Order Code RS22201
July 20, 2005
CRS Report for Congress
Received through the CRS Web
The Law of Church and State: Selected
Opinions of Justice O’Connor
Angie A. Welborn
American Law Division
An examination of Justice O’Connor’s opinions interpreting the Establishment
Clause reveals that she employed different tests depending on the type of government
activity at issue. She often and rather consistently applied the so-called “endorsement
test” in cases involving government speech on religious topics, but tended to use hybrid
approaches incorporating both the test set forth in Lemon and a neutrality test in cases
involving government aid programs. The decisions show that O’Connor believed that
these cases should all be examined carefully with particular attention given to the facts
of each, and that the Court should refrain from tying itself to a single test for evaluating
Establishment Clause cases.
Justice O’Connor noted in one of her concurring opinions that “[e]xperience proves
that the Establishment Clause . . . cannot easily be reduced to a single test,” and that
different cases “may call for different approaches.”1 In cases involving “government
actions targeted at particular individuals or groups, imposing special duties or giving
benefits,” O’Connor seemed to indicate that the neutrality test should be used, while the
endorsement test would more appropriate in cases involving government speech on
religious topics.2 However, she cautioned the Court against using a single unified test for
evaluating all Establishment Clause claims, stating that such a test could “do more harm
than good” and that a single test “risks being so vague as to be useless.”3 An examination
of her opinions reveals that she viewed all of the cases as very fact-specific and required
careful consideration by the Court to determine whether an improper relationship existed
between the government and religion. The two types of cases discussed below provide
an overview of the evolution of O’Connor’s reasoning in cases involving government and
religion and is specifically focused on those interpreting the Establishment Clause.4 This
Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687, 720 (1994).
Id at 720.
Id. at 718.
Justice O’Connor wrote many opinions, mostly concurrences, in Establishment Clause cases
Congressional Research Service ˜ The Library of Congress
discussion is not exhaustive, nor should it be construed as wholly representative of the
Court’s jurisprudence regarding the relationship between government and religion.
Public Display of Religious Symbols
In Lynch v. Donnelly, the Court found that a city’s Christmas display did not violate
the Establishment Clause.5 In reaching its decision, the Court applied the three-prong test
first articulated in Lemon v. Kurtzman,6 finding that the city had a secular purpose for the
display, it did not impermissibly advance religion and it did not create an excessive
entanglement between religion and government.7 Justice O’Connor joined with the
majority, but wrote a separate concurrence criticizing the Court’s reliance on Lemon.8 In
her concurrence, O’Connor observed that “[i]t has never been entirely clear, . . . , how the
three parts of the [Lemon] test relate to the principles enshrined in the Establishment
Clause,” and instead proposed to clarify Lemon by focusing “on institutional
entanglement and on endorsement or disapproval of religion.”9 Rather than asking
whether a particular action has a secular purpose, as under the first prong of the Lemon
test, O’Connor submitted that “the proper inquiry under the purpose prong of Lemon, . .
. , is whether the government intends to convey a message of endorsement or disapproval
of religion.”10 O’Connor also questioned the Court’s prior interpretation of the “primary
effect” prong of the Lemon test, stating that it is “clear that the effect prong of the Lemon
test is properly interpreted not to require invalidation of a government practice merely
because it in fact causes, even as a primary effect, advancement or inhibition of religion,”
focusing instead on whether the practice in question has the “effect of communicating a
message of government endorsement or disapproval of religion.”11
Later in County of Allegheny v. American Civil Liberties Union, the Court found that
the display of a creche inside a county courthouse did violate the Establishment Clause
because it had “the effect of promoting or endorsing religious beliefs.”12 In Allegheny,
the Court appears to have abandoned the test set forth in Lemon in favor of the approach
and often provided the swing vote in 5-4 decisions. Each decision discussed herein was 5-4,
unless otherwise noted. This report focuses on the Establishment Clause cases simply because
most of her significant writings on religion were in that context. The Establishment Clause of
the First Amendment to the United States Constitution reads as follows: “Congress shall make
no law respecting an establishment of religion . . .” U.S. Const. amend. I.
465 U.S. 668 (1984).
403 U.S. 602 (1971).
465 U.S. at 685.
Id. at 687-694.
Id. at 688-689.
Id. at 691.
Id. at 691-692.
