Establishment Clause Freedom of Religion

Cases related to public schools soon dominated Establishment Clause court decisions. In the Warren and Burger Courts of the 1960s and 1970s the Court more fully defined the separation of church and state. Activities publicly accepted since public schools began operation in the United States in the mid-nineteenth century became prohibited. In 1962 the issue of officially sponsored prayer in public schools reached the Supreme Court. In Engel v. Vitale the Court held the encouragement by the public system of recitation of even a nondenominational prayer was "wholly inconsistent with the Establishment Clause." For a democratic society, the Court found it would be chaotic if a religion were sanctioned and then changed "each time a new administration is elected to office." On the heels of the school prayer issue was the question of Bible readings in public schools. As in Engel, the Court found that they were inappropriate activities in Abington School District v. Schempp (1963). Importantly, the Abington decision also extended the establishment prohibition to state governments through the Fourteenth Amendment. The Court further adopted state legislative intent as an important factor in weighing the possible appearance of inappropriate religious endorsements.

The subject of school curricula came before the Supreme Court in 1968 in Epperson v. Arkansas. In a revisit of the famous 1925 Scopes trial and the subject of evolution, the Court unanimously ruled a state law prohibiting the teaching of evolution violated the First Amendment because the law expressly promoted religious beliefs. Later, in 1987 the Court also ruled against a Louisiana law requiring equal treatment of the creation theory where evolution is taught because the law sought to advance a religious viewpoint.

Aside from school prayer, Bible, and curricula issues, determining when government programs improperly benefitted religious activities was still not resolved. In the Abington case the Court began to tackle this confusion by creating a "purpose and effect" test. A government action must have a "secular legislative purpose and a primary effect that neither advances nor inhibits religion" for it to be valid. The rule for identifying Establishment Clause violations was further developed in Lemon v. Kurtzman (1971). The Court created a three prong test the stated: 1) the law must have a secular (i.e., not religious) legislative purpose; 2) the law in its principle or primary effect must neither advance nor inhibit religion; and 3) the law must not foster excessive entanglement of church and state. This test became known as the Lemon test.

The Lemon test was soon applied in another public school case, Stone v. Graham (1980), involving the posting of the Ten Commandments in classrooms. The Court strongly asserted that any religion-related activities in public schools may be viewed as coercion because of the mandatory nature of attendance and the susceptibility of youth to adult influences.

Many felt the Court decisions of the 1960s and 1970s were responsive to the increasingly diverse character of the American public. Yet, sharp reactions resulted primarily from conservative Protestant groups. In reaction to the Stone decision, religious organizations sought to more fully integrate religious materials into traditional school curricula, such as history classes, so as not to stand apart as religious instruction. Several unsuccessful efforts were made to pass school prayer constitutional amendments.