Individual rights - Establishment

Learning Outcomes

This article explains Establishment Clause doctrine for the bar exam, including:

• Pinpointing when a government law, policy, funding program, or symbolic act constitutes an establishment of religion.
• Applying the Lemon test step-by-step—secular purpose, primary effect, and entanglement—to common MBE-style fact patterns.
• Distinguishing neutral treatment of religion from impermissible government endorsement, favoritism, or hostility, using the neutrality and endorsement tests.
• Evaluating direct and indirect government aid to religious schools or organizations, with emphasis on neutrality, private choice, and secular use limits.
• Assessing religious symbols, monuments, and holiday displays on public property by analyzing context, history, and a reasonable observer’s perception.
• Recognizing coercive religious practices in public schools and other captive-audience settings, even when participation is nominally voluntary.
• Identifying sect preference and triggers for strict scrutiny when government favors one denomination, or religion over nonreligion, on the exam.
• Spotting standing problems and the narrow taxpayer-standing exception frequently tested with Establishment Clause spending and aid challenges.
• Integrating Lemon, endorsement, neutrality, coercion, and historical-practice reasoning into clear, IRAC-style answers for multiple-choice and essay questions.

MBE Syllabus

For the MBE, you are required to understand the constitutional limits on government involvement with religion, with a focus on the following syllabus points:

• Recognize when government action constitutes an establishment of religion.
• Apply the Lemon test to statutes or policies involving religion.
• Distinguish between government action that is neutral and action that endorses or advances religion.
• Analyze the constitutionality of government aid to religious schools or organizations.
• Evaluate religious displays and symbols on public property.
• Understand special rules governing religious activities and prayer in public schools.
• Identify when strict scrutiny applies because the government favors a particular religion or religion over nonreligion.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A city funds playground resurfacing for all schools, including religious ones, without restrictions. Is this program likely constitutional under the Establishment Clause?
   1. No, because it provides direct aid to religious schools.
   2. Yes, if the program is neutral and the aid is for a secular purpose.
   3. No, because most funds go to religious schools.
   4. Yes, if the city monitors religious use of the playgrounds.
2. Which of the following is NOT a requirement under the Lemon test?
   1. The law must have a secular purpose.
   2. The law’s primary effect must neither advance nor inhibit religion.
   3. The law must avoid excessive government entanglement with religion.
   4. The law must be approved by a majority of religious groups.
3. A state statute allows a nativity scene on public property, but only if accompanied by secular holiday symbols. Is this likely constitutional?
   1. Yes, because the display is part of a broader secular context.
   2. No, because any religious symbol on public land is unconstitutional.
   3. Yes, if the majority of residents are Christian.
   4. No, unless the government funds only the secular symbols.

Introduction

The Establishment Clause of the First Amendment prohibits government from establishing, endorsing, or favoring religion. This means government must remain neutral regarding religious belief and practice. The Supreme Court has developed several tests to determine when government action violates this requirement, with the Lemon test being the most frequently applied on the MBE.

The Establishment Clause applies to both federal and state governments through the Due Process Clause of the Fourteenth Amendment.

Key Term: Establishment Clause
The First Amendment provision stating that “Congress shall make no law respecting an establishment of religion,” interpreted to bar government from establishing, endorsing, or favoring religion or a particular religious sect.

Key Term: Free Exercise Clause
The First Amendment provision stating that “Congress shall make no law … prohibiting the free exercise” of religion, protecting individuals and religious organizations from government burdens on religious belief and practice. It often operates alongside the Establishment Clause but addresses burdens rather than endorsements.

On the exam, an Establishment Clause analysis typically follows three steps:

• Identify the government action and the type of benefit or burden (aid, display, prayer, delegation of power, etc.).
• Determine whether the action favors religion over nonreligion, or one religion over others (sect preference). If so, strict scrutiny applies.
• If there is no facial preference, apply the Lemon test and related neutrality, endorsement, and coercion concepts.

Sect Preference and Strict Scrutiny

When the government expressly prefers one religious sect over another, or religion over nonreligion, the Court treats this as a serious violation.

Key Term: Sect Preference
A law or policy that explicitly favors one religious denomination over others, or favors religion over nonreligion; such laws are subject to strict scrutiny.

If a statute, for example, creates a special district tailored to a single religious community or gives formal advantages to one faith, the Court will usually strike it down without even completing the Lemon analysis. At minimum, such a law will fail strict scrutiny because:

• It lacks a genuinely compelling interest in preferring one faith, and
• It is not narrowly tailored to such an interest.

