Referenced Cases



Lemon v. Kurtzman,
Earley v. DiCenso
Robinson v. DiCenso

Facts of the Case:
These three cases from Pennsylvania and Rhode Island involved public assistance to private schools, some of which were religious. Pennsylvania's law included paying the salaries of teachers in parochial schools, assisting the purchasing of textbooks, and other teaching supplies. In Rhode Island, the State paid 15% of the salaries of private school teachers. A federal court upheld the Pennsylvania law while a District Court ruled that the Rhode Island law fostered 'excessive entanglement'.

The Court unanimously (8-0) determined that the assistance was unconstitutional.

Majority Opinion: (Justice Burger)
In Lemon v. Kurtzman (1971), the Court created a three-part test for laws dealing with religious establishment. This determined that a law was constitutional if it:


1.    Had a secular purpose

2.    Neither advanced nor inhibited religion

3.    Did not foster an excessive government entanglement with religion.


The two statutes in question violate the third of these criteria. The teachers whose salaries are being partially paid by the State are religious agents who work under the control of religious officials. There is an inherent conflict in this situation of which the state should remain clear. To ensure that teachers play a non-ideological role would require the state to become entangled with the church. Allowing this relationship could lead to political problems in areas in which a large number of students attend religious schools.

Instituted the Lemon test for analyzing statutes relating to church-state interact.


2014 - Town of Greece v. Galloway

Facts of the case

The town of Greece, New York, is governed by a five-member town board that conducts official business at monthly public meetings. Starting in 1999, the town meetings began with a prayer given by an invited member of the local clergy. The town did not adopt any policy regarding who may lead the prayer or its content, but in practice, Christian clergy members delivered the vast majority of the prayers at the town's invitation. In 2007, Susan Galloway and Linda Stephens complained about the town's prayer practices, after which there was some increase in the denominations represented.

In February 2008, Galloway and Stephens sued the town and John Auberger, in his official capacity as Town Supervisor, and argued that the town's practices violated the Establishment Clause of the First Amendment by preferring Christianity over other faiths. The district court found in favor of the town and held that the plaintiffs failed to present credible evidence that there was intentional seclusion of non-Christian faiths. The U.S. Court of Appeals for the Second Circuit reversed and held that the practices violated the Establishment Clause by showing a clear preference for Christian prayers.


Does the invocation of prayer at a legislative session violate the Establishment Clause of the First Amendment even in the absence of discrimination in the selection of prayer-givers and content?

Decision 5-4

No. Justice Anthony Kennedy delivered the opinion for the 5-4 majority. The Court held that the context and jurisprudence surrounding the First Amendment suggested that the Establishment Clause was never meant to prohibit legislative prayer, which created the proper deliberative mood and acknowledged religion's role in society. The content of this prayer does not need to be non-sectarian, because such a requirement would place the courts in the role of arbiters of religious speech, which would involve the government in religion to an extent that is impermissible under the Establishment Clause. The Court thus held that the prayers in question do not violate this tradition and are therefore acceptable under the First Amendment. Justice Kennedy further argued that legislative prayer is primarily for the members of the legislative body, and therefore such prayers do not coerce the public into religious observance. Though the respondents testified that they felt offended by these prayers, Justice Kennedy distinguished between offense and coercion and noted that the former does not violate the Establishment Clause. Justice Antonin Scalia and Justice Clarence Thomas did not join in this portion of the opinion.

In his concurring opinion, Justice Samuel A. Alito, Jr. wrote that there is a long tradition of constitutionally permissible legislative prayer and that such prayer need not be non-sectarian, especially when such a requirement would place the government in the position of policing prayer. Justice Thomas wrote a separate opinion concurring in part and concurring in the judgment in which he argued that the Establishment Clause should be read as a federalist provision that protected states' rights rather than individual rights.

Justice Stephen G. Breyer wrote a dissent in which he argued that, as the Court of Appeals held, the Town of Greece must do more to make its legislative prayer inclusive of other faiths. Despite the fact that the town is not exclusively Christian, the town made no significant effort to inform non-Christian clergy about the possibility of delivering an invocation, and in doing so, marginalized religious minority populations. Justice Elena Kagan wrote in a separate dissent that the town's failure to represent a variety of religions in its meetings amounted to the unconstitutional preference of one religion over others. To do so in a public forum where people come to participate in the political process forces individuals who do not agree with the beliefs represented in the prayer to either acquiesce or visibly make their dissent known. Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Breyer joined in the dissent.


