Evaluating Religiously-Based or Religiously-Motivated Laws
The issue: How should courts evaluate under the Establishment Clause laws and practices that are (at least in part) religiously motivated?

A wide variety of our laws are consistent with--and may have been enacted in part because of--religious beliefs.  Mere consistency with the religious beliefs of a legislative majority is not enough, of course, to render a law a violation of the Establishment Clause.  Were it otherwise, laws against murder or stealing would be constitutionally suspect because such acts were among those forbidden in the Ten Commandments.  Laws against murder and stealing obviously are supported by strong secular justifications in addition to any religious motivation behind them.  On the other hand, a law prohibiting the worship of any graven image, a violation of the Second Commandment, would clearly be a violation of the Establishment Clause because its predominant purpose and effect would be religious, not secular.

The United States, of course, is far from a classic theocracy.  It is not a nation, such as many in the Islamic world, that bases a large portion of its law on religious texts.  Laws such as those imposed in Taliban-controlled Afghanistan, where men were required to wear beards and women were not allowed to be seen in public without male relatives, and where the  possession of western music and videos was severely punished, and are not part of our history--nor are they likely to be anytime soon.  Still, the United States is a predominantly Christian nation and a number of our laws are rooted in Biblical text.  Difficult constitutional questions are presented by laws which have a strong religious purpose for enactment of a law or adoption of a governmental practice, but where the state can also assert some secular justification for the act in question.  McGowan v Maryland, considering the constitutionality of a state Sunday closing law, is such a case.  Clearly, the decision to require closing of certain commercial establishments on Sunday (rather than, say, Tuesday) had something to do with the Biblical admonition to "Remember the Sabbath and keep it holy."  But the Court found that the secular benefits of having a uniform day of rest, allowing the scheduling of community activities free from many work conflicts, predominated over any present day religious purposes or effects, and thus the Sunday closing law was constitutional.  The Eighth Circuit used a similar analysis in Clayton, upholding the Purdy, Missouri school district's ban on dancing, finding a secular purpose even when there was ample evidence that the no-dancing policy was maintained in response to pressure from conservative local church groups. 

Web author in front of Purdy, Missouri High School.  The school's ban on dancing was challenged
 as a violation of the Establishment Clause.

In Marsh v Chambers, the Supreme Court considered the constiutionality of Nebraska's practice of beginning each day in its state legislature with a non-denominational prayer.  In an opinion relying to an unusual degree on framer's intent, the Court upheld the practice, reasoning that the same First Congress that proposed the Bill of Rights also voted to hire a congressional chaplain and begin its legislative days with a prayer, and therefore could not have intended in the Establishment Clause to have prohibited legislative prayers.  Given what the majority saw as clear framer's intent, the Court refused to apply the Lemon test usually used in Establishment Clause cases.

Photo of the Nebraska's legislative chamber, where each legislative day is opened with a prayer.  The practice was challenged in Marsh v Chambers

Larkin v Grendel's Den involved a challenged delegation of state legislative authority to churches.  Massachusetts law allowed churches (as well as schools) to veto liquor licenses for establishments within 500 feet of their building.  Voting 8 to 1, the Court struck down the Massachusetts law.  Suggesting that a flat ban on locating taverns within 500 feet of churches and schools might be constiutionally permissible, the Court saw danger in the possibility that churches might use their veto power to favor licenses for members of their own congregations.  The delegation of legislative power to churches was found to violate two prongs of the Lemon test, including the third (least often cited) prong: it excessively entwined religious groups in the processes of government.

Web author visits Grendel's Den in 2014

Presbyterian Church v Hull Church (1969) can also be seen as a case of excessive entanglement, although at the time of the decision the Court was more inclined to see the state action as constituting a violation of the free exercise of religion.  In Presbyterian Church, a unanimous Court concluded that it violated the First Amendment for Georgia to apply a "departure-from-doctrine" test to determine whether a national church or local church was entitled to ownership of church property after the local church severed ties to the national church because of a theological dispute.  It was not appropriate, the Court said, for a jury or a reviewing court to try to determine which side in the dispute (involving such issues as ordination of women as ministers) strayed further from true Presbyterian teachings.  The dispute had to instead be decided using neutral principles of property law.

