First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As under the purpose prong, the government may generally accommodate religious activity without violating Lemon's effect prong.1 For example, in 1987, the Supreme Court rejected a constitutional challenge to a provision in the Civil Rights Act of 1964 that exempted religious organizations from certain employment discrimination provisions.2 While the Court acknowledged that the exemption “single[d] out religious entities for a benefit,” it nonetheless concluded that the Establishment Clause allowed the accommodation, given that the government had “act[ed] with the proper purpose of lifting a regulation that burdens the exercise of religion.” 3

The Court has also warned, however, that “[a]t some point, accommodation may devolve into ‘an unlawful fostering of religion.’” 4 Two years earlier, the Court had ruled unconstitutional a state law that barred employers from requiring employees to work on any day that the employee observed as the Sabbath.5 By giving employees “an absolute and unqualified right not to work on whatever day they designate as their Sabbath,” the Court said the law’s “primary effect . . . impermissibly advance[d] a particular religious practice.” 6 In implicit contrast to the Sunday Closing law approved in McGowan v. Maryland,7 the law specifically referred to the “Sabbath,” a religious term, and did not create a common day of rest.8 This law granting an “unyielding weighting in favor of Sabbath observers” could be seen as an example of an impermissible accommodation.9

Two other examples further illustrate when laws crossed the line from permissible accommodation to impermissible advancement of religion.10 In Larkin v. Grendel’s Den, the Court held that a state law giving “churches and schools the power effectively to veto applications for liquor licenses within a 500-foot radius” violated the Establishment Clause.11 According to the Court, the law had the impermissible effect of advancing religion: the veto power could be “employed for explicitly religious goals” and the “joint exercise of legislative authority . . . provide[d] a significant symbolic benefit to religion.” 12 Similarly, in Board of Education of Kiryas Joel Village School District v. Grumet, the Court said that a state had violated the Establishment Clause by drawing a school district that “divide[d] residents according to religious affiliation.” 13 The Court believed that the inhabitants of the school district did not merely happen to be “united by common doctrine,” but instead said that the state intentionally limited the district to a specific sect, giving that religious group “exclusive control of the political subdivision.” 14 This went beyond the bounds of a permissible accommodation by “singl[ing] out a particular religious sect for special treatment” —the “unconstitutional delegation of political power.” 15

Footnotes

1

Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334–35 (1987). See also Cutter v. Wilkinson, 544 U.S. 709, 713–14 (2005). Cutter held that a federal law limiting the federal government’s ability to restrict prisoners’ religious freedoms was a permissible accommodation under the Establishment Clause. Id. at 720. However, the Court clarified that it did not resolve the case under Lemon's three-part test, but “on other grounds.” Id. at 717 n.6. Its analysis relied primarily on prior Supreme Court precedent relating to religious accommodations. Id. at 720–24. For a discussion of Lemon's abandonment and the relevance of cases in this section that applied the Lemon test, see Amdt1.3.6.1 Lemon’s Purpose Prong and Amdt1.3.6.6 Endorsement Variation on Lemon.

2

Amos, 483 U.S. at 329–30.

3

Id. at 338.

4

Id. at 334–35 (quoting Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 145 (1987)).

5

Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710–11 (1985).

6

Id. at 709–10.

7

McGowan v. Maryland, 366 U.S. 420, 432 (1961); see Amdt1.3.5.3 Purpose and Effect Test Before Lemon.

8

See Caldor, Inc. v. Thornton, 464 A.2d 785, 792–93 (Conn. 1983).

9

Estate of Thornton, 472 U.S. at 710; see also Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 725 (1994) (O’Connor, J., concurring) (giving Estate of Thornton as an example of “an accommodation” that violated the Establishment Clause).

10

See, e.g., Grumet, 512 U.S. at 712 ( “The question at the heart of these cases is: What may the government do, consistently with the Establishment Clause, to accommodate people’s religious beliefs?” ).

11

Larkin v. Grendel’s Den, 459 U.S. 116, 117 (1982).

12

Id. at 125–26.

13

Grumet, 512 U.S. at 699 (plurality opinion); accord id. at 711 (Stevens, J., concurring).

14

Id. at 698 (plurality opinion). See also id. ( “[A] State may not delegate its civic authority to a group chosen according to a religious criterion.” ).

15

Id. at 706 (majority opinion).