[*] Visiting Associate Professor of Law, Stetson University. B.A., University of Pennsylvania, 1955; J.D., Georgetown University, 1967. The author is indebted to George Booras and Sam Zietz for their research assistance in the preparation of this Article. Return to text.

[1] See, e.g., Reynolds v. United States, 98 U.S. 145, 163 (1878) ("[T]o suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty."); West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) ("If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in . . . religion or other matters or force citizens to confess by word or act their faith therein.") (emphasis added). See generally Sherbert v. Verner, 374 U.S. 398 (1963) (holding that state could not deny employment benefits to plaintiff because she refused to work on Sabbath day of her faith); Wisconsin v. Yoder, 406 U.S. 205 (1972) (holding that Free Exercise Clause entitled Amish to exemption from general school attendance law). Return to text.

[2] "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." U.S. CONST. amend. I.

The [First] Amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.
Abington Sch. Dist. v. Schempp, 374 U.S. 203, 217 (1963) (citation omitted).
Mr. Jefferson, in reply to an address to him by a committee of the Danbury Baptist Association, took occasion to say: "Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,. . . I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and state."
Reynolds, 98 U.S. at 164 (emphasis added) (citation omitted) (quoting Letter from Thomas Jefferson to Danbury Baptist Ass'n (Jan. 1, 1820)). See also Stephanie E. Russell, Sorting Through the Establishment Tests, Looking Past the Lemon, 60 MO. L. REV. 653, 658 n.43 (1995); 16 THE WRITINGS OF THOMAS JEFFERSON 281, 281-82 (Andrew A. Lipscomb ed., 1903). Return to text.

[3] See infra notes 6-7. Return to text.

[4] See Nat Hentoff, A Christian Nation?, WASH. POST, Feb. 17, 1996, at A25 (quoting Focus on the Family founder Dr. James Dobson's remark that "[t]he Constitution was designed to perpetuate a Christian order"); Jann Rennert, Christian Soldiers March Onward, over Passive Electorate, ARIZ. REPUBLIC, Oct. 15, 1995, at F1 (reporting that Christian Coalition conference attendees "were told they are 'persecuted' right here in their 'Christian nation' "). Such sentiments are not limited to extremist elements. The Oklahoma Republican Party adopted a platform at its 1996 convention declaring that the United States was founded as a Christian nation and that all law should be based upon Christian values. Tom Teepen, If Republicans Get Their Way, Pray for the Children, ATLANTA J. & CONST., July 21, 1996, at 2F. Return to text.

[5] See Bill Broadway, Schism Over School Prayer: Two GOP-Proposed Constitutional Amendments Reflect Split in Conservative Thinking, WASH. POST., Dec. 2, 1995, at B7. Return to text.

[6] H.R.J. Res. 121, 104th Cong., 1st Sess. (1995). Rep. Henry J. Hyde (R. Ill.) introduced the amendment on November 15, 1995. It provides: "Neither the United States nor any State shall deny benefits to or otherwise discriminate against any private person or group on account of religious expression, belief, or identity; nor shall the prohibition on laws respecting an establishment of religion be construed to require such discrimination." Id. Rep. Hyde consulted with famed accommodationist Professor Michael McConnell to help draft this new amendment, which would allow for government funding of religious organizations. Broadway, supra note 5, at B7. Return to text.

[7] H.R.J. Res. 127, 104th Cong., 1st Sess. (1995). Rep. Ernest J. Istook, Jr. (R. Okla.) introduced the amendment less than two weeks after the introduction of the Religious Equality Amendment. The Religious Liberties Amendment provides:

To secure the people's right to acknowledge God according to the dictates of conscience: Nothing in this Constitution shall prohibit acknowledgments of the religious heritage, beliefs, or traditions of the people, or prohibit student-sponsored prayer in public schools. Neither the United States nor any State shall compose any official prayer or compel joining in prayer, or discriminate against religious expression or belief.
Id. Return to text.

