"Congress shall make no law respecting an establishment of religion..."The first ten words of the First Amendment.
The term does not appear in the Constitution. In a famous 1802 letter to the Baptists of Danbury, Connecticut, Thomas Jefferson said that the Establishment Clause built "a wall of eternal separation between Church & State."
Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof;’ thus building a wall of eternal separation between Church & State. Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from prescribing even those occasional performances of devotion, practiced indeed by the Executive of another nation as the legal head of its church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect.Thomas Jefferson, 1802
In 1947, the Supreme Court said in Everson v. Board of Education, "In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’" However, in later decisions, the Court has also said that "total separation is not possible in an absolute sense."
In 1971, the Supreme Court decided Lemon v. Kurtzman. Alton Lemon, a parent of a child in a Pennsylvania public school, challenged a Pennsylvania law providing financial support for teacher salaries, textbooks, and materials for secular subjects at non-public schools. Most non-public schools in Pennsylvania were Catholic schools.
The Court held that the Pennsylvania law providing funds to those schools violated the Establishment Clause because it created an "excessive entanglement" between church and state. In reaching this conclusion, the Court introduced a three-part test, which we now call the Lemon Test. In order for a law to comply with the Establishment Clause:
In 1984, the Supreme Court decided Lynch v. Donnelly. Daniel Donnelly, a resident of Pawtucket, Rhode Island, sued the city for including a Nativity scene in its public Christmas display. Using the Lemon Test, the Court held that the display did not violate the Establishment Clause. However, in a concurring opinion, Justice O’Connor characterized the Lemon Test as a bit vague and difficult to apply. Thus, she suggested that courts use the Endorsement Test. In order for a government action to comply with the Establishment Clause, it must have neither the purpose nor the effect of endorsing or disapproving of religion from the perspective of a reasonable observer.
In 1992, the Supreme Court decided Lee v. Weisman. Daniel Weisman, whose teenage daughter, Deborah, was a student in a Rhode Island public school, brought a challenge against the school’s practice of inviting a clergyman to start middle and high school graduation ceremonies with a prayer. The Court ruled that including clergy who offered prayers as part of an official public school graduation ceremony is forbidden by the Establishment Clause. In reaching his conclusion, Justice Kennedy used the Coercion Test, which says that at minimum, the Establishment Clause "guarantees that government may not coerce anyone to support or participate in religion or its exercise, or other act in a way which establishes a state religion or religious faith, or tends to do so."
In 2000, the Supreme Court decided Santa Fe Independent School District v. Doe. A high school in Santa Fe, Texas, had a practice of starting its football games with a prayer delivered by a student. The student body elected this official prayer giver at the beginning of the year. The mothers of two students, one Catholic and one Mormon, brought suit against the school district stating that the prayer practice violated the Establishment Clause. They sued anonymously in order to avoid intimidation and harassment. The Supreme Court held that this practice violated the Establishment Clause, mainly using the Coercion Test, but also considering the Endorsement Test and the Lemon Test.
In 1983, the Supreme Court tackled the question of legislative prayer in Marsh v. Chambers. The Nebraska state legislature, like most legislatures around the country, had a practice of starting its session with a prayer delivered by an official Chaplain. Nebraska State Senator Ernie Chambers sued to stop this practice. Rather than applying any particular Establishment Clause test, the Court instead noted that prayers by tax-supported legislative chaplains go back to the First Continental Congress and the First Congress of this Constitution. The Court concluded that it is a "part of the fabric of our society" and "simply a tolerable acknowledgement of beliefs widely held among the people of this country."
The Town of Greece, located in New York on the southern shore of Lake Ontario, is the largest suburb of Rochester. It has a population of just under 100,000, large enough to support its own local newspaper, The Greece Post. The town is governed by an elected Board composed of five members, including the Town Supervisor who serves as the chief executive of the town.
Beginning in 1999, the Town Board began the practice of having a local member of the clergy deliver a prayer before every meeting. Until 2007, all prayers were delivered by a member of the clergy from a Christian denomination.
In 2007, two local residents, Susan Galloway and Linda Stephens, began to complain to the Town Board that they found the practice offensive. Ms. Galloway is Jewish and Ms. Stephens is an atheist. They believed the prayers being delivered before every Town Board meeting was a violation of the Establishment Clause of the U.S. Constitution.
The Town Board, all five members of whom are Christian, continued to start its meetings with prayers, so Ms. Galloway and Ms. Stephens filed a complaint in the U.S. District Court for the Western District of New York. In 2010, the District Court dismissed the lawsuit stating that neither the Town’s procedure for inviting local members of the clergy to deliver prayers at the Town Board meetings nor the prayers themselves violated the Establishment Clause.
Ms. Galloway and Ms. Stephens appealed to the U.S. Circuit Court of Appeals for the Second Circuit. In 2012, the Circuit Court reversed the decision of the District Court. The Circuit Court held that under the circumstances, the Town Board’s practice of legislative prayer was an endorsement of a particular religious viewpoint, and therefore was a violation of the Establishment Clause.
The Town of Greece appealed to the U.S. Supreme Court. On May 20, 2013, the Supreme Court agreed to hear the case, with oral arguments on November 6, 2013.
When the justices sit down to decide this case, the first question they must answer is what legal standard to use. It seems unlikely that they will rely on the Lemon test, as at least five members of the current Court have expressed their disagreement with that approach. But the other two approaches -- the Endorsement Test from Lynch v. Donnelley and the Coercion Test from Lee v. Weisman are both possibilities. Indeed, the Court could use this opportunity to definitively reject the Lemon test and clearly ensconce one of these other approaches to the Establishment Clause.
The Coercion Test allows government more leeway than does the Endorsement Test. In other words, there are likely some practices which would be upheld under the Coercion Test (because the government is not coercing anyone) but struck down under the Endorsement Test (because a reasonable observer might think the government is endorsing religion). For this reason, the decision as to which test to use may have implications beyond Town of Greece v. Galloway.