Monica Vila, Constitutional Law: Thou Shalt Not Establish Religion

56 Fla. L. Rev. 819 (2004) | | | |

INTRODUCTION :: Appellant, the Chief Justice of the Alabama Supreme Court, erected a two-and- one-half ton monument of the Ten Commandments in the rotunda of the Alabama State Judicial Building. The monument, which Appellant installed to reflect the moral foundation of law, was also engraved with quotations from secular sources and adorned the rotunda along with two other displays. Appellees filed suit in the United States District Court for the Middle District of Alabama, Finding that Appellant’s purpose in displaying the monument was non-secular and that the monument’s primary effect was to advance religion, the district court concluded that Appellant’s actions were unconstitutional. The United States Court of Appeals for the Eleventh Circuit affirmed the district court’s decision and HELD that Appellant’s display violated the Establishment Clause of the First Amendment by purposely acknowledging the Judeo-Christian God and suggesting that the state endorsed Christianity.

The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” The language of the Establishment Clause, however, offers little guidance regarding its application. Accordingly, the Supreme Court has attempted to define the scope of the clause by employing several tests and standards.

In Lemon v. Kurtzman, the Supreme Court articulated a three-part test for determining whether government action violates the Establishment Clause. In Lemon, the Court considered whether from two states statutes providing state aid to church-related elementary schools were unconstitutional. The Rhode Island act authorized a fifteen-percent salary supplement to teachers of secular subjects in nonpublic schools. The Pennsylvania act authorized reimbursement to nonpublic schools for certain secular education services, including teachers’ salaries, textbooks, and instructional material. Both statutes contained restrictions to guarantee that secular and religious educational functions remained separate and to ensure that state financial aid supported only secular functions.


The Court analyzed the statutes under its newly formulated three-part test. To withstand constitutional scrutiny under the Establishment Clause, the statute first must have a secular purpose. Second, its primary effect must neither be to advance nor inhibit religion. Finally, it must not excessively entangle the government with religion.

The Court noted that the legislative intent of the statutes was not to advance religion but rather to enhance the quality of secular education in all schools. Nonetheless, the Court found that continuous state surveillance and policing was necessary to ensure compliance with the restrictions of the statutes. Because they fostered an intimate relationship between church and state, the statutes failed the third part of the test. Accordingly, the Court held that both statutes violated the Establishment Clause.

Despite the prevailing Establishment Clause test set forth in Lemon, in Marsh v. Chambers the Court declined to apply or address it, employing instead a historical analysis. In Marsh, the Court considered whether the Nebraska legislature’s practice of beginning each session with a prayer led by a state- employed chaplain was unconstitutional. Noting that such practice is “deeply embedded in the history and tradition of this country,” the Court provided a historical account of legislative prayer by paid chaplains. Because the draftsmen of the First Amendment also engaged in prayer in the First Congress, the Court reasoned, the Establishment Clause cannot be interpreted to find the challenged action unconstitutional.

According significant weight to the unbroken, two-hundred-year practice of legislative prayer, the Court explained that invoking divine guidance on a public lawmaking body is not an establishment of religion. Rather, the Court characterized the practice as a recognition of beliefs widely held by the people of this country. The Court thus held that Nebraska’s chaplaincy practice did not violate the Establishment Clause.

Subsequently, in Lynch v. Donnelly, the Court returned to the settled principles of Lemon, although it applied a relaxed version of the test. In Lynch, the Court considered whether the Establishment Clause prohibited a city from including a nativity scene in its annual Christmas display. In addition to the nativity scene, the display contained figures of Santa Claus and reindeer, a Christmas tree, carolers, and colored lights.

Before delving into Lemon’s three-part inquiry, however, the Court engaged in a historical analysis. The Court stated that “[t]here is an unbroken history of official acknowledgement by . . . [the] government of the role of religion in America[].”The Court further noted that the nativity scene represents a historic religious event which has been acknowledged in the Western World for twenty centuries and in this country for two centuries. The Court rejected the proposed interpretation of the Establishment Clause as requiring a “‘wall’ between church and state.”

Additionally, the Court characterized Lemon’s three-part test as merely “useful” in determining what constitutes permissible action under the Establishment Clause. In evaluating whether the display satisfied Lemon’s first part, the Court clarified that Lemon does not require an “exclusively secular” purpose. Rather, the Court noted that any secular purpose, such as celebrating the holiday and depicting the holiday’s origin, is sufficient under Lemon, regardless of the display’s religious nature. The Court then evaluated whether the display’s primary effect was to advance religion, concluding that the display had merely a remote and indirect effect on religion. Lastly, the Court determined that neither the content nor maintenance of the display engendered continuous contact with church authorities, and it thereby avoided excessive entanglement between government and religion. Finding that the display satisfied all three parts of the Lemon test, the Court upheld its constitutionality. However, the Court’s decision seemed to be based primarily on its historical analysis.

While the instant court addressed Marsh’s applicability to the instant case, it nonetheless applied the Lemon test in determining that Appellant’s action violated the Establishment Clause. Before proceeding with its analysis under Lemon, however, the court acknowledged that Lemon’s three-part test, although the prevailing doctrine, has received much criticism. The instant court first concluded that Appellant’s purpose in displaying the monument was not secular. Rejecting Appellant’s argument that the Ten Commandments as presented in the monument held purely secular relevance, While Appellant argued that the monument depicted the moral foundation of law, the court found it was ultimately an inherently religious monument, thereby failing the first part of the Lemon test.

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