[8] Constitutional scholars, including Douglas Laycock, have warned that the Religious Equality Amendment is only a " 'school prayer' amendment in disguise." Janan Hanna, Proposal Seeks 'Religious Equality'; 1st Amendment Would Be Redefined, CHI. TRIB., Dec. 10, 1995, at C1. The Religious Liberties Amendment, on the other hand, shuns any such disguise; its explicit goal is to restore prayer in schools. Katharine Q. Seelye, Proposed Prayer Amendment Splits the Right, N.Y. TIMES, Nov. 22, 1995, at D18. A spokesman for Americans United for Separation of Church and State has described the Religious Liberties Amendment as "essentially repeal[ing] the First Amendment's Establishment Clause." Id. Return to text.

[9] 403 U.S. 602 (1971). Lemon laid out a three-part test: "First, the statute must have a secular legislative purpose; second, its principle or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement with religion.' " Id. at 612-13 (citations omitted). See generally Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970). Return to text.

[10] Justices O'Connor, Scalia, Kennedy, Thomas, and Chief Justice Rehnquist have all expressed dissatisfaction with the Lemon test. See, e.g., Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 114 S. Ct. 2481 (1994) (Scalia, J., dissenting) (remarking that "in many applications [the Lemon test] has been utterly meaningless"); County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 656 (1989) (Kennedy, J., concurring in part and dissenting in part) (stating that Lemon test should not be Court's "primary guide" in its Establishment Clause jurisprudence); id. at 623 (O'Connor, J., concurring) (preferring "endorsement test" over Lemon test); Wallace v. Jaffree, 472 U.S. 38, 112 (1985) (Rehnquist, J., dissenting) (stating that Lemon "has no basis in the history of the amendment it seeks to interpret"). See also discussion infra part IV. Return to text.

[11] Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. CHI. L. REV. 115, 134 (1992) ("The ideology of secular liberalism, while still strong among the American elite, has lost its position of unquestioned dominance."). Return to text.

[12] Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. CHI. L. REV. 195, 203 (1992) (observing that while recent U.S. Supreme Court decisions have tolerated some official sponsorship of religion, "even this much accommodation of religion in public life is not enough, however, for some members of the Court"). Return to text.

[13] Id. at 195-96; McConnell, supra note 11, at 134-35. Return to text.

[14] The Supreme Court has voiced the very same concern:

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular . . . form of religious services.
Engel v. Vitale, 370 U.S. 421, 429 (1962). In addition to obvious abuses, such as those which took place in Nazi Germany from 1933 to 1945 and during the Spanish Inquisition in the late fifteenth century, the events in Bosnia-Herzegovina are a more recent example of such horrors. See John F. Burns, 500 Muslims Driven by Serbs Through a Gauntlet of Terror, N.Y. TIMES, Oct. 2, 1992, at A1. Return to text.

[15] "While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs." Abington Sch. Dist. v. Schempp, 374 U.S. 203, 226 (1963). Return to text.

[16] "Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs." Engel, 370 U.S. at 429. Return to text.

[17] U.S. CONST. amend. I. Return to text.

[18] The Establishment Clause has been used to prevent many types of entanglements between church and state. See Lemon v. Kurtzman, 403 U.S. 602, 625 (1971) (finding allocation of state funds to religion-affiliated schools for secular subjects unconstitutional due to excessive entanglement); Schempp, 374 U.S. at 223 (deciding that daily Bible reading and reciting of the Lord's Prayer in public schools is unconstitutional); Engel, 370 U.S. at 424 (holding official school prayer unconstitutional as a government-sponsored religious activity). Return to text.

[19] Russell, supra note 2, at 659 n.45. Return to text.

[20] Id. at 660 n.53. Return to text.

[21] See Rosenberger v. Rector of the Univ. of Virginia, 115 S. Ct. 2510, 2525 (1995); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8 (1993); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 391 (1993); County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 623 (1989). Return to text.

[22] The cases have ranged from activities that have entailed heavy involvement, such as direct readings from the Bible, see Schempp, 374 U.S. at 223, and use of a state-created school prayer, see Engel, 370 U.S. at 424, to activities with a lesser degree of involvement. For example, in Lamb's Chapel, the Court held that the use of public school facilities to show a religious film was constitutional. 508 U.S. at 395. The Court also has found unconstitutional the use of public funds to help build colleges and universities with religious affiliations because such use did not primarily advance religion and had a secular purpose. Roemer v. Board of Public Works, 426 U.S. 736, 762-66 (1976). Return to text.