2005 – 10 Commandments - Van Orden v.Perry


Facts of the case

Thomas Van Orden sued Texas in federal district court, arguing a Ten Commandments monument on the grounds of the state capitol building represented an unconstitutional government endorsement of religion. Orden argued this violated the First Amendment's establishment clause, which prohibits the government from passing laws "respecting an establishment of religion." The district court and the Fifth Circuit Court of Appeals ruled against Orden and said the monument served a valid secular purpose and would not appear to a reasonable observer to represent a government endorsement of religion.



Does a Ten Commandments monument on the grounds of a state capitol building violate the First Amendment's establishment clause, which barred the government from passing laws "respecting an establishment of religion?"




No. In 5-4 decision, and in a four-justice opinion delivered by Chief Justice William H. Rehnquist, the Court held that the establishment clause did not bar the monument on the grounds of Texas' state capitol building. The plurality deemed the Texas monument part of the nation's tradition of recognizing the Ten Commandments' historical meaning. Though the Commandments are religious, the plurality argued, "simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the establishment clause."



2010 - Salazar v.Buono


Facts of the case

In 1934, the Veterans of Foreign Wars built a wooden cross on top of Sunrise Rock in the Mojave National Preserve (Preserve) as a memorial to those who died in World War I. The original cross no longer exists, but has been rebuilt several times. Frank Buono, a former Preserve employee, filed suit in a California federal district court seeking to prevent the permanent display of the cross. The genesis of his suit occurred in 1999 when a request to build a Buddhist shrine in the Preserve, near the cross, was denied. He argued that the cross' display on federal property violated the Establishment Clause of the First Amendment. The district court agreed and the cross was covered.

While the case was pending, Congress designated Sunrise Rock a national memorial and barred its dismantling with the use of federal funds. One year later, by land swap, Congress made Sunrise Rock private property in exchange for another parcel of land. Mr. Buono moved to not only enforce the previous court order preventing the display of the cross, but also to prohibit the land swap. The district court granted both motions. The Secretary of the Interior appealed, arguing that the district court abused its discretion.

On appeal, the U.S. Court of Appeals for the Ninth Circuit held that the district court did not abuse its discretion. The court reasoned that the government failed to show that the district court's fact findings or legal standards were clearly erroneous, nor did it show that the district court made an error in judgment.


1) Can Mr. Buono's suit be maintained when he is merely offended by the fact that public land on which a cross is displayed is not a forum for other religious symbols?

2) Did the U.S. Court of Appeals for the Ninth Circuit err in not giving effect to Congress's land swap where Sunrise Rock was made private land?

Decision  5-4

Yes. Yes. The Supreme Court reversed the Ninth Circuit. With Justice Anthony M. Kennedy writing for the plurality, the Court held that Mr. Buono has standing to maintain this action. Justice Kennedy reasoned that when a party obtains a judgment in its favor, like Mr. Buono, it acquires a "judicially cognizable" interest in ensuring compliance with that judgment. The plurality also held that the district court erred in preventing the government from implementing the land-transfer statute in order to protect Mr. Buono's rights. A court may not order an injunction when it fails to consider all the circumstances bearing on the need for preventive relief. The district court failed to consider the context in which the land-transfer statute was enacted. Justice Kennedy concluded that upon remand the court should conduct a proper inquiry into the continued need for preventive relief in light of the statute.

Justice Samuel A. Alito wrote separately, concurring in part and concurring in the judgment. The district court should not reach the issue whether the implementation of the land-transfer statute would violate the district court's injunction or the Establishment Clause of the First Amendment. Justice Antonin G. Scalia, joined by Justice Clarence Thomas, also wrote separately, concurring in the judgment. Mr. Buono lacked standing; and therefore, the Supreme Court should not have addressed the merits of his claim. Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg and Sonia Sotamayor, dissented. The district court was correct in preventing the enforcement of Congress' land-transfer statute because the statute was designed to leave the cross in place thus violating the Establishment Clause.