What Does ''Respecting An Establishment of Religion'' Mean ?
In Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971), the Supreme Court stressed that the Establishment Clause does not merely prohibit the establishment of a state church; instead, it commands "that there should be 'no law respecting an establishment of religion.' " Id. at 612 (quoting U.S. CONST. amend I, cl.1).
This special language means that laws which do not establish a religion but that are "a step that could lead to such establishment" violate the First Amendment. Id.
Lemon and subsequent cases have relied on a three-part test to determine whether a statute or other governmental action constitutes a "law respecting an establishment of religion."
For a government act not to be a law respecting an establishment of religion:
(1) it "must have a secular legislative purpose";
(2) its "principal or primary effect must be one that neither advances nor inhibits religion";
(3) it "must not foster 'an excessive government entanglement with religion.'" Id. (quoting Walz v. Tax Comm'n, 397 U.S. 664, 674, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970)).
In Lemon, the Court considered the constitutionality of a statute providing state funds to private religious schools for reimbursement of the cost of teachers' salaries, textbooks, and instructional materials in certain secular subjects. See 403 U.S. at 606-07.
The Court determined that even though it would not assume the religious schools' teachers would be unsuccessful in segregating their religious beliefs from their secular responsibilities, "the potential for impermissible fostering of religion is present." 403 U.S. at 619.
The Court determined that the monitoring of the program necessary to prevent state funds from being used for religious purposes would "involve excessive and enduring entanglement between state and church." Id. the Court also considered the fact that the program might require examination of the schools' records to determine the amount of expenditures attributable to religious teaching and the amount attributable to secular activity.
The Court stated, that "this kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids.
It is a relationship pregnant with dangers of excessive government direction of church schools and hence of churches." Lemon, 403 U.S. at 620.
Thus, Lemon prohibits government monitoring of a religious organization's activities for determining which particular actions within a religious activity are religious and which, if any, are secular.
After Lemon, the Supreme Court struck down numerous statutes attempting to provide government aid to religious private schools.
Aguilar v. Felton, 473 U.S. 402, 414, 87 L. Ed. 2d 290, 105 S. Ct. 3232 (1985) (striking statute providing special education programs under Title I for children in religious schools with strict monitoring to ensure no religious teaching);
School Dist. v. Ball, 473 U.S. 373, 397-98, 87 L. Ed. 2d 267, 105 S. Ct. 3216 (1985) (striking statute providing supplemental secular education courses for children at religious schools);
Meek v. Pittenger, 421 U.S. 349, 370-73, 44 L. Ed. 2d 217, 95 S. Ct. 1753 (1975) (striking statute providing "auxiliary services," textbooks, and instructional materials to religious schools);
Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 793, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1973) (striking statute providing payments to religious schools for maintenance and repair, state reimbursement of tuition for religious schools, and state income tax adjustment for religious school tuition);
Levitt v. Committee for Pub. Educ. & Religious Liberty, 413 U.S. 472, 481-82, 37 L. Ed. 2d 736, 93 S. Ct. 2814 (1973) (striking statute providing reimbursement to religious schools for cost of administering, grading, and compiling standardized state-wide tests and teacher-prepared tests and maintenance of certain records);
Board of Educ. v. Grumet, 512 U.S. 687, 709-10, 129 L. Ed. 2d 546, 114 S. Ct. 2481 (1994) (striking statute creating school district consisting almost solely of Satmar Hasidic Jews).
The Court overturned the government aid programs in these cases for creating excessive government entanglement with the religious entities due to one or more of the following five grounds:
(1) public employees working on a religious school's premises are presumed to inculcate religion in their work
(2) the presence of public employees on private school premises creates a symbolic union between church and state;
(3) any and all public aid that directly aids the educational function of religious schools impermissibly finances religious indoctrination, even if the aid reaches such schools as a consequence of private decision making;
(4) public employees who teach on the premises of religious schools must be closely monitored to ensure that they do not inculcate religion; and
(5) monitoring of a religious school's records to determine the ratio of secular and religious spending.See Agostini v. Felton, 521 U.S. 203, 117 S. Ct. 1997, 2010, 138 L. Ed. 2d 391 (1997) (grounds 1-4); Lemon, 403 U.S. at 620 (ground 5).