Freedom of religion 115to be voluntary (students are not required to attend their high school graduation) but in
effect are compulsory.^27 Yet the Court has upheld the practice of opening every session of
Congress with a prayer, has let stand without comment a lower-court ruling that allowed
a prayer that was planned and led by students (rather than recited as school policy) at a
high school graduation, and most recently in 2014 upheld prayers by voluntary chaplains
for town board meetings in Greece, New York.^28 The latter case was especially significant
because the legislative prayers were offered at town meetings that included residents,
unlike the previously approved prayers that were intended for the elected leaders only.Aid to Religious Organizations The Court has had an even more difficult time
coming up with principles to govern government aid to religious organizations, either
directly, through tax dollars, or indirectly, through the use of public space. One early
attempt was known as the Lemon test, after one of the parties in a 1971 case involving
government support for religious schools (Lemon v. Kurtzman). This case said that a
practice violated the establishment clause if it (1) did not have a “secular legislative
purpose,” (2) either advanced or inhibited religion, or (3) fostered “an excessive
government entanglement with religion.”^29 The third part of the test was later found
open to interpretation by lower courts and therefore led to conflicting rulings.
The Court started to move away from the Lemon test in a 1984 case involving a
crèche owned by the city of Pawtucket, Rhode Island, and displayed in a park owned
by a nonprofit corporation. The Court allowed the Nativity display, saying: “The
Constitution does not require complete separation of church and state; it affirmatively
mandates accommodation, not merely tolerance, of all religions, and forbids hostility
toward any.”^30 This “endorsement test” simply says that government action is
unconstitutional if a “reasonable observer” would think that the action either endorses
or disapproves of religion. Later rulings upheld similar religious displays, especially if
they conformed 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 sufficiently nonreligious to pass constitutional muster.^31
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 parochial schools directly.
For example, the Court upheld an Ohio school voucher program that distributed
scholarships to needy students so they could attend the Cleveland school of their choice,
including private religious schools. The Court said the program did not violate the
establishment clause because it allowed students and their families “to exercise genuine
choice among options public and private, secular and religious.”^32 Critics of the decision
pointed out that 96 percent of the students participating in the scholarship program
were enrolled in religiously affiliated schools, which amounted to state sponsorship of
religious education, something that the Court had not previously allowed. 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.^33 The Court has also ruled that it is acceptable to use federal funds to
buy computers and other educational equipment to be used in public and private schools
for “secular, neutral, and nonideological programs”^34 and tax dollars for a sign language
interpreter for a deaf student who attended a parochial school.^35The 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 governmentLemon test
The Supreme Court uses this test,
established in Lemon v. Kurtzman, to
determine whether a practice violates
the First Amendment’s establishment
clause.Full_05_APT_64431_ch04_102-147.indd 115 16/11/18 1:27 PM