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Establishment Clause Freedom of Religion - The Lemon Test Turns Sour

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As religious activist groups became better organized, the Religious Right, led by a loose alliance of various organizations, rose in political prominence by 1980. The role of religion in America became a more visible issue. New Supreme Court appointments by presidents Ronald Reagan and George Bush led to a distinct lowering of the "wall" between church and state. The Lemon test was found by the new justices to be too inflexible and even "hostile" toward religion. Accommodation of some religious activities was no longer considered equivalent to endorsement. The test became only selectively applied to particular cases much to the consternation of those wishing to maintain a more clear distinction between church and state.

The Court found in Marsh v. Chambers (1983) that prayer led by a publicly funded chaplain to open daily sessions of state legislatures did not violate the Establishment Clause. Unlike the classroom, the justices reasoned this activity involved adults not captive to the practice. In Marsh, the Court found the use of religion and religious symbols, such as the use of a Bible in oaths, had in many instances become so integrated in peoples' daily activities that their inclusion was more of a general ceremonial nature than actual worship in a particular religious tradition. The 1984 Lynch v. Donnelly decision drew additional attention in which the Court upheld the use of religious symbols on public property.

A perspective came to dominate: Just because government may not support religion through preferential treatment, as held in Wallace v. Jaffree (1985), such neutrality does not imply an absolute prohibition. Churches and practitioners of religion could not be denied commonly available public services, such as those related to public health and safety, normally available to all. In Westside Community Board of Education v. Mergens (1990) the Court upheld the 1984 federal Equal Access Act by allowing secondary school students to hold religious club meetings on public school property during non-instructional time as long as the facilities were also available to other secular student club activities. The key distinction was that school employees could not take a active role in religious club meetings except to ensure safety. In Zobrest v. Catalina Foothills School District (1993), the Court allowed state provision of a sign language interpreter to a deaf parochial school student under the Individuals with Disabilities Education Act (IDEA). The neutrality issue surfaced again in Rosenberger v. University of Virginia (1995) in which the Court held that school funding support of a campus religious-oriented newspaper did not violate the Establishment Clause since the funding program was otherwise neutrally applied to all school organizations . In fact, withholding such funds would actually violate the Constitution's Free Speech Clause. Providing public funds to parochial schools was determined to be inappropriate, but not when funds went directly to families whose children might attend parochial school.

A line of separation still existed though in the new era. In Lee v. Weisman (1992), the Court held that invocations and benedictions at secondary school graduations constituted an endorsement of religion and thus violated the Establishment Clause. Attendance was considered obligatory and school authorities selected the clergy and controlled the content of these gatherings.

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