Jessica Gavrich, Constitutional Law: Judicial Oversights-Inconsistency in Supreme Court Establishment Clause Jurisprudence

58 Fla. L. Rev. 437 (2006) | | | |

TEXT :: Texas State Capitol grounds contain a display of seventeen monuments and twenty- one historical markers. Amidst the monuments, Texas state officials erected a six-foot high and three and one-half foot wide structure inscribed with the Ten Commandments. The State accepted the monument from the Fraternal Order of Eagles, a national civic organization. Forty years after the erection of the monument, Petitioner brought a 42 U.S.C. § 1983 action in the District Court for the Western District of Texas seeking a declaration that the monument violated the Establishment Clause of the First Amendment and an injunction for its removal. The district court ruled against the Petitioner and held that the monument did not contravene the Establishment Clause. Petitioner appealed to the United States Court of Appeals for the Fifth Circuit, which affirmed.

The United States Supreme Court affirmed and HELD that the monument did not contravene the Establishment Clause. Further, the Court determined that the test set forth in Lemon v. Kurtzman was not the proper test for deciding whether the monument violated the Establishment Clause. Instead, the plurality applied an alternative test consistent with the “history and tradition” test of Marsh v. Chambers.


Over the years, the Supreme Court has considered various Establishment Clause challenges, upholding some and invalidating others under the Establishment Clause. However, despite numerous opportunities to clarify its position, the Supreme Court has demonstrated remarkable inconsistency. The Court set forth the foundational Establishment Clause test in Lemon v. Kurtzman. In Lemon, the Court considered the validity of two state statutes providing state aid to church-related elementary and secondary schools. Under the first statute, the state provided a fifteen percent supplement of teachers’ salaries in nonpublic elementary schools. The other statute authorized state reimbursement to nonpublic schools of the cost of teacher salaries and instructional materials in secular subjects. To ensure separation between church and state, both statutes contained strict restrictions. The Rhode Island district court concluded that the Rhode Island statute violated the Establishment Clause because it promoted “excessive government entanglement.” In contrast, the Pennsylvania district court validated the Pennsylvania statute.

The Supreme Court reversed the Pennsylvania district court, affirmed the Rhode Island district court, and held that both statutes contravened the Establishment Clause. Garnering criteria from prior cases, the Court established a three-prong test for applying the Establishment Clause. First, the government action must have a secular purpose. Second, it must not advance or inhibit religion. Third, the government action must not promote “‘excessive government entanglement with religion.’” According to the Court, a state action is unconstitutional if it violates any of these three prongs.

In applying the first prong of the test, the Court showed deference to the stated legislative purposes and concluded that the legislatures did not intend to advance religion. The Court, however, invalidated the statutes under the third prong of the test, holding that the statutes involved excessive entanglement between government and religion. The Court held that despite the strict statutory restrictions designed to advance only secular education, the statutes impermissibly entangled church and state because religious instruction was “inevitably” linked with parochial education.

Twelve years later, the Supreme Court applied a modified version of the Lemon test in Lynch v. Donnelly. In Lynch, the question focused on the inclusion of a nativity scene, or creche, in a city’s Christmas display. Finding official sponsorship of religion and excessive entanglement, the district court permanently enjoined the inclusion of the nativity in the display, and the court of appeals affirmed.

The Supreme Court reversed, holding that the inclusion of the creche did not contravene the Establishment Clause. In its reasoning, the Court refused to confine itself to a single criterion or test. Instead, the majority examined the role of religion in American history, emphasizing the “unbroken history” of government acknowledgment of religion in American life. Rejecting an absolutist approach to applying the Establishment Clause, the Court focused on the constitutionality of the nativity in the context of the Christmas season. Ultimately, the Court applied a less stringent version of the Lemon test. Under the first prong of Lemon, the Court accepted the city’s stated purpose of depicting the origins of Christmas. Second, while recognizing that the nativity may confer some benefit on those of the Christian faith, the Court determined that the inclusion of the Christian symbol was passive and did not advance or inhibit religion. In making this determination, the Court noted that a law is not unconstitutional simply because the law indirectly or remotely advances religion. Finally, the majority held that there was no administrative entanglement and that political divisiveness alone cannot invalidate otherwise permissible conduct.

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