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Balancing Religious Practices and Constitutional Limits under the Establishment Clause

The United States Constitution upholds the fundamental right to freedom of religion for all American citizens. The First Amendment's Establishment Clause explicitly bars the government from “establishing a religion,” and restricts them from enacting any laws that would infringe upon the “establishment of religion” or impede individuals from practising their religious beliefs.


To assess whether a government action or law violates the Establishment Clause, three commonly applied tests are utilised: The Lemon Test, The Endorsement Test and the Coercion Test. The Lemon Test originated from the landmark Supreme Court case Lemon v. Kurtzman (1971), which stipulates that a law or government action must have a secular purpose, refrain from advancing or inhibiting religion and avoid entanglement between government and religion to be deemed constitutional. The Endorsement Test, which was introduced by Justice Sandra Day O’Connor in the case of Lynch v. Donnelly (1984), examines whether a law or government action conveys endorsement or disapproval?” of religion. If it demonstrates endorsement, it can be considered a violation of the Establishment Clause. The Coercion Test was established in Lee v. Weisman (1992), and focuses on whether government action or law forces individuals into participating in religious activities against their will. If a law or government action exerts pressure on individuals to support or engage in religious exercises, it is deemed unconstitutional.


However, there are instances when these tests are not employed. In the case of Marsh v. Chambers (1983), the Supreme Court upheld the practice of opening legislative sessions with a Chaplain’s prayer without applying these three tests. The court justified its decision by highlighting the deep-rooted historical tradition of the country associated with this practice. Although the Establishment Clause prohibits government-sanctioned religion, the Supreme Court recognises that certain historical practices have secular purposes and significance that extend beyond their religious origins. As a result, the court permits limited government involvement and display of these practices as long as they serve a secular purpose and do not seek to endorse or favour any one religion. This approach can not only be observed in Supreme Court cases, but also various government actions. For example, religious symbols such as holiday decorations (alongside other historical and cultural practices and symbols) may be allowed based on their historical significance rather than their religious connotations. Examples of this can include a Christmas tree at the White House, or a Bible at swearing-in ceremonies. While these Bibles can be chosen by the candidate, historically it has often been a Christian Bible and is a symbol of religious exemption due to a historical tradition. This exception is referred to as the “secular purpose” or “ “historical tradition” exemption.


The issue of legislative prayer exemption was revisited and clarified in the case of Town of Greece v. Galloway (2014). This case expanded the scope of the legislative prayer exception to include prayers delivered at town-board meetings. The court established that as long as the prayer did not aim to convert or offend nonbelievers and religious minorities, it would be permitted under the legislative prayer exception.


While the Supreme Court has granted exemptions for religious practice in legislative deliberative bodies, it adheres to the Establishment Clause tests in cases involving school prayer. A notable case in this regard is Lee v. Weisman (1992), which dealt with the controversy surrounding prayer at public school graduation ceremonies. In a narrow 5-4 decision, the court ruled that such practices amounted to a state-sponsored religious exercise, which contravened the principle of government neutrality towards religion and therefore violated the Establishment Clause.


The case of the American Humanist Association v. McCarty (2017) represents an ongoing debate concerning the Establishment Clause. It delves into the question of whether religious practices in legislative bodies are constitutional, while also addressing the issue of state-sponsored religious practices occurring in public schools. In this particular case, school board members from the Birdville Independent School District (BISD) requested students to deliver invocations, alongside the recitation of the Pledge of Allegiance and the Texas Pledge. These school board meetings were conducted in the school district building, open to the public, and allowed individuals to enter or exit at their discretion.


The American Humanist Association and Isaiah Smith raised an allegation that the practice of school prayer violated the Establishment Clause. In response, BISD argued that the invocations during the opening of these meetings were not unconstitutional, as they considered the student-led invocations as private speech and expression. Subsequently, BISD moved for summary judgement by seeking a ruling on the case without going to trial based on the clear facts and that their position is supported by law. The district court granted summary judgement and concluded that BISD and the school board members did not infringe upon the Establishment Clause. The court justified its decision by invoking the legislative prayer exception established in Marsh v. Chambers and Town of Greece v. Galloway. In response, the American Humanist Association and Smith filed an appeal, which led the case to be brought before the Supreme Court.


Upon appeal, the Supreme Court rendered a ruling stating that the school board’s practice of inviting students to make statements (which could encompass student-led prayer or religious speech) at the commencement of school board meetings did not infringe upon the Establishment Clause. The court considered the fact that the majority of attendees were adults and the statements were delivered during a ceremonial opening rather than compelling prayer. Consequently, BISD and the school board members were found to not be in violation of the Establishment Clause, as these expressions did not meet the criteria of government actions or laws designed to endorse, prohibit or coerce religious practices. Furthermore, according to the tests applied to assess actions conflicting with the Establishment Clause, this practice did not meet the threshold to be determined unconstitutional.


While the Supreme Court ruled in favour of BISD and determined that their practices do not violate the Establishment Clause, this case is significant as it raises crucial inquiries regarding the distinctions between legislative-prayer cases and school-prayer cases. While permitting religious statements during ceremonial introductions of a deliberative public body is deemed constitutional, the situation becomes contentious when this practice intertwines with the unconstitutional endorsement of school-sanctioned religious statements made by students on school district property. The complex interplay of these factors presents a greater challenge in resolving this specific case. Nevertheless, the Supreme Court’s decision provides valuable clarity and establishes clear boundaries for the future application of the Establishment Clause.


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