Evolution of "Establishment Clause" Legal Thought
Los Angeles based attorney Edward Tabash, www.tabash.com, wrote a detailed, chronological history of Church - State Separation issue in a 2013 essay called "The True Meaning of Separation of Church and State". The essay can also be found on the "Center for Inquiry" website at: https://centerforinquiry.org/wp-content/uploads/2020/10/ETSeparationOutlineHandoutCurrent.pdf
The essay, covering the period 1785 - 2000, uses court cases to discuss the evolution of legal thought regarding the "Establishment Clause" of the 1st Amendment and "Religious Freedom".
According Mr. Tabash's research, in 1785 James Madison wrote the Memorial and Remonstrance Against Religious Assessments in opposition to a proposal in the Virginia Legislature to use government funds for the support of any ministry.
(As noted in the 1st page of this section Thomas Jefferson drafted a bill to establish religious liberty on the basis of the natural, inalienable right to freedom of conscience in 1777.)
The chronological history concludes with references to 4 important Supreme Court "Religious Freedom" decisions:
- 1947: Everson v. Board of Education, 330 U.S. 1, 15. - Applies the "No Establishment Clause" to all levels of government via the 14th Amendment.
- 1961: Torcaso v. Watkins, 367 U.S. 488, 495 - Declares that no branch of government may undertake any activity that favors or assists all religions as against non-believers.
- 1984: Lynch v. Donnelly, 465 U.S. 668 (1984) - (From Justice Sandra Day O'Connor's concurring opinion) A government practice shall not have the effect of communicating a message of government endorsement or disapproval of religion. It is only practices having that effect, whether intentionally or unintentionally, that make religion relevant, in reality or public perception, to status in the political community. In the same concurring opinion, Justice O'Connor wrote that "political divisiveness along religious lines should not be an independent test of constitutionality...".
- 1994: Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687, 714 - Stipulates that no branch of government can “treat people differently based on the God or gods they worship, or do not worship".
- 2000: Santa Fe School District v. Doe, 530 U.S. 290, 309-310 - Requires that no branch of government can communicate the message to anyone that because of either accepting or rejecting any religious belief “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.”
Below is Mr. Tabash's essay
Websites: www.tabash.com; https://centerforinquiry.org/wp-content/uploads/2020/10/ETSeparationOutlineHandoutCurrent.pdf
Two Additional Supreme Court Decisions
Affecting "Establishment Clause" Law
I found the below 2 Supreme Court cases about the "Establishment Clause" while performing internet research. The cases were not mentioned in the above article; however, I thought they deserved inclusion.
Lemon v. Kurtzman, 403 U.S. 602 (1971):
Source: Justia.com; https://supreme.justia.com/cases/federal/us/403/602/
Primary Holding
The test for determining whether a law meets the requirements of the "Establishment Clause" is whether it has a legitimate secular purpose, does not have the primary effect of either advancing or inhibiting religion, and does not result in an excessive entanglement of government and religion.
American Legion v. American Humanist Association, 588 U.S. ___ (2019):
Source: Justia.com; https://supreme.justia.com/cases/federal/us/588/17-1717/
Primary Holding
Although a war memorial, erected in the form of a Latin cross, may have originally served a purpose infused with religion, the passage of time may obscure that sentiment and the monument may be retained for the sake of its historical significance or its place in a common cultural heritage. (A Latin cross located on public land with historic use as a War Memorial is not unconstitutional.)