The first 16 words of the First Amendment to the U.S. Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” protect the right of every person to practice religion in accordance with conscience and guard against creation of a sectarian state.
But the precise meaning of these words has been a matter of dispute from the beginning; they have produced more uncertainty, internal contradiction and changes of course than perhaps any other provision of the Constitution.
There is even disagreement over whether there is one religion clause or two. On the one hand, the 16 words form a single sentence, with the key word religion appearing only once. The same political forces — an alliance of evangelical dissenters (especially Baptists) and enlightenment thinkers (such as Thomas Jefferson) — demanded both provisions, and the two provisions may be seen as a single harmonious concept: protecting the freedom and independence of religion both from government restrictions and from government sponsorship and attendant control.
On the other hand, it is logically possible to have free exercise rights even when there is an established church; indeed, several states at the time of the founding had just that, as do some modern democratic nations such as Great Britain and Germany. The modern U.S. Supreme Court has generally interpreted each of the halves of the religion clause without reference to the other, even holding that the two parts are in “tension” with each other — the free exercise clause giving special protection to religion and the establishment clause prohibiting government action that benefits religion — with the Court required to draw the appropriate “balance” between these two countervailing principles.
What is establishment of religion?
In the years since the adoption of the First Amendment, we have almost forgotten what an establishment of religion really was. But at the time of the framing, the “church by law established” in Great Britain was a living memory for everyone (and a source of previous strife during the English Civil War).
Prior to the American Revolution, in 1776, eight of the 13 colonies, plus metropolitan New York, had official religious establishments. The laws creating an establishment fell into three categories.
First were the laws establishing, controlling and maintaining the Church of England. Under the Act of Supremacy, the British monarch was the supreme governor of the church, with the right to control and direct its doctrines. The Uniformity Acts required clergy to conform to a uniform set of Articles of Faith, liturgy (the Book of Common Prayer), and scripture (the Authorized, or “King James,” version of the Bible). Among the Articles of Faith was an affirmation that the king or queen of England is the highest authority under God and is owed full allegiance in all matters civil and ecclesiastical.
The Anglican colonies of America (the five southern states from Maryland to Georgia) had similar arrangements. Colonial legislatures passed their own Uniformity Acts, with varying degrees of toleration for dissenters. Virginia and Maryland were the most intolerant. At the eve of the Revolution, in 1774, James Madison decried the jailing of five or six Baptist ministers for the crime of preaching without a license. At the other extreme, the colony of Georgia welcomed not only Protestant dissenters but two Jewish congregations, one Sephardic and one Ashkenazi. Massachusetts, Connecticut and New Hampshire, being settled by Puritan dissenters at odds with the British religious establishment, could not enact Uniformity Acts. Those colonies adopted a localized form of establishment, where each town would choose its own minister and hence its own denomination (usually, though not always, of the Congregationalist persuasion). Both Anglican and New England colonial governments enacted laws compelling church attendance and requiring the payment of church taxes, and made land grants to churches.
Penal Laws punished those who practiced forbidden religions
The second category of laws — called the Penal Laws — imposed criminal punishments on practitioners of forbidden religions. In Britain the harshest penalties were prescribed for Roman Catholics and Puritans; in 17th-century America the leading targets were Quakers.
Four Quakers were hanged in the Massachusetts Bay colony for the effrontery of preaching Quaker doctrine after having twice previously been banished for the act. As late as 1777, John Jay (later the first chief justice of the United States) spearheaded a movement to bar Roman Catholics from civil rights, including property ownerships, in the state of New York. By the time of the American Revolution, the Penal Laws were seldom enforced in England or in the colonies, though they were vigorously enforced against Catholics in Ireland.
Test and Corporation Acts restricted public office to members of established church
The third category of laws were the Test and Corporation Acts, which limited state offices to persons who had recently taken communion in the established church and who forswore belief in the Catholic doctrine of transubstantiation, the doctrine that the elements of the Lord’s Supper actually became the body and blood of Christ.
