Stone v. Graham

Determining what degree of government action constitutes unlawful promotion of religious belief in the classroom has long been debated. In the 1963 Abington School District v. Schempp case, the Supreme Court established that government actions must have a "secular legislative purpose and a primary effect that neither advances nor inhibits religion" to not violate the Establishment Clause. This "purpose and effect" test was later merged with the concept of "entanglement" in the 1971 Lemon v. Kurtzman case to create the three-part Lemon test. The Lemon test asks three questions: (1) is the purpose of the legislation secular or religious; (2) does the primary effect of the legislation favor a particular religion, and (3) does the legislation result in excessive "entanglement" of the government. Entanglement refers to the degree of control and involvement the government finds itself having in a religious activity. The courts have defined three levels of government "favoritism" to determine the effect legislation poses: coercion, endorsement, and acknowledgment. The Supreme Court has consistently considered most religious-oriented activities in public school classrooms as coercion because school attendance is mandatory and children are particularly impressionistic, and hence are more susceptible to influence than adults. Rulings on the Establishment Clause are based on application of this test. Inclusion of Abington for legislative purpose, as a separate measure of constitutionality, substantially increased the range of government actions potentially violating the Establishment Clause.

The Supreme Court, in applying the Lemon test to determine if the Kentucky law was permissible under the Establishment Clause, came to a different conclusion than the two lower courts. In a majority opinion unsigned by the five justices, a 5-4 vote found the Kentucky law had no secular legislative purpose despite Kentucky's asserting the non-religious intent written in the law itself and in the disclaimer on each posting. The majority wrote that the "preeminent purpose [was] plainly religious" because the "Ten Commandments are undeniably a sacred text in Jewish and Christian faiths, and no legislative recital of a supposed secular purpose can blind us to that fact." The Court found the Ten Commandments had not been integrated into a school curriculum for purposes of study in history, civilization, ethics, or comparative religion. Hence, the posting served no valid public educational function. The majority also found that even though the copies of the Ten Commandments were purchased with private monies, public funds were still spent in administering the statute itself and that constituted excessive entanglement.