Establishment Clause Tests Generally

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As discussed in the prior essay, the Supreme Court’s Establishment Clause jurisprudence has changed over time, vacillating between separationist and accommodationist views.1 Due in part to these distinct views of the Religion Clauses, the Supreme Court has employed a variety of analyses to determine whether any given law violates the Establishment Clause, depending in part on the type of government support being challenged. And even where the Supreme Court has applied the same tests to similar types of government aid, the way those tests have been applied has shifted as either the separationist or the accommodationist mode of analysis has been ascendant. One opinion noted the Court’s “unwillingness to be confined to any single test or criterion in this sensitive area.” 2

For example, the Court has said a law that creates express denominational preferences is generally subject to a strict scrutiny analysis, and “must be invalidated unless it is justified by a compelling governmental interest” and “closely fitted to further that interest.” 3 Most laws, however, do not involve such express discrimination, and the Establishment Clause forbids more than just the “governmental preference of one religion over another.” 4 Accordingly, the Court historically adopted other tests to evaluate other types of laws.

The Court’s predominant approach to evaluating Establishment Clause challenges during much of the modern era was a tripartite analysis known as the Lemon test,5 although the Court used that test less frequently in the early 2000s6 and by 2022, said it had “long ago abandoned” that approach.7 Lemon v. Kurtzman's three-part test instructed courts that for a government action to be considered constitutional: (1) it “must have a secular legislative purpose” ; (2) “its principal or primary effect must be one that neither advances nor inhibits religion” ; and (3) it “must not foster ‘an excessive government entanglement with religion.’” 8 These factors were not exclusive to Lemon: the Court looked to purpose and effect prior to that decision,9 and continued to do so even in subsequent opinions that did not expressly cite Lemon.10

Since the adoption of Lemon there were questions about the degree to which each of its three factors was dispositive in particular cases. In an opinion issued the same day as Lemon, a plurality of the Court said standards in this area should “be viewed as guidelines,” citing the difficulty of adopting one test to govern all circumstances.11 The Court also employed variations on the Lemon test. For example, in Lynch v. Donnelly, issued in 1984, Justice Sandra Day O’Connor argued in a concurring opinion that in the first and second prongs of the Lemon test, the Court should ask whether a government action had “endorsed” religion.12 The Supreme Court as a whole sometimes used this endorsement test.13 Further, in a 1997 decision, the Supreme Court seemed to suggest a refinement of the last two prongs of the Lemon test, saying the Court uses “three primary criteria . . . to evaluate whether government aid has the effect of advancing religion:” looking to whether laws “result in governmental indoctrination; define [their] recipients by reference to religion; or create an excessive entanglement.” 14

Apart from the Lemon factors, the Supreme Court has sometimes evaluated Establishment Clause challenges by looking to whether the law is unduly coercive—particularly in the context of government-sponsored prayer.15 “Coercion” includes at least legal compulsion,16 but the Supreme Court has also held that “indirect coercive pressure” created by government support for “a particular religious belief” can run afoul of the Establishment Clause.17

Finally, the Supreme Court has sometimes reviewed laws by reference to historical traditions—and in a 2022 ruling, said this was the test courts should use “in place of Lemon and the endorsement test.” 18 In decisions since the mid-1900s, the Court’s Establishment Clause analysis has sometimes looked to the history of government regulation or accommodation of religion, and the responses to those government actions.19 In particular, some cases evaluating the constitutionality of government-sponsored prayer practices have looked to historical practice, in addition to the coercion analysis discussed above.20 Accordingly, the Supreme Court has ruled unconstitutional prayer practices that it believed were inconsistent with early understandings of the Establishment Clause,21 but upheld legislative prayer schemes that were consistent with long-standing historical practices.22

In 2022’s Kennedy v. Bremerton School District the Supreme Court said it had “abandoned Lemon and its endorsement test offshoot” in favor of “an analysis focused on original meaning and history.” 23 The Court said the shortcomings of Lemon's “'ambitiou[s],’ abstract, and ahistorical approach to the Establishment Clause” Lemon test were “apparent.” 24 Nonetheless, the Court did not expressly overrule Lemon or other precedent applying that test, leaving questions about how courts will apply those rulings in the future.25

The following essays provide more detail on the Supreme Court’s decisions interpreting the Establishment Clause, focusing primarily on explaining the different types of analyses the Court has employed over time. Following Supreme Court precedent, the essays discuss cases involving financial assistance and non-financial assistance to religion separately. Although the two types of cases have sometimes employed the same analyses—both applied the Lemon test in at least some instances—the application of those analyses has differed based on the factual circumstances.