Because the concept of state officers was broadly defined — including those in the profession of law, teaching or studying at Oxford University or Cambridge, and serving as a military officer — these provisions were effective incentives to adopt, or at least to feign, the religious practices of the established church. In America, well after the Revolution, public offices in as many as nine states were limited to those holding particular religious views: sometimes Christian, sometimes Protestant, sometimes any belief in a state of future rewards and punishments.
The U.S. Constitution prohibits the federal government from enacting any of the three categories of law. The “test act” clause of Article VI prohibits the equivalent of the Test and Corporation Acts. The free exercise clause prohibits penal laws. And the establishment clause prohibits the enactment of anything like the Uniformity Acts, with their attendant requirements of compulsory attendance or financial support of the established church.
American Revolution changed religious landscape
The American Revolution brought an abrupt change in the religious landscape. Because of the commitment of Anglican theology to submission to royal authority, many Church of England ministers found themselves in opposition to the new Patriot governments in their states, and often the target of assault by Patriot mobs. In every state where the Anglican Church had been established, it was disestablished.
By the end of the Revolution, the vast majority of Anglican ministers had been dismissed, often driven into exile, or had emigrated. Because ordination took place in England and required an oath of allegiance to the crown, they were not replaced. By contrast, the Congregationalist ministers of the New England establishment, who were Patriots without exception, emerged from the war with renewed prestige.
Constitutions of new states contained religious freedom clause
In the months following the Declaration of Independence, all but two of the newly independent states turned their attention to writing state constitutions based on the consent of the governed and setting forth a list of protected freedoms, called a bill of rights.
Every one of these contained some version of a free exercise clause — some referring to rights of “religion” or “worship” and some to freedom of “conscience.” The idea that all persons had an inalienable right to worship in accordance with their own consciences had become virtually universal in Revolutionary-era America.
The question of religious establishments was more controversial. Many Americans — among them George Washington, John Adams, John Marshall, and Patrick Henry — believed that republican government required a high degree of public virtue and that a system of religious establishments could serve this purpose. This conviction was often shared even by those who did not themselves adhere to Christian Protestant orthodoxy. For many, the rationale for establishment was not based on its spiritual truth but on its political utility in the formation of public-spirited citizens.
The three New England states of Massachusetts, Connecticut, and New Hampshire, plus Vermont, reformulated their colonial establishments on more liberal lines. (Rhode Island, which had been founded by Roger Williams, who had departed from Puritan beliefs, never had a religious establishment.) Towns would still vote on the local minister, who would conduct services in the traditional town church on the green, and everyone was required to pay a tax for the support of religious worship. But the free exercise of religion was guaranteed to everyone, and those who attended a non-established Protestant church (within certain limits) were permitted to direct their contributions to their own church. This may be called a “multiple” establishment, because public support extended to a variety of churches. It was also a “tolerant” establishment, because support for religion was coupled with freedom of religious practice outside the approved churches.
Versions of a multiple, tolerant establishment were debated in most of the other states. In Georgia and Maryland, such systems were enacted but never actually implemented. In other states they were debated but not enacted. The most famous such debate took place in Virginia, where Thomas Jefferson and James Madison, together with the Virginia Baptists, narrowly defeated Patrick Henry’s Bill for Establishing a Provision for Teachers of the Christian Religion. Madison’s anonymous petition against the bill — called the Memorial and Remonstrance Against Religious Assessments — is the most famous American document setting forth the arguments for the free exercise of religion and against its establishment.
First Congress debates religious clauses
Having promised during the ratification struggle to support the addition of a bill of rights to the Constitution, Madison led the effort in the First Congress for what became the first 10 amendments.