By contrast, a neutral law that incidentally benefits or burdens religious groups, along with many secular groups, is much more likely to be upheld.

Key Term: Government Neutrality
The Establishment Clause requirement that government neither favors nor disfavors religion and treats religious and nonreligious groups on an equal basis.

In addition to these structural requirements, standing can be an issue in Establishment Clause cases. Most taxpayers lack standing to challenge government spending, but there is a narrow exception for certain Establishment Clause challenges to specific congressional taxing-and-spending measures. This sometimes appears on the MBE in justiciability questions.

The Lemon Test

The Lemon test, from Lemon v. Kurtzman, is the primary standard for evaluating Establishment Clause issues in many contexts. Under this test, government action is unconstitutional unless:

1. The action has a secular (non-religious) purpose.
2. Its primary effect neither advances nor inhibits religion.
3. It does not cause excessive government entanglement with religion.

Key Term: Lemon Test
A three-part Establishment Clause test requiring (1) a secular purpose, (2) a primary effect that neither advances nor inhibits religion, and (3) no excessive government entanglement with religion.

Courts and MBE questions commonly use Lemon where the government:

• Provides aid or financial benefits to religious institutions.
• Regulates or supports religious activities in public institutions (especially schools).
• Sponsors or hosts religious symbols or displays.

Secular Purpose

The law must pursue a genuine secular objective, such as:

• Improving safety, health, or education.
• Preserving historical artifacts.
• Managing public property or resources.

If the stated secular purpose is a sham and the actual purpose is religious—such as “advancing Christian values” in public schools—the law fails the first prong.

Primary Effect

The primary effect must neither advance nor inhibit religion. Under this prong, courts look at how a reasonable observer would view the law’s effects:

• A law that provides textbooks, transportation, or safety improvements to all schools—religious and nonreligious—on equal terms usually has a secular primary effect.
• A law that funds religious instruction, worship, or proselytizing as such typically has the primary effect of advancing religion and fails this prong.

Excessive Entanglement

Key Term: Excessive Entanglement
A level of ongoing government involvement with religion—such as continuous monitoring, oversight, or shared decision-making—that violates the Establishment Clause under the Lemon test.

Examples of excessive entanglement include:

• Ongoing government audits of religious curricula to ensure funds are not used for religious teaching.
• Delegating governmental decision-making power (like liquor license vetoes) to religious bodies.
• Extensive, detailed regulation of internal church affairs.

Note that more recent Supreme Court decisions sometimes emphasize historical practice, neutrality, and coercion over strict application of Lemon, especially in cases involving longstanding religious monuments or legislative prayer. However, for exam purposes, the Lemon test remains central, particularly for aid-to-religion and school-related cases.

Government Aid to Religion

Government may provide benefits to religious institutions if the program is neutral and aid is for a secular purpose (such as health or safety). However, direct government funding of religious activities or instruction is prohibited. Indirect aid, such as vouchers used by parents at religious schools, is generally allowed if the program is neutral and the choice is private.

Key Term: Private Choice
A situation in which government funds reach religious institutions only because individual beneficiaries (e.g., parents or students) independently choose to direct their aid to those institutions.

Key distinctions for the exam:

• Neutral, secular aid to a broad class, including religious institutions, is typically constitutional. Examples:
  • Bus transportation reimbursements for all students.
  • Grants for fire or playground safety for all schools.
  • Technology or textbooks limited to secular subjects.
• Direct subsidies for religious activities—such as paying clergy salaries or funding worship services—are unconstitutional.

Even if a high percentage of funds end up at religious institutions, that does not invalidate a neutral program if:

• The program’s purpose is secular (e.g., improving educational opportunities in a struggling district), and
• Any benefit to religion results from private choices, not governmental steering.

Worked Example 1.1

A state provides grants to all private schools, including religious ones, for fire safety improvements. A taxpayer challenges the program as violating the Establishment Clause. Is the program likely constitutional?

Answer:
Yes. The program is neutral, serves a secular purpose (safety), and does not advance religion. Aid is available to all schools on equal terms and is restricted to secular uses. There is no excessive entanglement, so the Lemon test is satisfied.

Worked Example 1.2

A city places a large cross on the roof of city hall during December. There are no other holiday decorations. Is this display constitutional?

Answer:
No. The display lacks a secular context and would be seen as government endorsement of Christianity, violating the Establishment Clause. A reasonable observer would perceive the city as favoring one religion, failing both the purpose and primary-effect prongs of Lemon and the endorsement test.

