106 CHAPTER 4|CIVIL LIBERTIES
advanced or inhibited religion, or (3) fostered “an excessive government entangle-
ment with religion.”^51 The third part of the test was later found open to interpreta-
tion by lower courts and therefore led to confl icting rulings.
The Court started to move away from the Lemon test in a 1984 case involving
a city-owned creche that was displayed in a park owned by a nonprofi t corpora-
tion. The Court allowed the nativity display, saying, “The Constitution does not
require complete separation of church and state; it a ffi rmatively mandates accom-
modation, not merely tolerance, of all religions, and forbids hostility toward any.”^52
This “endorsement test” simply says that government action is unconstitutiona l if
a “reasonable observer” would think that the action either endorses or disapproves
of religion. Later rulings upheld similar religious displays, especially if they con-
formed to what observers have labeled the “three plastic animals rule”—if the baby
Jesus is surrounded by Rudolph the red-nosed reindeer and other secular symbols,
the overall display is considered suffi ciently nonreligious to pass constitutional
muster.^53 This picture became more muddled in 2005 when the Court said that the
Ten Commandments could not be posted in two Kentucky courthouses but could
be displayed on a monument outside the capitol in Austin, Texas. Justice Breyer
noted that Austin’s monument was one of 40 on the capitol grounds, so the dis-
play served a “mixed but primarily non-religious purpose,” whereas the Kentucky
courthouses’ displays were clearly religious.^54
The Court has also applied the accommodationist perspective to funding for
religious schools by looking more favorably on providing tax dollars to students’
families to subsidize tuition costs rather than funding the parochial schools
directly. In 2011 the Court expanded taxpayer support for religious education
when it upheld an Arizona law that provides state tax credits for contributions to
organizations that provide tuition for religious schools.^55
Another case involved a clash between the First Amendment’s free speech and
establishment clauses. The University of Virginia declined to support a Christian
newspaper because of its religious content (despite funding 118 other student orga-
nizations with a range of views), and the editor of the paper sued the university for
violating his freedom of speech. The Court ruled that free speech concerns trumped
possible establishment issues, so that refusing to fund the Christian paper while
funding so many others amounted to “viewpoint discrimination.”^56The Free Exercise Clause
While the freedom of belief is absolute, freedom of religious conduct cannot be
unrestricted. That is, you can believe whatever you want without government
interference, but if you act on those beliefs, the government may regulate your
behavior. And while the government has restricted religious conduct in dozens
of cases, the freedom of religion has been among the most consistently protected
civil liberties.
Hundreds of cases have come before the Court in the area of the free exercise
of religion. Here are some examples of the questions they addressed:^57 May Amish
parents be forced to send their children to schools beyond the eighth grade? (no);
Is animal sacrifi ce as part of a religious ceremony protected by the First Amend-
ment? (generally yes); May Mormons have multiple wives? (no); May the Amish
be compelled to follow traffi c laws and put license plates on their buggies? (yes);