[23] See Lee v. Weisman, 505 U.S. 577, 595-97 (1992). The potential influence in a school environment is much greater because of the amount of control faculty members and administrators exert upon the students, as well as the ability to limit the movement of students during religious exercises. Id. at 597. The Lee Court compared this to an invocation offered at the opening of a state legislative session, where the participants were adults who were free to come and go with little comment. Id. (citing Marsh v. Chambers, 463 U.S. 783, 792 (1983)). Return to text.

[24] See Bauchman ex rel. Bauchman v. West High Sch., 906 F. Supp. 1483 (D. Utah 1995) (Bauchman III); Bauchman ex rel. Bauchman v. West High Sch., 900 F. Supp. 254 (D. Utah 1995) (Bauchman II); Bauchman ex rel. Bauchman v. West High Sch., 900 F. Supp. 248 (D. Utah 1995) (Bauchman I). Return to text.

[25] Bauchman II, 900 F. Supp. at 261. Return to text.

[26] See Walz v. Tax Comm'n, 397 U.S. 664 (1970); Board of Educ. v. Allen, 392 U.S. 236 (1968); Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963); Everson v. Board of Educ., 330 U.S. 10 (1947); see also Sease v. School District, 811 F. Supp. 183 (E.D. Pa. 1993); Bowen v. Kendrick, 487 U.S. 589 (1988); Edwards v. Aguillard, 482 U.S. 578 (1987); Florey v. Sioux Falls Sch. Dist. 49-5, 619 F.2d 1311 (8th Cir. 1980); Return to text.

[27] Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). Return to text.

[28] Bauchman I, 900 F. Supp. at 249-50 (D. Utah 1995). Return to text.

[29] Id. at 249; Andrea Stone, Jewish Teen Stands Against Utah Choir's Christian Tone, USA TODAY, Nov. 2, 1995, at A4. Return to text.

[30] Stone, supra note 29, at A4. Return to text.

[31] The A'Cappella choir repertoire consisted of such Christian devotionals as "Friends," "The Lord Bless You and Keep You," and "Advent Gift." Bauchman ex rel. Bauchman v. West High Sch., 900 F. Supp. 254, 259-61 (D. Utah 1995); Stone, supra note 29, at A4. Return to text.

[32] For example, the lyrics of "Advent Gift" are:

Lord, come to the manger, I wait for your birth;
Now come Savior Jesus and bless all the earth; The heavens rejoice for your coming is nigh; All glory and honor to You, Lord most high. Stone, supra note 29, at A4. Another lyric proclaims, "We glorify thee, God of Hosts. We love thee and exalt thee." Bauchman II, 900 F. Supp. at 260. Return to text.

[33] Bauchman II, 900 F. Supp. at 260. Return to text.

[34] Id. Return to text.

[35] Id. For example, performances were held in The Church of the Madeleine (Roman Catholic), the First Presbyterian Church, and Temple Square (The Church of Jesus Christ of Latter-Day Saints). Return to text.

[36] William Raspberry, Avoidable Ugliness, WASH. POST, Nov. 8, 1995, at A17; see also Samuel A. Autman, Bauchman Refiles West High Civil Rights Suit; It Includes Statements from Ex-Students on Actions of Choirmaster, SALT LAKE CITY TRIB., Sept. 27, 1995, at D2. Return to text.

[37] Stone, supra note 29, at A4. Return to text.

[38] Bauchman II, 900 F. Supp. at 260. Return to text.

[39] Id. Return to text.

[40] Id. Return to text.

[41] See Bauchman ex rel. Bauchman v. West High Sch., 900 F. Supp. 248, 249 (D. Utah 1995). Return to text.

[42] Bauchman II, 900 F. Supp. at 260. Return to text.

[43] Id. Return to text.

[44] Id. Return to text.

[45] Id. Return to text.

[46] Id. at 260-61. Return to text.

[47] Id. at 261. Return to text.

