In the 1971 case of Lemon v. Kurtzman, the U.S. Supreme Court provided a three-part test for deciding whether a law or governmental action constitutes an “establishment of religion” and is therefore unconstitutional. Under this “Lemon test” a court asks: (1) whether the law or action of government has a genuine secular purpose; (2) whether it has the primary effect of either advancing or inhibiting religion; and (3) whether it excessively entangles religion and government. By answering these questions, courts attempt to walk the tightrope between the two Religion Clauses of the First Amendment. The Supreme Court modified the Lemon test in 1977 to focus less on subjective intent and more on actual effect.
Individual justices of the Supreme Court have suggested other tests as well. Justice Anthony Kennedy has proposed the “coercion test,” under which an action or law does not violate the Establishment Clause unless it directly aids religion in a way that tends to establish a state church or it coerces people to support or participate in some religion against their will. Justice Sandra Day O’Connor has proposed the “endorsement test” which asks whether a law or governmental activity amounts to an endorsement of religion. This test has been used widely in cases involving prayers at graduation, religion in school curricula and religious signs on government property. As hard as it might be to fairly apply, a majority of high court justices will likely continue to emphasize the principle of religious neutrality: does a law or activity favor one religion over another, or religion over non-religion, or the other way around? If the answer is “yes,” that law or action is unconstitutional.
Federal courts still disagree regarding public displays of the Ten Commandments. In a 1980 case (Stone v. Graham), the Supreme Court found a Kentucky law unconstitutional which required the Ten Commandments to be posted in public school classrooms of that state. Although the Commandments have historical significance in the foundations of American and English law, the Court pointed to the command to worship only the God of the Bible and concluded that the Kentucky law had a religious purpose. Several lower federal courts have found displays of the Ten Commandments unconstitutional when the Commandments were specifically displayed but constitutional when inconspicuously found in combination with other, purely-secular symbols or artifacts.
Such reasoning offers no real comfort to Christians of conviction, for it says in effect that governmental displays of religion are justified only when they are meaningless. The federal courts have applied this concept, sometimes called “ceremonial deism,” in approving a variety of practices considered lacking in religious content but hallowed by historical usage. Examples of such “ceremonial deism” include prayers in Congress and at inaugurations, the national motto (“In God We Trust”) and the use of Bibles for administering oaths in court.
How ironic it would be if Alabama Chief Justice Moore’s monument — which he says he installed as an act of absolute piety and devotion to God — should finally be approved on the grounds that it lacks any religious significance! I cannot imagine that Mr. Moore or any of his supporters would consider that a victory for Christianity or a vindication of their personal faith in God. Yet under current constitutional law, that might well be the only basis on which the monument can receive legal approval. What are devout Christian believers to make of all this? Some thoughts on that in our next and final installment.