Landmark U.S. Supreme Court Decisions re: Establishment Clause

(please see for a more detailed list)



Lovell v. Griffin

In this case on behalf of Jehovah’s Witnesses, order a Georgia ordinance prohibiting the distribution of “literature of any kind” without a City Manager’s permit, information pills was deemed a violation of religious liberty.


West Virginia v. Barnette

Compelling Jehovah’s Witness children to salute the American flag against their religious beliefs was unconstitutional.


Everson v. Board of Education

Issue – Does a state statute giving reimbursement of the cost of transportation to and from school to parents of school age children violate the Establishment Clause of the 1st Amendment as applied to by the 14th Amendment?

Decision – The Court acknowledged that the First Amendment was intended to erect a wall of separation between church and state. Justice Black’s pronouncement that, “In the words of Jefferson, the Clause… was intended to erect a ‘wall of separation’ between church and State…” was the Court’s first major utterance on the meaning of the Establishment Clause.


McCollum v. Board of Education

Issue – Does a state plan permitting religious instruction in the public schools with the provision that non-participants be reassigned to classes offering no religious instruction violate the Establishment Clause of the First Amendment?

Decision – Because public schools have compulsory education requirements, the Ill. plan created a situation where students were forced to participate in religious instruction or risk being ostracized by teachers and peers. The Court found the plan did violate the Establishment Clause.


Engel v. Vitale

Issue – Does the recitation of a non-denominational prayer in public schools violate the Establishment Clause of the First Amendment?

Decision – In striking down the New York State Regent’s “nondenominational” school prayer, the Court declared “the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is not part of the business of government to compose official prayers for any group of the American people, to recite as a part of a religious program carried on by government.”


Abingdon School District v. Schempp

Issue – Does the reading of Bible verses and the recitation of the Lord’s Prayer in public schools violate the Establishment Clause of the First Amendment?

Decision – Building on Engel, the Court struck down Pennsylvania’s in-school Bible-reading law as a violation of the First Amendment. The Court found that neither program had a secular purpose but both had the primary effect of advancing religion. Under the “secular purpose” and “primary effect” tests, The Court found that both states’ plans violated the Establishment Clause.


U.S. v. Seeger 

One of the first anti-Vietnam War decisions extended conscientious objector status to those who do not believe in a supreme being, but who oppose war based on sincere beliefs that are equivalent to religious objections.


Epperson v. Arkansas

Issue – Does a statute prohibiting the teaching of evolution in public schools violate the Establishment Clause of the First Amendment?

Decision – Arkansas’ ban on teaching “that mankind ascended or descended from a lower order of animals” was a violation of the First Amendment, which forbids official religion. The Court held that prohibiting the teaching of evolution actually had the effect of advancing a particular religion’s beliefs and so violated the secular purpose test.


Flast v. Cohen

Issue – Do taxpayers have standing to file a suit challenging the constitutionality of a federal statute (state providing funds for services and supplies of a religious school) on the ground that it violates the Establishment and the Free Exercise Clauses of the First Amendment?

Decision – The Court held that the taxpayers had standing to sue. “Our history vividly illustrates that one of the specific evils feared by those who drafted the Establishment Clause … was that the taxing and spending power would be used to favor one religion over another or to support religion in general.”


Lemon v. Kurtzman

The Supreme Court of the United States ruled that Pennsylvania’s 1968 Nonpublic Elementary and Secondary Education Act, which allowed the state Superintendent of Public Instruction to reimburse nonpublic schools (most of which were Catholic) for the salaries of teachers who taught secular material in these nonpublic schools, secular textbooks and secular instructional materials, violated the Establishment Clause of the First Amendment.

The Court’s decision in this case established the “Lemon test“, which details the requirements for legislation concerning religion. It consists of three prongs:

  1. The government’s action must have a secular legislative purpose;
  2. The government’s action must not have the primary effect of either advancing or inhibiting religion;
  3. The government’s action must not result in an “excessive government entanglement” with religion.

If any of these 3 prongs are violated, the government’s action is deemed unconstitutional under the Establishment Clause of the First Amendment to the United States Constitution. While some courts apply Lemon in all or most cases, others apply it in few or none. The Supreme Court itself has applied the Lemon test as recently as 2000 in Santa Fe Independent School Dist. v. Doe.


Levitt v. Commission for Public Education & Religious Liberty, (PEARL)

Issue – Does a state statute that provides for direct aid to parochial schools violate the Establishment Clause of the First Amendment?

Decision – The Court found that LevittNyquist and Sloan had the purpose of advancing religion and violated the Establishment Clause. The plans made no attempt to ensure state funds were not being used for religious purposes. The tuition reimbursements were seen as a “reward” to parents for sending their children to sectarian schools.