1: Amdt1.3.2 Accommodationist and Separationist Theories of the Establishment Clause.
2: Lynch v. Donnelly, 465 U.S. 668, 679 (1984).
3: Larson v. Valente, 456 U.S. 228, 246–47 (1982). But see Trump v. Hawaii, No. 17-965, slip op. at 26, 30 (U.S. June 26, 2018) (concluding that although certain statements suggested the President intended to exclude Muslims from the country, the Court would apply the “circumscribed judicial inquiry [that governs] when the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen” ).
4: Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 216 (1963).
5: Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). See also, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 668 (2002) (O’Connor, J., concurring) (describing Lemon as “[a] central tool” in Establishment Clause analysis).
6: See, e.g., Am. Legion v. Am. Humanist Ass’n, No. 17-1717, slip op. at 20 (U.S. June 20, 2019) (listing cases in which the Court “expressly declined to apply the [Lemon] test or . . . simply ignored it” ).
7: Kennedy v. Bremerton Sch. Dist., No. 21-418, (U.S. June 27, 2022).
8: Lemon, 403 U.S. at 612–13 (quoting Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970)) (emphasis added).
9: See, e.g., Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222 (1963) ( “The test may be stated as follows: what are the purpose and the primary effect of the enactment?” ); Two Guys from Harrison-Allentown, Inc. v. McGinley, 366 U.S. 582, 598 (1961) (looking to a state law’s purpose and effect); Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 110, 115 (1952) (holding that a state law violated the “rule of separation between church and state,” concluding that the “purpose, meaning, and effect” of the law was to interfere in “a matter of ecclesiastical government” ); see also Walz, 397 U.S. at 674 ( “Determining that the [law’s] legislative purpose . . . is not aimed at establishing, sponsoring, or supporting religion does not end the inquiry . . . . We must also be sure that the end result—the effect—is not an excessive government entanglement with religion.” ).
10: See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 648–49 (2002) ( “The Establishment Clause . . . prevents a State from enacting laws that have the ‘purpose’ or ‘effect’ of advancing or inhibiting religion.” (quoting Agostini v. Felton, 521 U.S. 203, 222–23 (1997)); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 838–39 (1995) ( “[W]e must . . . inquire first into the purpose and object of the governmental action in question and then into the practical details of the program’s operation.” ).
11: Tilton v. Richardson, 403 U.S. 672, 678 (1971) (plurality opinion) ( “Constitutional adjudication does not lend itself to the absolutes of the physical sciences or mathematics. The standards should rather be viewed as guidelines with which to identify instances in which the objectives of the Religion Clauses have been impaired.” ). The Tilton plurality’s analysis nonetheless considered the same three factors named in Lemon. Id.
12: Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring).
13: See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 655 (2002); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 307–08 (2000); Wallace v. Jaffree, 472 U.S. 38, 56 (1985).
14: Agostini v. Felton, 521 U.S. 203, 234 (1997).
15: See, e.g., Lee v. Weisman, 505 U.S. 577, 587 (1992). Cf. Town of Greece v. Galloway, 572 U.S. 565, 587 (2014) (stating that the coercive effect of a “prayer opportunity . . . must be evaluated against the backdrop of historical practice” ).
16: Justice Clarence Thomas has argued that the Establishment Clause is violated only by legal coercion, Van Orden v. Perry, 545 U.S. 677, 693 (2005) (Thomas, J., concurring), effected “by force of law and threat of penalty,” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 49 (2004) (Thomas, J., concurring in the judgment) (quoting Lee, 505 U.S. at 640 (Scalia, J., dissenting)) (internal quotation marks omitted). See also Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 25 (U.S. June 27, 2022) ( “Members of this Court have sometimes disagreed on what exactly qualifies as impermissible coercion in light of the original meaning of the Establishment Clause.” ).
17: Engel v. Vitale, 370 U.S. 421, 431 (1962).
18: Bremerton Sch. Dist., No. 21-418, slip op. at 23.
19: See, e.g., Van Orden v. Perry, 545 U.S. 677, 688–92 (2005) (plurality opinion) (rejecting constitutional challenge to Ten Commandments display on the grounds of the Texas Capitol after reviewing the history and practice of “acknowledgments of the role played by the Ten Commandments in our Nation’s heritage” ); Walz v. Tax Comm’n, 397 U.S. 664, 675–80 (1970) (evaluating tax exemptions for religious properties in light of “an unbroken practice of according the exemption to churches, openly and by affirmative state action” ); Torcaso v. Watkins, 367 U.S. 488, 490–92, 496 (1961) (holding a state religious test for public office unconstitutional, after reviewing colonial opposition to such oaths); Everson v. Bd. of Educ., 330 U.S. 1, 8–14 (1947) (reviewing “the background and environment of the period in which that constitutional language [of the Establishment Clause] was fashioned and adopted” ).
20: See, e.g., Am. Legion v. Am. Humanist Ass’n, No. 17-1717, slip op. at 24–25 (U.S. June 20, 2019) (plurality opinion).
21: Engel, 370 U.S. at 424.
22: Town of Greece v. Galloway, 572 U.S. 565, 591–92 (2014); Marsh v. Chambers, 463 U.S. 783 (1983).
23: Bremerton Sch. Dist., , 24.
24: Id. at 22 (quoting Am. Legion, slip op. at 12, 13 (plurality opinion)).
25: Generally, lower courts must follow Supreme Court precedent that “has direct application in a case” even if the precedent “appears to rest on reasons rejected in some other line of decisions,” leaving to the Supreme Court “the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).