[48] Stone, supra at 29, at A4. "She was called 'Dirty Jew' by other students. She was told to 'go back to Israel.' Swastikas and 'Jew Bitch' were scrawled on her student government campaign posters. Now she is afraid to walk the hallways alone." Id.; see also Kristen Moulton, Choir's Christian Tunes Sound a Note of Discord in Salt Lake City Rights: Despite Injunction, Class Sang Religious Song at Graduation, L.A. TIMES, Aug. 20, 1995, at 4. Return to text.

[49] Bauchman II, 900 F. Supp. at 261. Return to text.

[50] Id. Return to text.

[51] Id. Return to text.

[52] Id. Return to text.

[53] Id. Return to text.

[54] Laurie Goodstein, School Prayer Directive May Not Settle All Cases: Many Religious Disputes Fall in Gray Zone, WASH. POST., July 15, 1995, at A1. Return to text.

[55] Raspberry, supra note 36, at A17. Return to text.

[56] Bauchman II, 900 F. Supp. at 261; see also Cal Thomas, Graduates Get Lesson in Absurdity, DAYTON DAILY NEWS, June 14, 1995, at 11A:

The lyrics of "Friends" are, "Friends are friends forever if the Lord's the Lord of them." "May the Lord Bless You and Keep You," although deriving from the Jewish Old Testament, carries with it a Christian connotation in its arrangement and its frequent usage in Christian services. The lyrics are, "The Lord lift up the light of the his countenance upon you and give you peace. . . . Amen." Return to text.

[57] Bauchman ex rel. Bauchman v. West High Sch., 900 F. Supp. 248, 254 (D. Utah 1995). Return to text.

[58] Bauchman v. West High Sch., No. 95-4084 (10th Cir. Aug. 18, 1995). Return to text.

[59] Id. Return to text.

[60] Bauchman II, 900 F. Supp. at 261-62. It should be noted that Judge Greene ruled against Rachel in her civil contempt action that claimed Torgerson and other public school officials violated the injunction. Bauchman ex rel. Bauchman v. West High Sch., 906 F. Supp. 1483, 1494 (D. Utah 1995). That decision currently is on appeal in the Tenth Circuit. See Jennifer Skordas, Ruling: Teachers Are Not to Blame Judge; West High Teachers Not to Blame for Singing, School Officials Tried to Stop Religious Song, Ruled Not in Contempt, SALT LAKE TRIB., Nov. 28, 1995, at B1. Return to text.

[61] Bauchman II, 900 F. Supp. at 262. In addition to alleging violations of her rights under the Establishment, Free Exercise, and Free Speech Clauses of the First Amendment, Rachel also brought a claim under 42 U.S.C. § 1983 for violation of the same First Amendment rights, as well as claims under the Religious Freedom and Restoration Act, 42 U.S.C. § 2000bb (1994), and the Utah Constitution. 900 F. Supp. at 262. Return to text.

[62] Id. Return to text.

[63] See id. at 271-72. Return to text.

[64] Barett v. Tallon, 30 F.3d 1296, 1299 (10th Cir. 1994) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). Return to text.

[65] 370 U.S. 421 (1962). Return to text.

[66] 374 U.S. 203 (1963). Return to text.

[67] Engel, 370 U.S. at 422. The prayer read: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." Id. Return to text.

[68] Id. at 423. Return to text.

[69] Id. at 438 (Douglas, J., concurring). Return to text.

[70] Id. Return to text.

[71] Id. at 423. Return to text.

[72] Id. Return to text.

[73] Id. at 424-25. Return to text.

[74] Id. at 425. Return to text.

[75] Id. at 430. Return to text.

[76] Id. at 431. Return to text.

[77] Id. at 436. James Madison, the author of the First Amendment, stated:

[I]t is proper to take alarm at the first experiment on our liberties. . . . Who does not see . . . . [t]hat the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

Id. (quoting James Madison, Memorial and Remonstrance Against Religious Assessments, in 2 WRITINGS OF MADISON 183, 185-186 (Gaillard Hunt ed., 1900)). Return to text.

[78] 374 U.S. 203 (1963). Return to text.

[79] Id. at 205. Return to text.

[80] Id. at 206 n.1. Return to text.

[81] Id. Return to text.

