Marsh v. Chambers
The Marsh case and another that soon followed, Lynch v. Donnelly (1984), drew considerable criticism and debate due to apparent inconsistency with other Supreme Court decisions. The Court had not uniformly applied the Lemon Test designed to maintain government neutrality in religious matters, totally ignoring it in Marsh. Many advocates of a firm separation of church and state tried to limit the implications of this decision by asserting that the historical-based analysis used is unique to the legislative prayer question, as did Brennan in his dissent. Some became alarmed that, despite the Establishment Clause, the trend in the 1980s and 1990s was toward greater inclusion of religion in public programs. The Marsh decision served to further focus debate on the Establishment Clause and to what extent government action constitutes endorsing official religious belief.
Regarding the use of standard Establishment Clause tests by the Court, many justices believed the Lemon Test is too strict and difficult to apply consistently in all cases, specifically those in which tradition is a strong factor. Following Marsh, two other tests were offered by Supreme Court justices. Justice O'Connor created the Endorsement Test in 1984 to better evaluate the effect element in the Lemon Test. It seeks to determine if some plausible secular justification for a law exists and if the legislation actually endorses a religion. Unacceptable endorsement occurs when certain persons, such as religious minorities, are not treated as full members of a political community. In 1989 Justice Kennedy offered the Coercion Test. The test asserts that the Establishment Clause is violated only when a statute coerces an individual into accepting a particular religious doctrine. These two tests still require subjective determinations as demonstrated in County of Allegheny v. ACLU. In addition, law scholars consider the Coercion Test inconsistent with the intent of the First Amendment by ignoring unintended and more subtle restrictions on religious practice that regularly occur. Though the Lemon Test has been regularly criticized and even ignored, as in Marsh, no better test has been developed.
The Court stimulated further debate over the role of religion in government by accepting legislative prayer. The debate at times focused on the concept of "ceremonial deism." Deism is the belief in existence of a Supreme Being worthy of adoration. Ceremonial deism then means a more secular use of religious concepts in maintaining civil order in a society, as part of a civil religion. Other examples of ceremonial deism related to government action in the United States include invocations in courts, observance of Thanksgiving, the national motto "In God We Trust," the words "under God" in the Pledge of Allegiance, use of "in the year of our Lord" to date public documents, prayers in Presidential inaugurations, use of the Bible to administer oaths, and a National Day of Prayer. Protection of these uses from the Establishment Clause has been argued on the grounds that any particular religious meaning has been largely lost through their rote repetitious use in public. Thus they serve wholly secular purposes for inspiring commitment, celebrating patriotic values, and infusing a solemn context. They are not part of specific religious practice. Many believe ceremonial deism plays an integral role in preserving the integrity of civil society. Therefore, they believe such general public use of religious concepts should be exempt from Establishment Clause scrutiny. The Court still struggles over the issue of ceremonial deism and how to best accommodate it in the U.S. constitutional framework while prohibiting other religious practices.
Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1981 to 1988Marsh v. Chambers - Significance, Is There An American Civil Religion?, A Nation In Change, Impact, Further Readings