Worked Example 1.3

Faced with poorly performing public schools in a city, a state creates a voucher program. Parents receive vouchers that can be used for tuition at any private school in the district (religious or secular) or given to the public school for extra funding. Over 95% of vouchers are used at religious schools. The program does not restrict how schools use the funds. Is the program constitutional?

Answer:
Yes. The program’s purpose is secular (improving education). It is neutral, making aid available to a broad class of parents, who then exercise private choice in selecting schools. The primary effect is to aid students, not religion as such, and any benefit to religious schools comes indirectly through parental choice. The high percentage of religious recipients does not by itself invalidate a neutral program.

Key Term: Government Neutrality
The requirement that government neither favors nor disfavors religion, but treats religious and non-religious groups equally. Neutral programs that incidentally benefit religious entities are usually upheld.

Religious Displays and Symbols

Religious symbols on public property are evaluated based on context. A religious display is more likely to be upheld if it is part of a broader secular or historical presentation. Displays that appear to endorse religion, such as a stand-alone nativity scene, are likely unconstitutional.

Key factors the Court considers (and that the MBE will test):

• Overall context: Is the religious symbol part of a mixed, secular display (e.g., trees, Santa, lights, patriotic monuments), or is it isolated and prominent?
• Perception of endorsement: Would a reasonable observer view the display as the government taking a position on religious belief?
• History and tradition: Longstanding monuments that also have historical or cultural significance are more likely to be upheld.

Examples:

• A nativity scene surrounded by other secular holiday decorations and symbols of the season is more likely to be viewed as part of a cultural celebration and upheld.
• A stand-alone crèche or cross prominently displayed in a government building, with no secular context, is likely unconstitutional.
• A Ten Commandments monument that has been part of a larger collection of historical markers for decades may be upheld, while a newly installed display, placed alone with an explicitly religious purpose, may be struck down.

Endorsement and Coercion

Government may not endorse religion or coerce individuals to participate in religious activities. Official prayers in public schools or government-sponsored religious exercises are unconstitutional, even if participation is voluntary.

Key Term: Endorsement Test
A standard asking whether a reasonable observer would view government action as endorsing religion or a particular faith. Apparent endorsement violates the Establishment Clause.

Key Term: Coercion Test
A standard asking whether government action coerces individuals—especially students or other captive audiences—to participate in religion or its exercise.

Religious Activities in Public Schools

School contexts are especially sensitive because students are a captive, impressionable audience. Common exam-tested rules:

• Unconstitutional:

  • Official school-sponsored prayer, Bible readings, or moments of silence that explicitly encourage prayer.
  • Clergy-led prayers at graduation ceremonies or school events.
  • Student-led prayers that are effectively sponsored or controlled by school officials (e.g., via the public address system at football games).
  • Posting the Ten Commandments in classrooms solely to advance religious values.

• Generally constitutional:

  • Teaching about religion in a secular, academic way (e.g., in history or literature classes).
  • Voluntary, student-initiated religious clubs meeting after school in a limited public forum, on the same terms as other student groups (this is often analyzed under free speech, but it is compatible with the Establishment Clause because the school is neutral).

Coercion can be subtle in the school context. Even if students are told participation is “voluntary,” social pressure and the setting may render a practice coercive and thus unconstitutional.

Worked Example 1.4

A public high school holds a graduation ceremony in the school gym. The principal invites a local pastor to give an opening prayer and includes the prayer in the official program. Attendance is not legally required, but the ceremony is the only graduation event. A student challenges the practice. How should a court rule?

Answer:
The practice is unconstitutional. The school is sponsoring a religious exercise at an official event, and students are effectively coerced to participate by social pressure and the importance of the ceremony. This violates both the coercion and endorsement tests and fails the Lemon test’s purpose and effect prongs.

Legislative Prayer and Other Non-School Contexts

The Court treats legislative prayer differently from school prayer. Historical practice plays a large role:

• A state legislature or town board may open meetings with a prayer delivered by a chaplain or rotating clergy drawn from local congregations.
• The practice is permissible if:
  • The town or legislature does not discriminate against minority faiths in selecting prayer-givers.
  • Participation is not coerced.
  • Prayers do not proselytize or denigrate nonbelievers.

Key Term: Legislative Prayer
The practice of opening legislative or similar governmental sessions with prayer, which is generally permitted when consistent with historical tradition, noncoercive, and nondiscriminatory.

Worked Example 1.5

A town board begins each monthly meeting with a prayer delivered by clergy from local congregations listed in a town directory. Most clergy are Christian, so most prayers are Christian, but the town accepts any willing clergy and does not pressure attendees to participate. Is this practice constitutional?