For the most part, the suggested amendments were uncontroversial restatements of familiar common law principles that had been developed by English and colonial judges. There were brief debates (less than five minutes) on the cruel and unusual punishments clause (Is it too vague?), on freedom of assembly (Is it too trivial and obvious to warrant mention?), and on various structural proposals that were not adopted. The House of Representatives tinkered with the wording of the protection against unreasonable searches and seizures. The only proposal that occasioned extended debate was the proposal for freedom of religion, including whether religious conscientious objectors should be exempted from compulsory militia service.
A select committee of the First Congress proposed that Article 1, section 9, be amended to insert a phrase stating that “no religion shall be established by law, nor shall the equal rights of conscience be infringed.” The First Congress kept sparse records (the Senate kept only a journal and did not permit a transcription of the debates), but it appears that the Senate engaged in the more fundamental discussion of the proposal.
The Senate debate evidently resolved three important issues then in dispute. First, the Senate confined the amendment to “religion”— defined in the Virginia Declaration of Rights as “the duty which we owe to our Creator, and the manner of discharging it”— in lieu of the potentially more compendious term “conscience.”
Second, Congress considered and rejected a proposed version of the establishment clause that would have prohibited only laws “establishing articles of faith or modes of worship.” If this clause had been enacted, the federal government would have been barred from passing something like a Uniformity Act but not from instituting a multiple establishment.
Third, the Senate considered and rejected a proposed version of the establishment clause that would have prohibited Congress from “establishing any particular denomination of religion in preference to another.” This, too, extended the bar to multiple establishments, even if they were non-preferential in character.
The debate in the House centered on questions of federalism. Some representatives, including one from Connecticut, which then had a multiple establishment, expressed concern that the proposal could enable the federal courts to strike down the states’ laws for the support of ministers and places of worship and thus be “extremely hurtful to the cause of religion.”
Madison responded that the purpose of the amendment was simply to prohibit a national establishment. The language ultimately adopted — that Congress pass no law “respecting an establishment of religion” — resolves this concern by prohibiting Congress both from establishing a religion and from interfering with any state establishment that may exist. So modified, the clause passed Congress on September 25, 1789, and was ratified on December 15, 1791.
Last state establishment clause was repealed in 1833
Thus, contrary to popular myth, the First Amendment did not disestablish religion in the states of the Union. Instead, it prevented the newly formed federal government from establishing religion or from interfering in the religious establishments of the states. Disestablishment came on a state-by-state basis over time and for a variety of local reasons. The last state establishment was repealed in 1833, in Massachusetts.
For more than 150 years after the founding, state bills of rights — not the First Amendment — were the only protections of religious liberty against state governments; thus, the Supreme Court did not apply the First Amendment when examining a Louisiana law in Permoli v. New Orleans (1845) that confined Roman Catholic funerals to a single chapel. By the time of adoption of the 14th Amendment in 1866, however, every state had adopted a policy of non-establishment, and some form of separation between church and state had come to be understood as essential to religious freedom. When the 14th Amendment, ratified in 1868, provided that “no state may make or enforce any law that shall abridge the privileges or immunities of citizens of the United States,” it was plausible to think that a freedom against established religion, along with the rest of the first eight amendments, was now protected against state governments as well as against congressional actions.
It was not until the U.S. Supreme Court decision in Cantwell v. Connecticut (1940), however, and 15 years after its decision in Gitlow v. New York recognizing that First Amendment freedoms of speech and press applied to the states, that the Supreme Court held that “the fundamental concept of liberty” embodied in the due process clause of the 14th Amendment also embraced the free exercise of religion — in other words, that the free exercise clause now applied to state and local governments as well as to the federal government. The Supreme Court held the establishment clause applicable to the states in Everson v. Board of Education (1947). Since then, acts by state and local governments as well as those of Congress have been required to meet the standards of the establishment and free exercise clauses.