[82] Readings came from many versions of the Bible, and the Jewish Holy Scriptures. The school only offered the King James version of the Bible, which it gave to every teacher in the district. Id. at 207. Return to text.

[83] Id. The Lord's Prayer is:

Our Father which art in heaven, Hallowed be thy name.

Thy kingdom come, Thy will be done in earth, as it is in heaven.

Give us this day our daily bread.

And forgive us our debts, as we forgive our debtors.

And lead us not into temptation, but deliver us from evil: For thine is the kingdom, and the power, and the glory, for ever. Amen.

Matthew 6:9-13 (King James). Return to text.

[84] Schempp, 374 U.S. at 208 n.3. Return to text.

[85] Id. at 206. Return to text.

[86] Id. at 210. Return to text.

[87] Id. Return to text.

[88] 330 U.S. 1 (1946). Return to text.

[89] Schempp, 374 U.S. at 217 (quoting Everson, 330 U.S. at 31-32 (Rutledge, J., dissenting)). Return to text.

[90] 374 U.S. at 215 (citation omitted). Return to text.

[91] Id. at 224. Return to text.

[92] Id. at 226. Return to text.

[93] 403 U.S. 602 (1971). Return to text.

[94] Id. at 612. Return to text.

[95] 392 U.S. 236 (1968). In Allen, the Supreme Court upheld a New York statute that required school districts to purchase and loan school textbooks, free of charge, to all students in grades seven through twelve, including parochial, public, and private school attendees. Id. at 238. Writing for the majority, Justice White concluded that the statute was constitutional because it was not a "law respecting an establishment of religion or prohibiting the free exercise thereof." Id. at 238. Return to text.

[96] 397 U.S. 664 (1970). In Walz, a property owner sought to enjoin the New York Tax Commission from giving tax exemptions on real property wholly owned and used by religious organizations. Id. at 666. The Supreme Court, in an opinion by Justice Burger, found that the statute did not attempt to establish, sponsor, or support religion. Id. at 673-74. Return to text.

[97] Lemon, 403 U.S. at 612 (citing Allen, 392 U.S. at 243). Return to text.

[98] Id. at 613. Return to text.

[99] Id. at 615 (citing R.I. GEN. LAWS § 16-51-1 (1970)). Return to text.

[100] Lemon, 403 U.S. at 620 (citing PA. STAT. ANN., tit. 24, §§ 5601-5609 (1971)). Return to text.

[101] Id. at 607-08. Return to text.

[102] Id. at 609. Return to text.

[103] Id. at 612. Lemon actually turned upon the excessive entanglement prong derived from Walz. See id. at 615. Return to text.

[104] See Jimmy Swaggart Ministries v. Board of Equalization of Cal., 493 U.S. 378, 392 (1990); Witters v. Washington Dep't of Serv. for the Blind, 474 U.S. 481, 490 (1986); Larson v. Valente, 456 U.S. 228, 235 (1982). Return to text.

[105] 619 F.2d 1311 (8th Cir. 1980). Return to text.

[106] Id. at 1314. Return to text.

[107] Id. Return to text.

[108] Id. at 1317. The "Christmas Quiz" contained many direct references to Christian religious beliefs:

Teacher: Of whom did heavenly angels sing [a]nd news about His birthday bring?

Class: Jesus.

. . . .

Teacher: What is the day we celebrate [a]s birthday of this One so great?

Class: Christmas.

Id. at 1318. Return to text.

[109] Id. at 1313. The committee consisted of parents, teachers, clergy of various religions, the school district's music director, and an attorney. Id. at 1313 n.1. Return to text.

[110] Id. at 1313. Return to text.

[111] Id. Return to text.

[112] Id. at 1314. Return to text.

[113] Id. Return to text.

[114] Id. Return to text.

[115] Id. at 1313. Return to text.

[116] Id. Return to text.

[117] Id. at 1314 (quoting Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)). Return to text.

[118] See supra discussion part III.A-B. Return to text.

[119] "[W]hen a state intentionally sets up a system that by its essential nature serves a religious function, one can only conclude that the advancement of religion is the desired goal." Florey, 619 F.2d at 1315. Return to text.

[120] Id. Return to text.

[121] Id. Return to text.

[122] Id. at 1317. Return to text.