Answer:
Yes. In light of historical practice of legislative prayer, the town’s neutral selection of local clergy, and the absence of coercion or discrimination against minority faiths, the practice does not violate the Establishment Clause.

Delegation of Government Power to Religious Bodies

Government may not delegate governmental powers—such as licensing or veto authority—to religious institutions. This creates excessive entanglement and violates neutrality.

Example: A statute giving churches the power to veto nearby liquor licenses is unconstitutional because it:

• Grants governmental authority to religious entities.
• Encourages political power based on religious identity.
• Creates ongoing entanglement between church decisions and state regulation.

Worked Example 1.6

A state law allows any church within 300 feet of a proposed bar to veto the bar’s liquor license application. A church uses this power to block a license, and the bar owner sues under the Establishment Clause. What result?

Answer:
The law is unconstitutional. It delegates governmental veto power over liquor licenses to churches, causing excessive entanglement and favoring religious institutions in governmental decision-making, in violation of the Establishment Clause.

Standing in Establishment Clause Cases

While standing is not part of the Establishment Clause itself, it is often tested alongside it.

• Ordinary taxpayers lack standing to challenge government expenditures merely because they dislike them.
• There is a narrow exception for federal taxpayers challenging specific congressional taxing-and-spending measures alleged to violate the Establishment Clause (though this exception is limited and does not extend to every type of challenge).

Key Term: Taxpayer Standing (Establishment Clause)
A narrow exception allowing federal taxpayers to challenge specific congressional taxing-and-spending programs that allegedly violate the Establishment Clause, even when they lack a more particularized injury.

On the MBE, if you see a taxpayer challenging a federal spending program that allegedly aids religion, it is more plausible that standing exists than in other taxpayer suits—but you must still confirm that the complaint targets a specific taxing-and-spending measure, not general executive action.

Worked Example 1.7

Congress appropriates funds “to support Christian youth ministries in public schools.” A federal taxpayer sues, alleging a violation of the Establishment Clause. Does the taxpayer have standing?

Answer:
Likely yes. This is a challenge to a specific congressional taxing-and-spending program alleged to aid religion, falling within the narrow Establishment Clause exception to the general rule against taxpayer standing. The program itself would almost certainly fail strict scrutiny and the Lemon test, but the threshold issue is that standing is present.

Exam Warning

The Establishment Clause does not require government hostility toward religion. Neutral programs that incidentally benefit religious groups are often constitutional if they meet the Lemon test. Conversely, government may not favor religion or a particular faith, nor may it coerce participation in religious activities—especially in public schools.

Common exam traps:

• Assuming any benefit to a religious group is invalid. Neutral, secular benefits are usually allowed.
• Ignoring the role of private choice in voucher and scholarship programs.
• Overlooking coercion in school prayer scenarios, even where participation is nominally “voluntary.”
• Forgetting strict scrutiny applies when a law clearly prefers one religion over another or religion over nonreligion.

Revision Tip

When analyzing Establishment Clause questions, always:

• Ask whether the government is preferring religion over nonreligion or one sect over another (strict scrutiny).
• If not, apply the Lemon test: secular purpose, primary effect, and entanglement.
• In school cases, pay special attention to coercion and the captive nature of the audience.
• For aid programs, check for neutrality and private choice.

Key Point Checklist

This article has covered the following key knowledge points:

• The Establishment Clause prohibits government from establishing or endorsing religion and applies to the states via the Fourteenth Amendment.
• Laws that expressly favor one religious sect over others, or religion over nonreligion, trigger strict scrutiny and are almost always invalid.
• The Lemon test is the main standard: secular purpose, primary effect that neither advances nor inhibits religion, and no excessive entanglement.
• Government aid to religion is allowed if the program is neutral, serves a secular purpose, and any aid results from private choice rather than government direction.
• Religious displays on public property are evaluated by context and history; apparent government endorsement of religion is prohibited.
• Government may not coerce participation in religious activities, with public schools being the most sensitive context for coercion analysis.
• Legislative prayer can be permitted when consistent with historical practice, noncoercive, and nondiscriminatory.
• Government may not delegate governmental powers to religious institutions, as this creates excessive entanglement.
• Taxpayer standing is generally barred but has a narrow exception for certain Establishment Clause challenges to specific federal taxing-and-spending programs.

Key Terms and Concepts

• Establishment Clause
• Free Exercise Clause
• Lemon Test
• Government Neutrality
• Private Choice
• Excessive Entanglement
• Endorsement Test
• Coercion Test
• Sect Preference
• Legislative Prayer
• Taxpayer Standing (Establishment Clause)