Supreme Court considers polygamy, right of free exercise of religion
The principal disputed question under the free exercise clause is whether it protects all acts of religious exercise from government penalty (in the absence of a sufficiently powerful need for interference) or whether it solely prevents the government from singling out religious practices for special penalty or punishing conduct because of its religious nature. The issue was first raised in state courts in connection with state free exercise provisions. In the earliest reported decision in People v. Phillips (N.Y. 1813), a New York court held that a Catholic priest could not be compelled to testify about criminal conduct that he had learned of in the confessional, notwithstanding the general rule that all persons can be required to give evidence in court. Other state courts adopted a narrower interpretation.
The U.S. Supreme Court first addressed the question in the late 19th century, in the controversy over the polygamy practices of the Church of Jesus Christ of Latter-day Saints, the Mormons. After Congress banned the practice, church official George Reynolds argued in court that the free exercise clause required an exception to the polygamy ban for Mormons, for whom plural marriage was at the time a religious tenet.
In Reynolds v. United States (1879), the Supreme Court upheld the polygamy ban, finding that “[t]o permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Individuals could believe in polygamy, and perhaps because of the free speech clause of the First Amendment even advocate it, but governments retained the power to regulate religiously motivated actions that were contrary to law.
Court requires government to accommodate religious practices
In the mid-20th century the high court began to change its approach toward religiously motivated conduct and civil law, requiring the government to make broader accommodations to religious practice. In a host of decisions in the 1940s and 1950s, most of them involving Jehovah’s Witnesses, the court established free exercise of religion, along with freedom of speech, as a “preferred freedom” that could be restricted only on a strong showing by the government.
In Sherbert v. Verner (1963), the court held that a state unemployment agency must accommodate a Seventh-day Adventist who, because of religious prohibitions, could not work on Saturdays, his Sabbath. The court held that accommodation was required where a generally applicable law burdened religious practice absent a “compelling state interest.”
Court eases religious accommodation in 1990
The doctrine of constitutionally compelled accommodation was sharply curtailed in Employment Division, Department of Human Resources of Oregon v. Smith (1990). In Smith, the court upheld the denial of employment benefits to an individual who had been fired from his job for ingesting peyote, an illegal hallucinogenic drug used in the worship ceremonies of the Native American Church.
Justice Antonin Scalia wrote that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.” Justice Sandra Day O’Connor’s concurrence, joined by three other justices, called the new language “incompatible with our Nation’s fundamental commitment to individual religious liberty.”
Congress passes 1993 law for greater religious accommodation
In 1993, Congress passed the Religious Freedom Restoration Act, which was designed to force a broader interpretation of the free exercise clause, compelling both state and federal governments to make greater accommodations to religious practice.
The Supreme Court struck down the act in City of Boerne v. Flores (1997), as applied to the states, holding that Congress does not have the authority under section 5 of the 14th Amendment to alter the meaning of the free exercise clause. As indicated in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006), however, the Religious Freedom Restoration Act remains applicable to the federal government.
Although, under the Smith interpretation, the free exercise clause does not entitle religious individuals or institutions to exemption from generally applicable laws, the Supreme Court has held that legislatures may, consistent with the establishment clause, enact such exemptions.
In Cutter v. Wilkinson (2005), the court upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act of 2000, which prevents the government from burdening the religious exercise of a prison inmate unless the government has a compelling governmental interest and uses the least restrictive means possible. The court concluded that the act was not an establishment of religion because it alleviated burdens on religious exercise that had been created by the government itself, and it did so without burdening nonparticipants and without discriminating among different faiths.
Similarly in Burwell v. Hobby Lobby Stores, Inc. (2014), the court ruled that the Religious Freedom Restoration Act prevented the Department of Health and Human Services from requiring a closely held corporation whose owners opposed certain contraceptives on religious grounds from doing so.
Lemon Test helps determine when government action is ‘establishment’
Cases involving the establishment clause have been far more numerous, and often more controversial, than those involving the free exercise clause. The most fertile field for establishment clause litigation has been in the realm of education: the constitutionality of public assistance to schools sponsored by religious organizations and the constitutionality of prayer and other religious activities in public schools.
