The following is a transcript of " The Legal Lad's Quick and Dirty Tips for a More Lawful Life, " a podcast from QuickAndDirtyTips.com . The audio program is available via RSS feed here and at TheStreet.com's podcast home page .
Hello, and welcome to Legal Lad's Quick and Dirty Tips for a More Lawful Life. But first, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener. Today's episode is on the challenges brought under the Establishment Clause of the Constitution to religious displays on public property. In this episode, I will discuss the basic principles, and in the second episode, I will discuss how these principles apply to government holiday displays. The First Amendment to the United States Constitution provides in relevant part: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. ... The first part of the First Amendment is known as the Establishment Clause, the history of which is a little muddy. The First Amendment, and the entire Bill of Rights, was passed in 1789, following the Revolutionary War. We had just won our independence from the United Kingdom, a country that had, and still maintains, the Anglican Church as a state religion. Some scholars argue that the First Amendment was only passed as a means to prevent Congress from creating one national religion, and that the States could still create State religions in their discretion. Indeed, at the time the First Amendment was passed, several states actually had official religions. These scholars further urge that the Establishment Clause was intended to prohibit Congress from preferring religion over irreligion.
Other scholars argue that the First Amendment was passed as a means to prevent Congress from interfering with or endorsing religion in any way. These scholars rely on the fact that Congress rejected several versions of the First Amendment, which referred to "a national religion," "one religious sect," and specific "articles of faith." So, the Establishment Clause was originally intended not only to prevent Congress from preferring a single religion, but also to prevent Congress from preferring religion in any capacity. Today, religious symbols and words appear in the public sphere. Our currency contains the phrase "In God We Trust." The Ten Commandments appear on the Supreme Court itself. Congress opens each term with a prayer. The Supreme Court has held that each is constitutionally permissible and has decided many cases over the years whose basic question is whether the government's display of religious words or symbols impermissibly "establishes" religion. The Court has never adopted a single test to answer this question, which has allowed lower courts to use a variety of tests. Courts often use the "Lemon test," which is a three-part test derived from a Supreme Court case, Lemon v. Kurtzman. The Lemon test provides that, in order to withstand a challenge under the Establishment Clause, the religious display must have a secular purpose; its primary effect must neither advance nor inhibit religion; and it must not foster an excessive entanglement with religion. In Lemon, the Court struck down Pennsylvania and Rhode Island statutes that provided state funding directly to private religious schools.
Other courts have used a simpler and more permissive "endorsement test," under which a display of religious symbols on public property could successfully be challenged under the Establishment Clause only if a reasonable observer of the display in its particular context would perceive a message of governmental endorsement or sponsorship of religion. Still other courts have adopted a broad policy of religious accommodation and applied an even more permissive "coercion test," which only finds a violation of the Establishment Clause if the effect of the governmental action can be said to have the effect of coercing anyone to support, or participate in, any religion, or give a direct benefit to religion in such a degree that it tends to establish religion or religious faith. In Lee v. Weisman, the Court enjoined the Providence, Rhode Island public school system from offering a benediction to God at commencement ceremonies. These tests, and shifting majorities on the Court, have led to some seemingly inconsistent results. For example, the Supreme Court decided two cases in 2005, both involving displays of the Ten Commandments. In one case, the Court in a plurality opinion upheld a display of the Ten Commandments, which was among 17 monuments and 21 historical markers located on the grounds of the Texas State Capitol. It was located between the Capitol and Texas Supreme Court building, and was six feet high. Its primary content was the text of the Ten Commandments, but it also contained various symbols, and text noting that the monument had been donated by the Fraternal Order of Eagles. On the same day, the Court struck down a display of the Ten Commandments in Kentucky courthouses, despite the fact that they were displayed alongside the Magna Charta and the Declaration of Independence. The Court noted that the Ten Commandments were originally displayed on their own, and so the purpose of the display could only have been religious; the addition of the non-religious displays did not cure the display of its religious endorsement. As you can see, Establishment Clause jurisprudence is a little fuzzy.