[123] Id. Return to text.

[124] Id. (quoting Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)). Return to text.

[125] Id. Return to text.

[126] Id. Return to text.

[127] Id. at 1318. Return to text.

[128] Id. Return to text.

[129] This fundamental change in policy is a direct reflection of Republican appointments to the Court. See Linda Greenhouse, The Year the Court Turned to the Right, N.Y. TIMES, July 7, 1989, at A1. Return to text.

[130] 465 U.S. 668 (1984). Return to text.

[131] Id. at 671. Return to text.

[132] Id. at 671. Return to text.

[133] Id. at 685. Return to text.

[134] Id. at 680. Return to text.

[135] Id. at 681. Return to text.

[136] Id. at 681-82. Return to text.

[137] Id. at 683. Return to text.

[138] Id. at 673 (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952). The Court also reasoned that "[t]o forbid the use of this one passive symbol at the very time hymns and carols are sung and played in public places including schools, and while Congress and state legislatures open public sessions with prayers, would be an overreaction contrary to our history and to our holdings." Id. at 686. Return to text.

[139] 482 U.S. 578 (1987). Return to text.

[140] Id. at 610 (Rehnquist, C.J., dissenting) Return to text.

[141] Id. at 581. Return to text.

[142] Id. at 594. Return to text.

[143] Id. at 584. A few examples of valid references would be the teaching of religion to provide historical perspective, to illustrate comparative religious beliefs, or to highlight religion in literature. Id. at 594. Return to text.

[144] Id. at 584 n.5. Return to text.

[145] 487 U.S. 589 (1988). Return to text.

[146] Id. at 593. Return to text.

[147] Bowen, 487 U.S. at 602 (citing Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)). Return to text.

[148] Id. at 638 (Blackmun, J., dissenting). Accord Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 388 (1985); Wolman v. Walter, 433 U.S. 229, 254 (1977); Roemer v. Maryland Pub. Works Bd., 426 U.S. 736, 749 (1976) (plurality opinion); Meek v. Pittenger, 421 U.S. 349, 370 (1975); Levitt v. Committee for Pub. Educ. and Religious Liberty, 413 U.S. 472, 481 (1973). Return to text.

[149] Bowen, 487 U.S. at 626 (Blackmun, J., dissenting). For example, public funds were used to pay for the following counseling:

You want to know the church teachings on sexuality. . . . You are the church. You people sitting here are the body of Christ. The teachings of you and the things you value are, in fact, the values of the Catholic Church.

. . . .

The Church has always taught that the marriage act, or intercourse, seals the union of husband and wife, (and is a representation of their union on all levels.) Christ commits Himself to us when we come to ask for the sacrament of marriage. We ask Him to be active in our life. God is love. We ask Him to share His love in ours, and God procreates with us, He enters into our physical union with Him, and we begin new life.

Id. at 625 (Blackmun, J., dissenting) (quoting Appendix to Petitioner's Brief at 226, 372). Return to text.

[150] See Edwards v. Aguillard, 482 U.S. 578 (1987); Wallace v. Jaffree, 472 U.S. 38, 113 (1985); (Rehnquist, J., dissenting); Lynch v. Donnelly, 465 U.S. 668 (1984). Return to text.

[151] 492 U.S. 573 (1989). Return to text.

[152] Id. at 578. Return to text.

[153] Id. at 587. Return to text.

[154] Id. at 655 (Kennedy, J., concurring in part and dissenting in part). Chief Justice Rehnquist and Justices White and Scalia joined in Justice Kennedy's opinion. See id. Return to text.

[155] Id. at 637 (Brennan, J., concurring in part and dissenting in part). Justices Marshall and Stevens joined in Justice Brennan's opinion. See id. Justice Stevens also wrote an opinion concurring in part and dissenting in part, in which Justices Brennan and Marshall joined. See id. at 646. Return to text.

[156] Id. at 621. Only Justice O'Connor joined part VII of Justice Blackmun's opinion. See id. at 578. Return to text.

[157] Id. at 600. Return to text.

[158] Id. at 601. Return to text.

[159] Id. at 614. Return to text.