The Supreme Court laid out a general three-part test for determining whether government action is an “establishment” of religion in Lemon v. Kurtzman (1971). In order to be constitutional under the Lemon test, a statute must satisfy three conditions:
- It must have a secular legislative purpose,
- Its primary effect must neither advance nor inhibit religion, and
- It must not foster excessive government entanglement with religion. In Agostini v. Felton (1997), the Court folded the entanglement prong into the effects prong.
This test has been increasingly criticized, tweaked and ignored, especially in cases involving long-established historical practices See, for example, Marsh v. Chambers (1983), permitting state legislatures to hire chaplains to begin their sessions with prayer. Justice O’Connor often asked, when reviewing the cases, simply whether a practice makes non-believers feel like outsiders. On the other hand, Justice Clarence Thomas has observed that the establishment clause initially kept state religious establishments in place, and this indicates that states should have greater leeway than the national government on such matters.
Supreme Court refines boundaries in cases involving religious schools
In one of its earliest (pre-Lemon) cases concerning aid to religious schools, the Supreme Court addressed the constitutionality of a statute reimbursing parents — including parents of Catholic schoolchildren — for money used to bus their children to school.
In this case, Everson v. Board of Education (1947), the court upheld the funding, characterizing the expenditures as nothing more than “a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from school.”
Twenty years later, in Board of Education v. Allen (1968), the court similarly upheld the loan of free textbooks to schoolchildren in both public and nonpublic schools, including religious schools.
In 1971, for the first time, the Supreme Court held, in Lemon v. Kurtzman, that public aid to education in what it called “sectarian” schools is generally unconstitutional — either on the theory that aid to the religious functions of the schools would “advance” religion or that efforts to ensure that aid was not used for religious purposes would “entangle” the government with the religious institution.
For about 15 years, the court engaged in the hair-splitting task of applying the three-pronged Lemon test to different types of school funding. The court invalidated tuition grants and tax credits to parents of parochial schoolchildren, Committee for Public Education and Religious Liberty v. Nyquist (1973), but it later upheld programs allowing tax credits for all parents, including those of children attending parochial schools, Mueller v. Allen (1983). It struck down the use of public school teachers to provide remedial education in religious schools in Aguilar v. Felton (1985), but then it overruled itself twelve years later, Agostini v. Felton (1997). The court barred states from giving instructional materials to religious schools, in Meek v. Pittenger (1975), but it permitted the lending of textbooks in Mueller.
Court shifts to neutrality of religion in school funding cases
In the mid-1980s, the Supreme Court began to shift to an interpretation based on “indirection” and “neutrality.” The idea was that if families were provided with education assistance on a neutral basis and were free to apply that assistance to the school of their choice, without preference for religious over secular, such funding was permissible, even if many of the families chose parochial education.
Those decisions culminated in a decision, Zelman v. Simmons-Harris (2002), in which the Supreme Court ratified a system of school vouchers through which inner-city parents in Cleveland, Ohio, were given the wherewithal to send their children to private alternatives to a failing public school system. In the system under review, 96% of students participating in the voucher program were attending religious schools— although far more public money went to charter schools and ordinary public schools. The court wrote that the system passed constitutional muster because the “incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government.”
More recently, in Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), the Supreme Court ruled that Missouri could not exclude a parochial school from applying for a grant to upgrade its playground. Likewise, in Carson v. Makin (2022), the Supreme Court held that Maine could not withhold public support for families from rural districts where there were no public schools who sent their children to parochial schools. This was similar to the court’s ruling in Fulton v. City of Philadelphia (2021), which ruled that the city could not suspend aid to Catholic Social Services simply because it would not certify gay couples as foster parents, at least as long as other agencies were willing to do so.
Court grants wider latitude in funding other religious programs
While the Supreme Court wrestled with the finer points of grade school and high school funding, it allowed states a much freer hand in funding universities, permitting grants for the construction and repair of campus buildings in Tilton v. Richardson (1971).
