A wide variety
laws are consistent with--and may have been enacted in part because
beliefs. Mere consistency with the religious beliefs of a
majority is not enough, of course, to render a law a violation of the
Clause. Were it otherwise, laws against murder or stealing would
be constitutionally suspect because such acts were among those
in the Ten Commandments. Laws against murder and stealing
are supported by strong secular justifications in addition to any
motivation behind them. On the other hand, a law prohibiting the
worship of any graven image, a violation of the Second Commandment,
clearly be a violation of the Establishment Clause because its
purpose and effect would be religious, not secular.
The difficult cases are those in which their was 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.
Den involved a challenged delegation of state legislative authority
to churches. Massachusetts law allowed churches (as well as
to veto liquor licenses for establishments within 500 feet of their
Voting 8 to 1, the Court struck down the Massachusetts law.
that a flat ban on locating taverns within 500 feet of churches and
might be constiutionally permissible, the Court saw danger in the
that churches might use their veto power to favor licenses for members
of their own congregations. The delegation of legislative power
churches was found to violate two prongs of the Lemon test,
the third (least often cited) prong: it excessively entwined religious
groups in the processes of government.
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)
Marsh v Chambers (1983)
Larkin v Grendel's Den (1984)
Presbyterian Church v Hull Church (1969)
Elk Grove Unified School Dis. v Newdow (2004)
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?