St. Mary's Law Journal


In 1980, the Supreme Court in Stone v. Graham addressed the issue of whether a statute requiring the display of the Ten Commandments in all public school classrooms was an unconstitutional establishment of religion. Applying the Lemon test the Court found the statute’s purpose to be religious and ruled it unconstitutional. Yet, had the state required the placement of the following “secular commandments” in every classroom, it is unlikely the Court would have found an Establishment Clause violation. Stone illustrates what the Supreme Court’s Establishment Clause jurisprudence has become. The Court has misconstrued the meaning of the “establishment of religion” to require a complete separation between religion and government. Concurrently, the Court has attempted to preserve the ethical principles which naturally spring from religion. Rather than favoring religious belief, the Supreme Court’s Establishment Clause jurisprudence has transformed the laudable goal of religious toleration into a requirement of non-endorsement of religion by the government. Present Establishment Clause jurisprudence dictates a three-part test for determining when state action constitutes an establishment of religion. The Lemon test, from Lemon v. Kurtzman asks the purpose of the state action. Is the principal or primary effect one which establishes or inhibits religion, and does the state action foster “an excessive government entanglement with religion?” But, many of the justices of the Court have expressed dissatisfaction with the Lemon test. In the pursuit of freedom, the Supreme Court, with the tacit approval of the American people, has attempted to accommodate all religions with the result of accommodating none. Whether the Court chooses coercion, endorsement, or leaves the Establishment Clause in the hands of Lemon is irrelevant. What matters is, in applying whatever standard it chooses, the Court should keep in mind the intent of the framers.


St. Mary's University School of Law