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.
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.
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
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.
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)
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?