• Key point 13-01.1. The most commonly applied test for evaluating the validity of a law of government practice under the First Amendment’s nonestablishment of religion clause is the three-part “Lemon” test. Under this test, a law or government practice that conveys some benefit on religion will be constitutional if it (1) has a clearly secular purpose; (2) has a primary effect that neither advances nor inhibits religion; and (3) does not foster an excessive entanglement between church and state. All three parts of the test must be met in order for the law or practice to be constitutional. The Supreme Court has recognized limited exceptions to this test.
The Establishment Clause

* A federal appeals court ruled that inscribing the national motto “In God We Trust” on a government building did not constitute an unconstitutional “establishment” of religion. Two attorneys sued a county government for violating the First Amendment’s ban on the establishment of religion. They argued that the county had unconstitutionally inscribed the national motto, “In God We Trust,” on a government building. A federal district court dismissed the lawsuit, and the attorneys appealed.

A federal appeals court used the so-called “Lemon test” in evaluating the constitutionality of the inscription. The Lemon test comes from a 1971 decision of the Supreme Court in which it ruled that a law or practice does not violate the establishment clause if it (1) has a secular legislative purpose; (2) has a principal or primary effect that neither advances nor inhibits religion; and (3) does not foster an excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602 (1971). The court concluded that all three of these factors were satisfied, and therefore the inscription was constitutionally permissible. With regard to the first factor, the court noted that both secular and religious aspects of the display were discussed at the county board meeting in which the inscription was approved. It continued, “A legitimate secular purpose supporting a challenged governmental action will suffice to satisfy the Lemon test’s first prong. And, as we have previously observed, the demonstration of such a legitimate secular purpose is a fairly low hurdle. Indeed, we will deem the first prong to be contravened only if the action is entirely motivated by a purpose to advance religion.”

The court also ruled that the second factor was met (a primary effect that neither advances nor inhibits religion). It pointed out that the phrase, “In God We Trust,” when used as the national motto on coins and currency, had been described by other courts as a “patriotic and ceremonial motto” with “no theological or ritualistic impact.” It concluded, “The use of the national motto is long-standing, and it has been used extensively over the years by the federal government. By way of example, Congress first authorized the National Mint to include ‘In God We Trust’ on coins in 1865, and made its inclusion mandatory on gold and silver coins in 1908. Its use was extended to the national currency in 1955. Importantly, Congress made ‘In God We Trust’ the national motto in 1956, and the motto is inscribed above the Speaker’s Chair in the House of Representatives, and also above the main door of the Senate Chamber.”

The court noted that the proper analysis is “whether a particular display, with religious content, would cause a reasonable observer to fairly understand it in its particular setting as impermissibly advancing or endorsing religion …. To focus exclusively on the religious component of any activity would inevitably lead to its invalidation under the First Amendment. Instead, the [Supreme Court] has consistently concluded that displays with religious content-but also with a legitimate secular use-may be permissible under the First Amendment.”

In the present case, the court concluded that a reasonable observer “must be deemed aware of the patriotic uses, both historical and present, of the phrase ‘In God We Trust.’ As a result, we are obliged to assess the board’s use of the national motto on the facade of the government building in its full context-as a statement with religious content, and as one with legitimate secular associations born of its consistent use on coins and currency, and as the national motto. The question under the Lemon test’s second prong is whether, taking these associations into account, the display’s principal or primary effect is to advance or inhibit religion; or, put differently, whether an informed, reasonable observer would view the display as an endorsement of religion.” The court concluded that the installation of the national motto on the government building “would not cause a reasonable observer to fairly understand the purpose of the message in its particular physical setting to impermissibly advance or endorse religion. A reasonable observer contemplating the inscription of the phrase on the government building would recognize it as recently installed, but also as incorporating familiar words-a phrase with religious overtones, to be sure, but also one long-used, with all its accompanying secular and patriotic connotations as our national motto and currency inscription. In this setting, we thus conclude that the county’s use of the national motto in the challenged display does not contravene the Lemon test’s second prong.”

The court also ruled that the third factor under the Lemon test (no excessive entanglement between church and state) was satisfied. It noted that the kind of excessive entanglement of government and religion precluded by Lemon is characterized by “comprehensive, discriminating, and continuing state surveillance” of religious exercise, “which is simply not present here.” The inscription on the government building “does not require pervasive monitoring or other maintenance by public authorities … nor does it require any other sort of continued and repeated government involvement with religion.”

The court acknowledged that “divisive political potential” is a concern that is associated with excessive entanglement, but only in cases where direct financial subsidies are paid to parochial schools or to teachers in parochial schools.

Application. This is a ruling by a federal appeals court that will be binding in the fourth federal circuit (Maryland, North Carolina, South Carolina, Virginia, and West Virginia). It will be persuasive precedent in other jurisdictions. However, note that the federal appeals court for the ninth circuit reached the opposite conclusion in a case involving the constitutionality of the phrase “one nation under God” in the Pledge of Allegiance. Lambeth v. Board of Commissioners, 407 F.3d 266 (4th Cir. 2005).

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