McGowan v. Maryland (1961)
Clayton v Place (1989)

Originalist Test Applied
Marsh v Chambers (1983)

Excessive Entanglement Prong of Lemon Test
Larkin v Grendel's Den (1984)
Presbyterian Church v Hull Church (1969)
1. Sunday closing laws have an especially severe impact on persons (such as orthodox Jews or Seventh Day Adventists) who, for religious reasons, feel compelled to close their retail establishments on Saturdays.  How should that fact be evaluated in McGowan?
2. If Seventh Day Adventists controlled a state legislature and repealed Sunday closing laws and enacted Saturday closing laws in their place, would we have a constitutional violation?
3.  In evaluating a law for evidence of a secular purpose, should we focus on the original purposes of the law, or all purposes that now support the law?
4. Purdy's no-dancing rule (involved in Clayton) was maintained because of pressure from conservative local ministers and religious groups.  Should that fact be sufficient to establish an establishment clause violation, or should the students and parents challenging the rule also have to establish that there are no significant secular justifications for the dancing ban? Doesn't the Eighth Circuit's decision in Clayton only make sense if it rejects the district court's finding that the Board's non-religious justifications (economic, educational, and moral) for the rule were "not credible"?
5.  If the Court in Marsh applied the Lemon test, would the practice of beginning legislative days with prayers be constitutional?  Do prayers serve the secular purpose of solemnizing legislators and making them think about ethical and public policy considerations that ought to guide their deliberations?
6.  What response is their to Justice Rehnquist's point in his dissent in Larkin that if churches use the Massachusetts zoning law to favor liquor licenses for members of their own congregations, the Court could step in at that time to find a violations of either the Equal Protection or Establishment Clause--but until that happens their is no justification for disturbing the law?
7.  Do all delegations of legislative power to private entities pose serious constiutional questions?
8.  What do you think of Justice Thomas's suggestion in Elk River that the Establishment Clause limits only the federal government?
9.  Do you think the four-factor test proposed for "ceremonial deism" by Justice O'Connor in Elk River is a good test?
10.  Do you think that the five-member majority in Elk River used standing to avoid reaching a politically unpopular decision?
The Strangeness of Antelope, Oregon, 1981-1985

Bhagwan Shree Rajneesh with his followers

Oregon v. Rajneeshpuram (D. Ore.)(1984)

In the United States, theocracy issues generally arise when a Christian majority uses its political power to enact legislation consistent with Christian teachings.  But theocracy issues may also arise when a local government is controlled by members of another major religion or even a religious cult.

From 1981 to 1985, for example, a religious cult exercised political power in Wasco County, in central Oregon.  A group calling themselves Rajneeshes, named after their spiritual leader Bhagwan Shree Rajneesh, moved into Antelope, Oregon (prior population of 40) and renamed the town Rajneesh.  Three times each day the Bhagwan would visit his followers: once in a morning meditation session and twice in drive-bys in one of his twenty Rolls Royces. 

The Antelope City Council was controlled by Rajneesh, wearing the red garb of the cult.  The Rajneesh used its political power to make sweeping changes in Antelope.  For example, traditional education was abandoned in favor of an "open classroom" format more consistent with Rajneesh values.  The police force became the Peace Force, with Peace Force members wearing red uniforms.  Local residents complained of being followed and harassed by Peace Force officers who, they alleged, were trying to drive all non-Rajneesh out of town.

The reign of the Rajneesh finally came to an end following relevations of numerous scandals and a crackdown by the INS. 

Does the story of the Rajneesh influence your thinking about how Establishment Clause cases ought to be evaluated?

AP Photo
On June 14, 2004, the Supreme Court decided the closely -watched appeal of a Ninth Circuit decision finding the addition of the words "under God" to Pledge of Allegiance to violate the Establishment Clause.
On a vote of 5-3, the Court in Elk Grove Unified School District v Newdow ruled that the non-custodial parent who brought the suit against the school district lacked standing to do so.  Three justices, in concurring opinions, indicated that they would have concluded on the merits that the Pledge law did not violate the Establishment Clause.  In an interesting opinion, Justice Thomas went so far as to say he  would find that the Establishment Clause was not incorporated through the Fourteenth Amendment, and therefore doesn't limit states at all!
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