Religious social service programs have also been given wider latitude than have elementary and secondary schools. In Bowen v. Kendrick (1988), the court upheld a law offering grants to organizations, including religious ones, for the purpose of combating teen pregnancy. The court held that the grants were impermissible only if the grantees were “pervasively sectarian” or if the grants were used to fund “specifically religious activities.”
Many of the court’s recent funding cases have involved activity that involves the exercise of religion and also of speech. In such cases, religious speakers have successfully invoked the principle that the government may not discriminate against speech on the basis of its content, and especially of its viewpoint.
In the most dramatic of these decisions, Rosenberger v. Rectors and Visitors of the University of Virginia (1995), the court held that when a public university was funding the printing costs of a wide variety of organizations, it must not exclude religious ones. The court rejected the claim that funding of a religious publication would violate the establishment clause.
School prayer can implicate First Amendment rights
Both religion clauses of the First Amendment are implicated when the government involves itself with school prayer. If a school compels participation in contravention of a student’s religious principles, the school may violate the free exercise clause. When school prayer brings about government participation in or endorsement of religion, it violates the establishment clause. But if a school forbids religious expression, it can violate both the free exercise clause and the free speech clause.
A 1942 West Virginia law ordered students to salute the American flag daily, on pain of expulsion. A Jehovah’s Witness named Walter Barnette sued on behalf of himself and his children, arguing that his religion forbade the practice of saluting any “graven images,” which include flags. The Supreme Court struck down the requirement in West Virginia State Board of Education v. Barnette (1943). At this time, the words “under God” had not yet been added to the Pledge of Allegiance.
Almost 20 years later, in Engel v. Vitale (1962), the court invalidated New York’s nondenominational Regents’ prayer, which was recited in all state classrooms each day. The prayer was voluntary, thus freed from the limitations of the free exercise clause, but the court held that the prayer “officially establishes the religious beliefs embodied” therein and therefore violated the establishment clause.
The court clarified its test the next year in a case involving Bible reading. The court wrote, in Abington School District v. Schempp (1963), that “to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.”
A “moment of silence” statute was struck down in Wallace v. Jaffree (1985) because the court found that it was motivated by a religious purpose: the return of prayer to public schools. Prayers at graduations and before football games, whether given by professional clergy or by students themselves, have also been invalidated.
Thus the court invalidated the practice of having a religious figure deliver an invocation at middle school graduations, in Lee v. Weisman (1992), and the practice of prayers announced over the loudspeakers at football games, in Santa Fe Independent School District v. Doe (2000).
Conversely, the Supreme Court has consistently ruled that voluntary, student-initiated prayer and other religious activity is permissible — even constitutionally protected — on public school premises. Widmar v. Vincent (1981) applied the rule to universities and Good News Club v. Milford Central School (2001) to elementary schools. In Kennedy v. Bremerton School District (2022), the court extended this right to a public-school football coach who prayed on the 50-yard line after each game.
Elements of school curricula, when they have religious purposes or overtones, have been held to violate the establishment clause. In 1968 the Supreme Court struck down Arkansas’s “anti-evolution” statute, which prevented schools from teaching “the theory or doctrine that humans ascended or descended from a lower order of animals.” The court wrote, in Epperson v. Arkansas (1968), that “there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of the doctrine as to the origin of man.”
Several states attempted to circumvent this ruling by using a point-counterpoint approach; a Louisiana law required that every time evolution was taught, “creation science” had to be taught as well. The Supreme Court struck down that statute as well, finding in Edwards v. Aguillard (1987) that it served no secular purpose.
The Supreme Court has yet to rule whether in-school recitation of the Pledge of Allegiance, which now includes the phrase “under God,” violates the establishment clause or whether the pledge is merely “ceremonial deism,” the phrase the court gives to religious invocations that are so common- place as to be stripped of religious meaning. In Elk Grove Unified School District v. Newdow (2004), the court dismissed a challenge to the recitation of the pledge on technical grounds, and it has not had occasion to revisit the issue since.
