Consistent with the Establishment Clause, the Supreme Court had permitted the government to fund public and private K-12 schools, so long as any direct aid was not diverted to an explicitly religious purpose. In Espinoza v. Montana Dept. of Rev., the Court held that when there is a government program with a secular purpose, such as education, the Free Exercise Clause requires that the program be available without regard to religion. Clearly the Religion Clauses have undergone a major transformation since the days of no parochial school aid whatsoever in the 1970s and 80s. So, it bears asking: What work is there still to be done by the Establishment Clause?
To begin, government cannot set out to prefer religion over nonreligion. That such a preference is a prohibited establishment seems straightforward. And it is, once one appreciates that a discretionary legislative exemption to accommodate religion is not a preference. A religious exemption is where a statute, one that imposes a regulatory burden on others similarly situated, is viewed by the Court as leaving religion alone. And government does not establish religion by leaving it alone.
Next are those difficult instances where the government maintains a symbol or other expression with religious content. Government can neither confess explicitly religious beliefs nor advocate that individuals profess such beliefs or observe such practices. However, government can speak about religion while stopping short of promoting it. Thus, the government may acknowledge the role of religion in history, literature, music, art, and the like. But controversy surrounds a government’s sponsorship of memorials, mottos, seals, pledges, and anthems that depict a general Protestantism or monotheism. Here, a majority of the Court has recently rejected the much-reviled test of Lemon v. Kurtzman (1971). In Lemon’s stead, a majority of the justices say that they will be guided by the history and understandings of the founding generation. In this regard, it is well to remember that the government can have one point of view concerning its symbol, whereas those “seeing” or “hearing” the same symbol often have a different understanding as to what is being communicated. However, as a matter of “state action” the government is held accountable only for its own messaging.
On the increase are instances where the High Court has had to resort to the rule that civil courts are prohibited from taking up questions that go to the validity, meaning, or importance of a religious belief or observance. The admonition to avoid “excessive entanglement” between church and state has become shorthand for the same rule. The religious question prohibition is but a part of a larger set of principles that are referred to as the “doctrine of church autonomy.” Emanating largely from the Establishment Clause and its ordering of church-state relations, church autonomy has its own line of cases from Watson v. Jones (1872) to Jones v. Wolf (1979), and most recently Hosanna-Tabor (2012) and Our Lady of Guadalupe (2020). This case law acknowledges a narrow but absolute protection for the internal governance of churches with respect to their control over doctrine, polity, religious functionaries, and membership. The Court has encouraged states to adopt “neutral principles of law” in intrachurch disputes over church property, not as an exception to church autonomy doctrine, but as a means of resolving the question of title while still honoring church autonomy.
Bringing up the rear in the catalogue of remaining work for the Establishment Clause is the definition of “religion” as it appears in the First Amendment. While this is a matter of great theoretical difficulty, in practice the issue almost never arises.
The integrating principle of the Court’s modern Establishment Clause case law is to minimize the role of government in influencing religious choices made by individuals and religious organizations. When religion is left by the state to be voluntary in this way, both religious belief and organized religion will wax and wane in accord with the appeal of its message and the zeal of its adherents.
Carl H. Esbeck,
After Espinoza: What's Left of the Establishment Clause?, 21 Federalist Society Review 186
Available at: https://scholarship.law.missouri.edu/facpubs/988