[160] Id. at 655 (Kennedy, J., concurring in part and dissenting in part). "The Religion Clauses do not require government to acknowledge these holidays or their religious component; but our strong tradition of government accommodation and acknowledgment permits government to do so." Id. at 664. Return to text.

[161] Id. at 655-56:

I am content for present purposes to remain within the Lemon framework, but do not wish to be seen as advocating, let alone adopting, that test as our primary guide in this difficult area. . . . [But] even the Lemon test, when applied with proper sensitivity to our traditions and our case law, supports the conclusion that both the crèche and the menorah are permissible displays in the context of the holiday season. Return to text.

[162] "[G]overnment may not coerce anyone to support or participate in any religion or its exercise." Id. at 659. Return to text.

[163] Id. at 627-28 (O'Connor, J., concurring) (citations omitted). Return to text.

[164] 465 U.S. 668, 687 (1984) (O'Connor, J., concurring). Return to text.

[165] Allegheny County, 492 U.S. at 623 (O'Connor, J., concurring). Return to text.

[166] Lynch, 465 U.S. at 687 (O'Connor, J., concurring). Return to text.

[167] Id. at 688. Return to text.

[168] Id. at 670-72. Return to text.

[169] Allegheny County, 492 U.S. at 627 (O'Connor, J., concurring) (quoting Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O'Connor, J., concurring)). Return to text.

[170] Arguably, there was a fourth test: nonpreferential treatment. In his dissenting opinion in Wallace, then-Justice Rehnquist found that the establishment of a national religion or the preference of a religious sect was forbidden by the Establishment Clause. 472 U.S. at 106 (Rehnquist, J., dissenting). However, he also found that programs that benefit or prefer one religion without hindering another were constitutional. Id. (Rehnquist, J., dissenting). Return to text.

[171] 505 U.S. 577 (1992). Return to text.

[172] Id. at 581. Return to text.

[173] Id. Return to text.

[174] Id. at 587. Return to text.

[175] Id. at 588. Return to text.

[176] See id. at 592. Return to text.

[177] "[T]he Establishment Clause must be construed in light of the '[g]overnment policies of accommodation, acknowledgment, and support for religion [that] are an accepted part of our political and cultural heritage.' " Id. at 631 (Scalia, J., dissenting) (quoting County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 657 (1989) (Kennedy, J., concurring in part and dissenting in part)). Return to text.

[178] Even Professor Michael McConnell, an ardent supporter of accommodation and free exercise, takes a very dim view of the Court's current trend:

Until recently, the Free Exercise Clause was interpreted in a manner favorable to accommodation, while the Establishment Clause was interpreted to create obstacles to accommodation. . . . The current trend in the Court is the reverse: The Free Exercise Clause no longer is interpreted to require accommodation in most instances, but the Establishment Clause no longer is interpreted to interfere with them, in most instances. This leads to a jurisprudence in which legislative discretion is maximized and the Clauses, since they are rarely applied, rarely conflict.

Michael W. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 GEO. WASH. L. REV. 685, 695-96 (1992). Return to text.

[179] 509 U.S. 1 (1993). The Rehnquist camp pressed strenuously to expand the Free Exercise Clause in two later cases, Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), and Board of Education of Kiryas Joel Village School District v. Grumet, 114 S. Ct. 2481 (1994).

In Lamb's Chapel, a school board denied a religious congregation the opportunity to use school property for the viewing of a film because of the film's religious nature. 508 U.S. at 386-87. The Court held that granting equal access to government property would not have violated the Establishment Clause test under Lemon because the activity would not have occurred during school hours, would not have been sponsored by the school, and would have been open to the public. Id. at 395.

At issue in Kiryas Joel was a state law creating a separate school district for a community of Orthodox Jews. 114 S. Ct. at 2484. The Court held that it was not the fact that the school district was comprised of solely one religious sect that violated the First Amendment, but rather that the legislature had intentionally set the school district lines in such a way as to accommodate one religious group. Id. at 2487. Notwithstanding the blatant Establishment Clause violation, Chief Justice Rehnquist and Justices Scalia and Thomas dissented, finding no constitutional infirmity. Id. at 2505 (Scalia, J., dissenting). Return to text.

[180] Zobrest, 509 U.S. at 3. Return to text.

