisory Board v. Pinette, 515 U.S. ___, 132 L.Ed.2d 650 (applying an "endorsement" test in upholding cross display by KKK on Ohio Capitol Square)
• Lynch v. Donnelly, 465 U.S. 668 (1984) (municipal display of nativity scene along with other secular holiday symbols valid).

Mandatory closing of businesses on Sundays.

• Braunfeld v. Brown, 366 U.S. 599 (1961) (upholding Sunday closing law).
• McGowan v. Maryland, 366 U.S. 420 (1961) (upholding Sunday closing law as having a legitimate secular purpose)

The North Carolina supreme court has also upheld Sunday closing laws against a claim that it aided in the establishment of Christianity and discriminated against those whose religions prescribed a different Sabbath or day of rest.[8]

1. See, e.g., Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915 (1992); Philip B. Kurland, The Origins of the Religion Clauses of the Constitution, 27 WM & MARY L. REV. 839 (1986); Douglas Laycock, ‘Nonpreferential’ Aid to Religion: A False Claim About Original Intent, 27 WM & MARY L. REV. 875 (1986); Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409 (1990).

2. Wallace v. Jaffree, 472 U.S. 38, 91-107 (1985) (dissenting opinion).

3. Lee v. Weisman 505 U.S. 577, ___ (1992) (concurring opinion).

4. Rosenberger v. University of Virginia, 132 L.Ed.2d 700, 730-37 (1995) (concurring opinion).

5. 403 U.S. 602, 612-13 (1971).

6. The Court explicitly noted that land use restrictions usually fall into this category. Id. at 612-14. In First Assembly of God v. City of Alexandria, 739 F.2d 942 (4th Cir. 1984), cert. denied, 469 U.S. 1019, the Fourth Circuit Court of Appeals held the conditions in a special use permit for a that limited enrollment in a church day school to pre-school through ninth grade and a required erection of a fence and a landscaped buffer between the school and the surrounding neighborhood had a strictly secular purpose and therefore did not violate the Establishment Clause.

7. Rosenberger v. University of Virginia, 132 L.Ed.2d 700, 730 (1995) (concurring opinion).

8. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970); Clark’s Greenville, Inc. v. West, 268 N.C. 527, 151 S.E.2d 5 (1966); State v. Smith, 265 N.C. 173, 143 S.E.2d 293 (1965); State v. McGee, 237 N.C. 633, 75 S.E.2d 783, appeal dismissed, 346 U.S. 802 (1953); State v. Weddington, 188 N.C. 643, 125 S.E. 257 (1924) (permissible to ban Sunday sale of Coca-Cola as part of meals that could be sold); State v. Medlin, 170 N.C. 682, 86 S.E. 597 (1915) (permissible to limit Sunday hours of sale of non-essential items in drug stores). The authorization for municipal Sunday closing ordinances continues as N.C.G.S. 160A-191. State law also mandates no alcohol sales before noon on Sundays. N.C.G.S. § 18B-1004(c).