Government displays of religiosity may be upheld as ceremonial
The court has used the Lemon test to uphold less intrusive displays of religiosity outside of the school context, labeling them merely ceremonial. It invoked that rationale to uphold the opening of legislative sessions with prayer in Marsh, to justify the printing of “In God We Trust” on cur- rency, and, indeed, to explain how the Supreme Court itself can open each yearly session with the words “God save the United States and this honorable court.” In Town of Greece v. Galloway (2014), the court further allowed a town to invite clergy members to offer a pray before its meetings.
The debate has centered on what constitutes merely ceremonial religious displays, and what constitutes a true endorsement of religion. In Lynch v. Donnelly (1984), the court has held Christmas trees and Santa Claus figurines to be devoid of religious content, while a crèche (manger scene of Jesus’ birth) standing alone, is impermissibly religious. The court is concerned not only with what the religious display itself entails, but with what surrounds it. In County of Allegheny v. American Civil Liberties Union (1989), the court announced what has been jokingly referred to as the “three plastic animals” or “reindeer rule,” which held that religious displays can be sanitized by the accompanying presence of secular symbols. The court decided that a menorah erected in downtown Pittsburgh, Pennsylvania, did not constitute an establishment of religion, in part because it was situated next to a Christmas tree. It wrote that the result “of placing a menorah next to a Christmas tree is to create an ‘overall holiday setting’ rather than a religious endorsement.
Ten Commandments may be on government property for secular purpose
The government’s motivation for erecting the display can also be significant. The Supreme Court has held that statues or prints of the Ten Commandments are permissible on government property when motivated by a genuine secular purpose, such as the acknowledgment “of the role of religion in American life.” That secular purpose may not be “an apparent sham” or secondary to a religious purpose.
In a pair of 5-4 opinions released the same day, the high court ordered the removal of a display of the Ten Commandments when the justices found its motivation not to be genuinely secular, McCreary County v. American Civil Liberties Union (2005), but permitted one whose motivation they found to be genuinely rooted in civic education, Van Orden v. Perry (2005).
Religious crosses on government property challenged
One difficulty is that governmental actions designed to maintain proper separation between church and state may be interpreted as displaying animus against religion. Moreover, a religious symbol may take on wider meanings.
The symbol of the cross, in particular, is often used to honor war dead. In Salazar v. Buono (2010), a divided Supreme Court ruled that the government could transfer government land in the Mojave Desert to private parties rather than to have to demolish a cross that had been erected to honor individuals who had died during World War I. In American Legion v. American Humanist Association (2019), the Supreme Court further ruled that government upkeep of a cross in Bladensburg, Maryland, which was also designed to honor those who died during World War, I did not violate the establishment clause.
Much of the uncertainty in this field of constitutional law is caused by the seeming conflict between the court’s interpretation of the two religion clauses of the First Amendment.
If, as the school aid cases seemed to hold, the state was required to deny otherwise-available benefits to religiously affiliated institutions, this appeared to violate the free exercise principle that the government could not penalize activity on account of its religious character.
If, by contrast, the government may (and sometimes must) grant special accommodation to religious practice, not available to secular activity, this appears to violate the establishment clause principle that the government may not favor or advance religion. To make matters worse, when religious activity is also speech, application of a special rule under either a free exercise or an establishment rationale seems to violate the principle of viewpoint neutrality under the free speech clause. In recent years, the court has reduced, though not eliminated, the tension among these interpretations by holding that the free exercise clause does not require, but the establishment clause permits, accommodation of religion and that the establishment clause permits, but the free exercise clause does not require, neutral funding of religious activity.
This article was written by Michael W. McConnell in 2009 and updated in 2023 by John Vile.