[181] Id. at 4. Return to text.

[182] Id. at 8. Return to text.

[183] Id. at 12. Return to text.

[184] Id. at 21 (Blackmun, J., dissenting) (quoting Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 385 (1985)). Return to text.

[185] See generally Julian R. Kossow, Dolan v. City of Tigard, Takings Law and the Supreme Court: Throwing the Baby out with the Floodwater, 14 STAN. ENV. L. J. 215 (1995). Return to text.

[186] Zobrest, 508 U.S. at 15 (Blackmun, J., dissenting) ("This Court could easily refrain from deciding the constitutional claim by vacating and remanding the case for consideration of the statutory and regulatory issues."). Return to text.

[187] 115 S. Ct 2510 (1995). Return to text.

[188] Id. at 2525. Return to text.

[189] Id. at 2532. Return to text.

[190] Id. at 2533. Return to text.

[191] Id. at 2550. Return to text.

[192] Id. at 2551 (quoting Lemon v. Kurtzman, 403 U.S. 602, 624 (1971)). Return to text.

[193] See supra note 14 and accompanying text. Return to text.

[194] See supra note 23 and accompanying text. Return to text.

[195] See Lee v. Weisman, 505 U.S. 577, 598 (1992); Lemon, 403 U.S. at 625; Abington School Dist. v. Schempp, 374 U.S. 203, 303 (1963); Engel v. Vitale, 370 U.S. 421, 444 (1962). Return to text.

[196] See Doe v. Duncanville Ind. Sch. Dist., 70 F.3d 402, 407 (1995). Return to text.

[197] Lemon, 403 U.S. at 612. Return to text.

[198] Id. Return to text.

[199] Id. Return to text.

[200] 70 F.3d 402 (1995). Return to text.

[201] See discussion supra part II. Return to text.

[202] Duncanville, 70 F.3d at 404. Return to text.

[203] Id. Return to text.

[204] Id. Return to text.

[205] Id. Return to text.

[206] Id. Return to text.

[207] Id. Return to text.

[208] Id. Return to text.

[209] Id. Return to text.

[210] Id. at 406-07. Return to text.

[211] Id. at 408. Return to text.

[212] Id. at 406. Return to text.

[213] Id. Return to text.

[214] Id. Return to text.

[215] Id. Return to text.

[216] Bauchman ex rel. Bauchman v. West High Sch., 900 F. Supp. 254, 260 (D. Utah 1995). Return to text.

[217] Raspberry, supra note 36, at A17 Return to text.

[218] Bauchman II, 900 F. Supp. at 260. Return to text.

[219] Raspberry, supra note 36, at A17; see also Autman, supra note 36, at D2. Return to text.

[220] Bauchman II, 900 F. Supp. at 260-61. Return to text.

[221] Professor Nadine Strossen, president of the American Civil Liberties Union, stated in a recent symposium on the topic of religion in schools:

By the same token, for those who are non-religious, or who follow different religious traditions from those assertedly embraced in school-sponsored prayer, the exercise is equally problematic, because, as Justice O'Connor stated . . . it signals to them that they are only second-class citizens. . . . The adverse impact of government-endorsed religious exercises upon those who do not share the beliefs advanced is not just a matter of abstract constitutional theory. Its tangible damage is demonstrated by Deborah Weisman's experience. The most common question she got about her case . . . is: "Why make such a big deal out of a small prayer?" Here is Deborah's answer to that question, speaking from her own experience as a public school student: "I don't think a little prayer is a small thing. It excludes. They forced me to pray to someone else's God. That is a big deal . . . When I am forced to participate in a ritual . . . it's an attempt to make me different from what I am—to change my identity, to make me conform."

Nadine Strossen, How Much God in the Schools? A Discussion of Religion's Role in the Classroom, 4 WM. & MARY BILL RTS. J. 607, 623 (1995) (quoting telephone interview with Deborah Weisman (Sept. 6, 1995)). Return to text.

[222] See supra note 2. Return to text.

[223] 487 U.S. 589 (1988). Return to text.

[224] 505 U.S. 577 (1992). Return to text.

[225] 115 S. Ct. 2510 (1995). Return to text.