Byrne v. Public Funds for Public Schools

Issue - Does a state tax deduction against gross income for parents of parochial school children violate the Establishment Clause of the First Amendment?

Decision - The Court affirmed a lower court’s ruling that the tax scheme did violate the Establishment Clause. Since only parents of non-Public School children benefited from the plan, the lower court viewed Nyquist (1973) as controlling. Any plan that excludes a class of parents (here Public School children’s parents) has the effect of advancing religion.


Stone v. Graham

Issue – Does a state plan for placing the 10 Commandments in all public school classrooms violate the Establishment Clause of the First Amendment?

The Court held “the pre-eminent purpose for posting the 10 Commandments on school room walls is plainly religious in nature.” The plan was held to violate the Establishment Clause.


Lynch v. Donnelly

Justice O’Connor interpreted the “purpose” and “effect” prongs of the Lemon test in such a way as to place primary emphasis on the issue of government endorsement of religion. According to O’Connor,

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition…[by] endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.

The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion.

Similarly, O’Connor stresses the issue of endorsement under the effect prong of Lemon:

Focusing on the evil of government endorsement or disapproval of religion makes clear that the effect prong of the Lemon test is properly interpreted not to require invalidation of a government practice merely because it in fact causes, even as a primary effect, advancement or inhibition of religion…What is crucial is that the government practice not have the effect of communicating a message of government endorsement or disapproval of religion.

It is important to understand that the endorsement test does not replace the purpose and effects prongs of the Lemon test; it is merely O’Connor’s interpretation of these prongs. Nevertheless, O’Connor’s argument has been influential, and the Court has made reference to the test in several recent decisions. Additionally, there is some confusion about the relationship between the endorsement and Lemon tests. Some scholars understand the endorsement test as an addition to standards outlined in Lemon, while others view it as a minimal formulation of Lemon, i.e., that while endorsement may not be the only thing that violates the purpose and effects prongs of the Lemon test, it is the first and most important evidence that such a violation has occurred.


Wallace v. Jaffree

Issue – Does a statute that authorizes a school to provide a moment of silence or voluntary prayer (Statute 2) violate the Establishment Clause of the 1st Amendment?

Decision – Alabama’s “moment of silence” law, which required public school children to take a moment “for meditation or voluntary prayer,” violated the First Amendment’s Establishment Clause.


Edward v. Aguillard

Issue – Does a state law requiring that the scientific theory of evolution may not be taught in schools unless the religious theory of creationism is also taught along with it violate the Establishment Clause of the 1st Amendment?

Decision – In a case reminiscent of the 1925 Scopes “monkey” trial, the Court struck down a Louisiana law that required public school science teachers to give “equal time” to so-called creation science if they taught students about the theory of evolution. The Supreme Court found that the state law served a particular religious purpose – it advanced a religious doctrine by providing that a certain subject, evolution, would never be taught unless a religious perspective of that subject was presented along with it.


Lee v. Weisman

Issue - Does a secondary school graduation prayer given by a member of the clergy where the school principal controls the content of the prayer violate the Establishment Clause of the 1st Amendment?

Decision – The inclusion of a prayer at the beginning of a public high school graduation ceremony violated the Establishment Clause. Even though the school did not require students to attend the graduation ceremonies, the Court found that the practical and symbolic importance of the event, in essence, rendered its attendance “obligatory.” Graduation prayer at secondary school, therefore, violated the Establishment Clause. The principal picked the clergy and controlled the content of the prayer – such actions were the equivalent of state endorsement of religious exercise.


Board of Education of Kiryas Joel v. Grumet

Issue - Does an Act creating a school district comprised only of a village of Hasidim Jews violate the Establishment Clause of the 1st Amendment?

Decision - The Court held that one of the primary principles of the Establishment Clause is that the “government should not prefer one religion to another, or religion to irreligion.” The Act established a franchise by a religious test which resulted in a “purposeful and forbidden fusion of government and religious function.”


Church of the Lukumi Babalu Aye v. Hialeah

A city’s ban on the ritual slaughter of animals as practiced by the Santeria religion was overturned as a violation of religious liberty since the city did permit such secular activities as hunting and fishing.


Santa Fe Independent School District v. Doe 

The Court ruled that a school district policy permitting its student body to vote at the beginning of each school year whether to have prayers before football games violated the Establishment Clause.


Tammy Kitzmiller, et al. v. Dover Area School District, et al.

Issue - the first direct challenge brought in the United States federal courts testing a public school district policy that required the teaching of intelligent design.

Decision – that the Dover mandate requiring the statement to be read in class was unconstitutional. The ruling concluded that intelligent design is not science, and permanently barred the board from “maintaining the ID Policy in any school within the Dover Area School District, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to a religious, alternative theory known as ID.

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