The U.S. Supreme Court has held that, to withstand challenge under the Establishment Clause of the First Amendment, a statute ‘‘must have a secular legislative purpose’’ (Lemon v. Kurtzman). The Supreme Court has relied on the secular purpose requirement four times to invalidate a state statute.
In Epperson v. Arkansas, the Court struck down an Arkansas statute that prohibited the teaching of evolution in public schools and universities. The absence of a secular purpose was fatal to the law:
The overriding fact is that Arkansas’ law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine; that is, with a particular interpretation of the Book of Genesis by a particular religious group.
In Stone v. Graham, the Court invalidated a Kentucky statute that required public schools to post in each classroom a copy of the Ten Commandments. Because the Commandments included unquestionably religious edicts (for example, avoiding idolatry), the principal purpose of the law was ‘‘plainly religious.’’
In Wallace v. Jaffree, the Court declared unconstitutional an Alabama law that mandated a period of silence in public schools ‘‘for meditation or voluntary prayer.’’ The Court held that the law ‘‘was not motivated by any clearly secular purpose—indeed, the statute had no secular purpose.’’ The statute’s principal sponsor had said that the bill’s only purpose was religious, and no evidence to the contrary had been offered by the state. Moreover, Alabama law already mandated a moment of silence for ‘‘meditation.’’ The only conceivable purpose of the new law, therefore, was to endorse religion. ‘‘The addition of ‘or voluntary prayer’ indicates that the State intended to characterize prayer as a favored practice.’’
Edwards v. Aguillard invalidated a Louisiana statute that mandated equal treatment for evolution and ‘‘creation science’’ in public schools. Neither theory was required to be taught, but if a teacher presented one theory, he or she had to give equal attention to the other theory. As in Epperson, the Court noted the ‘‘historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution.’’ The legislative history revealed a purpose ‘‘to change the science curriculum of public schools in order to provide persuasive advantage to a particular religious doctrine that rejects the factual basis of evolution in its entirety.’’
These cases are atypical. Two examples show how deferential the Court has usually been to the state’s recitation of a secular purpose. When Sunday closing laws were challenged in McGowan v. Maryland, the Court acknowledged that these laws originally had a religious purpose and that Sunday remains a day of religious significance to many citizens. But ‘‘[t]he present purpose and effect of most of [these laws] is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals.’’ In Lynch v. Donnelly, the Court rejected an Establishment Clause challenge to a municipality’s inclusion of a traditional nativity scene as part of a larger display depicting various observances of the Christmas holiday. ‘‘The evident purpose of including the cre`che in the larger display was not promotion of the religious content of the cre`che but celebration of the public holiday through its traditional symbols.’’ In both cases, the state’s justification for its law was a thin secular rationalization for an obviously sectarian action, but the rationalization was enough to satisfy the Court.
Four major objections have been raised against the secular purpose requirement. The rubber stamp objection holds that nearly anything can satisfy the secular purpose requirement, because a secular rationale can be imagined for almost any law. The evanescence objection claims that the ‘‘purpose’’ that the rule seeks either does not exist or is not knowable by judges. Who can know for certain what lawmakers had in mind when they enacted a statute? The participation objection argues that the rule makes religious people into second-class citizens by denying them the right to participate in the legislative process. Should a law to shelter the homeless be deemed unconstitutional, this objection asks, if religious people supported it for religious reasons? The callous indifference objection holds that the secular purpose requirement, if taken seriously, would forbid the humane accommodation of religious dissenters, such as the exemption of Quakers from military service.
Whether these objections are fatal depends on how the Court resolves an ambiguity in the doctrine: does it concern the subjective purpose of the lawmakers or the objective purpose that is apparent from a reading of the statute? The latter understanding prohibits laws that have no conceivable secular purpose.
The secular purpose requirement, thus understood, follows directly from a principle at the core of the Establishment Clause: that government may not declare religious truth. Some laws signify government endorsement of a particular religion’s beliefs, and this significance is clear without any inquiry into the authors’ subjective intentions. An easy example is the Ten Commandments statute in Stone v. Graham.
This approach answers all four objections. The first three may be disposed of easily. The answer to the rubber stamp objection is that it is sometimes clear what a law is saying, and what is being said may be a claim about religious truth. The evanescence objection also fails, because the secular purpose requirement does not seek subjective legislative intent. The answer to the participation objection is that the secular purpose requirement looks at legislative outcomes rather than political inputs, so that a statute’s constitutionality is not impugned by the mere fact that some people supported it for religious reasons. The callous indifference objection is more complex, but it can be answered. Government can accommodate religion so long as it does so without favoritism, in a way that does not take any position on questions of religious truth.
References and Further Reading
- Koppelman, Andrew, Secular Purpose, Virginia Law Review 88, no. 1 (2002): 87–166.
Cases and Statutes Cited
- Abington Township v. Schempp, 374 U.S. 203 (1963)
- Edwards v. Aguillard, 482 U.S. 578 (1987)
- Epperson v. Arkansas, 393 U.S. 97 (1968)
- Lemon v. Kurtzman, 403 U.S. 602 (1971)
- Lynch v. Donnelly, 465 U.S. 668 (1984)
- McGowan v. Maryland, 366 U.S. 420 (1961)
- Stone v. Graham, 449 U.S. 39 (1980)
- Wallace v. Jaffree, 472 U.S. 38 (1985)