Read Part 1

Many years before courts began interpreting the Establishment Clause, Alexander Hamilton expressed his thoughts on the interpretation of the Constitution in a letter to George Washington:

[W]hatever may have been the intention of the framers of a constitution or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction.

Unfortunately, when it comes to interpreting the Establishment Clause today, Hamilton’s centuries-old guidance is too often left by the wayside. Beginning in the mid-20th century, the Supreme Court turned to sources besides the framers’ intent in rendering its decisions about the Establishment Clause. This is the era that generated the doctrine of the so-called “separation between church and state.”

This doctrine underlies the decision of Lemon v. Kurtzman (1971). In that case, the Court said that a government action is unconstitutional if (1) there is no secular purpose for the action (2) it has the primary effect of advancing or inhibiting religion, or (3) it fosters an excessive government entanglement with religion.

Unfortunately, neither this test nor later cases modifying it effectively protects religious minorities. The reason is that these tests are malleable; courts are forced to make decisions without clear guidance from the law, which has so far failed to clearly articulate whether the prongs are met. There is no better example of this than cases involving the display of religious minority symbols or practices on public property. Consider the following cases that involve the Lemon test or some variation of it:

  • Allegheny County, Pa.: The Supreme Court fails to come to a consensus about whether a menorah situated next to a Christmas tree was too religious to appear on public property.
  • Westchester County, N.Y.: A trial court reasons that a menorah situated next to an unlit Christmas Tree is, indeed, too religious to appear on public property.
  • Queens, N.Y.: The state department of education reasons that for the purposes of classroom holiday displays, a nativity is a “religious symbol” and cannot appear in a classroom display, but a menorah and crescent moon and star can because they are “secular symbols.”
  • Southampton, N.Y.: A court reasons that a traditional Jewish religious practice involving affixing wires on telephone poles (an eruv) is more secular and is less likely to advance religion or foster church-state entanglement than (1) permitting a private Christian organization for children to have meetings at a public school after hours or (2) displaying a Christmas nativity scene display on public property because eruvs do not “contain any overtly religious features.”

Nativities are too religious to appear on public property. Menorahs are sometimes too religious. Crescent moons and stars are secular. Traditional Jewish religious practices are okay because they don’t look religious. Interpreting and applying the Establishment Clause should not be this disjointed. The Lemon standard perpetrates confusion and inconsistency. There is, however, a better way, which we cover in the next post.

This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”