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.

Apart from financial aid, the Supreme Court has recognized that other types of support for religion can violate the Establishment Clause.1 Broadly considered, the Establishment Clause “forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship.” 2 Accordingly, for example, the Supreme Court has held invalid laws that required public schools to tailor their teachings to religious doctrine3 or to conduct prayers,4 as well as laws that created denominational preferences.5 The Supreme Court has also, with varied outcomes, considered Establishment Clause challenges to government actions such as the sponsorship of monuments involving religious symbols,6 the provision of textbooks, facilities, or other non-financial resources to religious schools,7 and laws attempting to accommodate religiously motivated conduct.8

As discussed elsewhere, Establishment Clause challenges to financial aid cases have primarily been analyzed under Lemon v. Kurtzman or Zelman v. Simmons-Harris, distinguishing between direct and indirect aid.9 The distinction between direct and indirect aid has not been as significant in evaluating non-financial aid.10 Supreme Court cases involving non-financial support for religion have frequently employed Lemon's three-part inquiry into purpose, effect, and entanglement,11 but have also used other types of inquiries, including looking for government endorsement or coercion, or considering historical practices.12 By 2022, the Supreme Court said it had “abandoned Lemon and its endorsement test offshoot.” 13 Instead, moving forward, the Court said the Establishment Clause “must be interpreted by ‘reference to historical practices and understandings.’” 14 There are a greater number of cases that looked to historical traditions or coercion in the context of nonfinancial aid, as compared to financial aid cases.15

Footnotes

1

See generally, e.g., Everson v. Bd. of Educ., 330 U.S. 1, 15–16 (1947).

2

Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

3

Epperson v. Arkansas, 393 U.S. 97, 106–07 (1968).

4

See Lee v. Weisman, 505 U.S. 577, 599 (1992); Engel v. Vitale, 370 U.S. 421, 424 (1962).

5

E.g., Larson v. Valente, 456 U.S. 228, 255 (1982); see generally, e.g., Gillette v. United States, 401 U.S. 437, 450 (1971) ( “[T]he Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favor the adherents of any sect or religious organization.” ).

6

Compare, e.g., Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (concluding a city’s Christmas display did not violate the Establishment Clause), with, e.g., Stone v. Graham, 449 U.S. 39, 41 (1980) (concluding a courthouse display of the Ten Commandments did violate the Establishment Clause).

7

Compare, e.g., Bd. of Educ. v. Allen, 392 U.S. 236 (1968) (rejecting an Establishment Clause challenge to a textbook lending program), with, e.g., Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 210–11 (1948) (concluding a program allowing private religious teachers to teach religion in public schools violated the Establishment Clause).

8

Compare, e.g., McGowan v. Maryland, 366 U.S. 420, 452 (1961) (rejecting an Establishment Clause challenge to laws prohibiting commercial activities on Sunday), with, e.g., Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710 (1985) (concluding a law giving workers the right not to work on their chosen Sabbath violated the Establishment Clause).

9

See Amdt1.3.4.1 Overview of Financial Assistance to Religion; Lemon v. Kurtzman, 403 U.S. 602 (1971); Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

10

See, e.g., Mitchell v. Helms, 530 U.S. 793, 818 (2000) (plurality opinion) ( “Whether one chooses to label this program ‘direct’ or ‘indirect’ is a rather arbitrary choice, one that does not further the constitutional analysis.” ); Meek v. Pittenger, 421 U.S. 349, 250 (1975) (holding that “it would exalt form over substance” to rule an indirect aid program constitutional when the program was otherwise similar to a direct aid program the Court had previously ruled unconstitutional), partially overruled by Mitchell v. Helms, 530 U.S. 793 (2000). But cf. Zelman, 536 U.S. at 649, 652–53 (citing Mitchell as a case that recognized the distinction between direct aid programs and programs involving private choice).

11

See Amdt1.3.6.1 Lemon’s Purpose Prong.

12

See Amdt1.3.6.2 Overview of Lemon’s Effect Prong.

13

Kennedy v. Bremerton Sch. Dist., No. 21-418, (U.S. June 27, 2022).

14

Id. at 23 (quoting Town of Greece v. Galloway, 572 U.S. 565, 576 (2014)).

15

See Amdt1.3.7.2 Coercion and Establishment Clause Doctrine; Amdt1.3.7.3 Establishment Clause and Historical Practices and Tradition.