Justice Hugo Black’s majority opinion in Everson v. Board of Education laying out the neutrality requirement that governments needed to comply with when it came to religion (that I summarized in part 3) basically said that the government had to be strictly neutral between religious sects and also between religion and non-religion. That latter requirement has been particularly difficult to implement without requiring the government to not have anything to do with religion at all and over time we have seen a steady weakening of the resolve to implement it.
The issue of how to interpret and enforce neutrality in particular situations (such as providing tax exemptions for religious institutions and personnel, prayer and Bible readings and religious instruction in public schools, the display of religious artifacts on government property, ceremonial prayer, support for parochial schools, etc.) now came to the fore. It became necessary to elucidate and clarify the neutrality requirement and subsequent court rulings have tried to provide guidelines for lower courts to follow, in the form of tests and reasoning that could be applied in each case.
Over time, three trends have emerged. One involved looking at ‘history and tradition’ on a case-by-case basis to see if a governmental action could lead to the establishment of a state church. The other was to set up doctrinal tests that could be used to see if any given governmental action met the neutrality requirements. The third was to duck the issue by saying that the case is not an Establishment Clause one but involves something else, like property rights. This picking and choosing has lent support to the suspicion that the court decides what result it wants to obtain and then picks the reasoning that will provide it.
In the first trend, the court argued that if a long-standing practice had not led to the establishment of a church by now, then it meant that it was unlikely to do so in the future and thus was compatible with the intent of the Establishment Clause, which was meant to prevent such an eventuality. This argument was usually invoked in cases involving long-standing practices whose overturning would radically change the status quo (like requiring that religious institutions be taxed) and in cases involving pro-forma expressions of religion (like ceremonial prayer, and invocations of ‘under God’ in the Pledge of Allegiance, ‘In God We Trust’ on the currency, and the like) that supporters were passionate about and would undoubtedly create an uproar if eliminated.
When it came to the second trend of setting doctrinal tests, a highly influential one was the so-called Lemon test from the 1971 case Lemon v. Kurtzman which said that to pass constitutional muster, any law must pass all three of the following tests:
First, the statute must have a secular legislative purpose (the ‘purpose’ prong).
Second, its principal or primary effect must be one that neither advances nor inhibits religion (the ‘effect’ prong).
Finally, the statute must not foster “an excessive government entanglement with religion.” (the ‘entanglement” prong).
Of course, even doctrinal tests require an examination of the history of each case. But the difference is that in this trend, history and tradition are used to help decide if the action passes the test whereas in the other trend, history and tradition reasoning was used as an end in itself.
So when it came to the purpose prong, it required looking closely at the legislative history of the statute and the words and actions of its proponents. If that record seemed to show intent on the part of the sponsors to advance a religious agenda, then it is ruled unconstitutional even if the actual wording of the statute is religiously neutral. As I show in my book God v. Darwin, the efforts of creationists and intelligent design advocates to carefully craft their religious views in purely nonreligious language in order to have their ideas taught in public school ran aground partly because the historical record showed that the proponents were clearly religiously motivated.
The effect prong is harder to adjudicate. How would you judge a priori whether some legislation has the effect of advancing or inhibiting religion until it is actually implemented and we can see what ensues? The effect prong seems to be one that can be used mainly in hindsight and we will see later how another test tried to overcome its deficiencies.
The entanglement prong looks at how much implementing the statute would get the government involved with the workings of religion, and it was one of the main arguments that was used in ruling in the 1970 case of Walz v. New York in favor of continuing the granting of tax exemptions for churches. The court argued that if the government started taxing religious organizations, it would require the government to get involved in detailed evaluations of the properties and financial books of religious organizations and thus entangle it more with religion than not taxing them at all. (See here for a more detailed discussion of the issues involved in this case.)
The court also argued that this was a long-standing practice dating from the earliest days that did not favor one particular church, and besides which had not led to the creation of a state church, which is what the Establishment Clause had sought to prevent.
One cannot help but get the feeling in reading the Walz opinion that the majority of the court was not desirous of creating a major upheaval by ruling that tax-exemptions for churches were unconstitutional, so they started with the desired outcome and then sought ways to justify it, and the ‘history and tradition’ reasoning was the one that worked best. This ad hoc approach seems to be at play in cases involving legislative and ceremonial prayer too, such as in Marsh. In fact, Walz and Marsh can be seen as exemplars of the court using ‘history and tradition’ to justify a long-standing practice, as opposed to the other trend of applying some sort of constitutional principles as tests and using history and tradition as input to arrive at the decision.
The Lemon case was with respect to legislation. What about government actions such as ceremonial prayer or religious displays on public property that are not legislative in nature? In the next post, we will look at another doctrinal test, that of endorsement, that tried to meet some of the shortcomings of Lemon.