Summary article (2023-08-13) in Vox by Ian Millhiser.


Arc of 1st Amendment Establishment Clause Jurisprudence

Key Questions:


American Legion v. American Humanist Association (2019)
Secularized meaning to Bladensburg Cross.
With the passage of time use of religious symbols becomes presumptively Constitutional.
Lemon Test discarded.
Van Orden v. Perry (2005)
no single mechanical formula that can accurately draw the constitutional line
a mixed but primarily nonreligious purpose based upon the "context of the display" and the "circumstances surrounding the display’s placement"
long history of usage [40 years].
Agostini v. Felton (1997)
Modified Lemon Test:
Is the policy’s primary effect the advancement of religion?
Even if not, is there a religious motive behind the policy?
Lee v. Weisman (1992)
Coercion Test (Kennedy):
Constitution protects individuals from state coercion
directly: force of law and threat of penalty
indirectly: high school graduation those who attended would be psychologically coerced into approving of a religious practice to which they might object:
Lynch v. Donnelly (1984)
Endorsement Test (O’Connor, concurring):
Does the government “intend” to endorse religion?
Does the government activity in fact “convey” such an endorsement?
Lemon v. Kurtzman (1971)
Lemon Test:
legitimate secular purpose, (intent) from Abington School District v. Schempp (1963)
does not have the primary effect of either advancing or inhibiting religion, (effect) from Board of Education v. Allen (1968) and
does not result in an excessive entanglement of government and religion from Walz v. Tax Commission (1970).
Engel v. Vitale (1962)