492 U.S. 573, 622 (1989).
that O’Connor took in her concurrence in Lynch.13 Justice Blackmun delivered the
opinion of the Court stating that “[s]ince Lynch, the Court has made clear that, when
evaluating the effect of government conduct under the Establishment Clause, we must
ascertain whether ‘the challenged governmental action is sufficiently likely to be
perceived by adherents of the controlling denominations as an endorsement, and by the
nonadherents as a disapproval, of their individual religious choices.’”14 Justice O’Connor
again joined the majority, but wrote a separate concurrence to further articulate her socalled “endorsement test.”15 In her concurrence, she wrote that “in Lynch, [she] suggested
a clarification of [the Court’s] Establishment Clause doctrine to reinforce the concept that
the Establishment Clause ‘prohibits government from making adherence to a religion
relevant in any way to a person’s standing in the political community,’” and that
“government violates this prohibition if it endorses or disapproves of religion.”16 Here,
in Allegheny, she found that “[t]he display of religious symbols in public areas of core
government buildings runs a special risk of ‘making religion relevant, in reality or public
perception, to status in the political community.’”17
Continuing her concurrence, O’Connor responded to criticism of the endorsement
test. Justice Kennedy criticized the test, saying that it was “inconsistent with [the Court’s]
precedents and traditions because . . . “if it were ‘applied without artificial exceptions for
historical practice,’ it would invalidate many traditional practices recognizing the role of
religion in our society.”18 O’Connor responded by clarifying that “[u]nder the
endorsement test, the ‘history and ubiquity’ of a practice is relevant not because it creates
an ‘artificial exception’ from that test. On the contrary, the ‘history and ubiquity’ of a
practice is relevant because it provides part of the context in which a reasonable observer
evaluates whether a challenged governmental practice conveys a message of endorsement
of religion.”19 Justice O’Connor concluded her defense of the endorsement test with the
declaration that “no alternative test has been suggested that captures the essential mandate
of the Establishment Clause as well as the endorsement test does, and it warrants
continued application and refinement.”20
In Capital Square Review and Advisory Board v. Pinette, the Court addressed the
question of whether a private, unattended display of a religious symbol in a public forum
The Court did not in this case nor in subsequent cases expressly overrule Lemon. While the
Chief Justice has questioned the “fate of the Lemon test,” the Court has continued to apply the
principles set forth in Lemon in some recent cases while rejecting it in others. See Van Orden
v. Perry, 545 U.S. ____ (2005), No. 03-1500, Slip Op. at 6 (June 27, 2005).
492 U.S. at 598, citing Grand Rapids v. Ball, 473 U.S. 373, 390 (1985).
492 U.S. at 623-637.
492 U.S. at 625, citing Lynch at 687.
Id. at 626, citing Lynch at 692.
Id. at 630.
Id. at 631.
violates the Establishment Clause.21 O’Connor joined the majority in finding that the
display of a cross by a private group in the statehouse plaza did not violate the
Establishment Clause, but wrote a separate concurrence explaining how the endorsement
test applies not only to expression by the government itself, but also to private speech that
takes place in a public forum created by the government.22 Justice O’Connor
acknowledged that “there is . . . ‘a crucial difference between government speech
endorsing religion, which the Establishment Clause forbids, and private speech endorsing
religion, which the Free Speech and Free Exercise Clauses protects,’”23 but went on to say
that the Establishment Clause “imposes affirmative obligations that may require a State,
in some situations, to take steps to avoid being perceived as supporting or endorsing a
private religious message.”24 With respect to religious speech in a public forum, the main
point of contention appears to be “the point at which the government becomes
responsible, whether due to favoritism toward or disregard for the evident effect of
religious speech, for the injection of religion into the political life of the citizenry.”25
Justice O’Connor rejected the notion that the endorsement test should focus on the actual
perception of individual observers and contended that the test “creates a more collective
standard to gauge ‘the objective meaning of the government’s statement in the
community.’”26 She also stated that the “reasonable observer” “must be deemed aware
of the history and context of the community and forum in which the religious display
Justice O’Connor’s final application of the endorsement test in this context came in
her concurring opinion in McCreary County v. American Civil Liberties Union.28 The
Court, applying Lemon’s three-prong test, determined that the display of the Ten
Commandments in several McCreary County courthouses violated the Establishment
Clause. The Court primarily focused on the “secular purpose” prong of the Lemon test,
declining the counties’ request to abandon the “secular purpose” prong of the test based
on the assertion that true “purpose” is unknowable.29 Justice O’Connor joined the
majority, but in her concurrence wrote that “[t]he purpose behind the counties’ display is
relevant because it conveys an unmistakable message of endorsement to the reasonable
515 U.S. 753 (1995). The Court’s decision was 8-1 with O’Connor joining the majority in part,
but writing a separate concurrence.
515 U.S. at 772-783, 774.
Id. at 774, citing Board of Ed. Westside Community Schools v. Mergens, 496 U.S. 226, 250
Id. at 777.
Id. at 779.
Id., citing Lynch at 690.
Id. at 780.
545 U.S. ____ (2005), No. 03-1693, (June 27, 2005).
Id. Slip Op. at 11-15.
Id. Slip Op. at 3 (Justice O’Connor, concurring).
Religion and Education
In Board of Education of the Westside Community Schools v. Mergens, the Court
held that the Equal Access Act, which requires schools to make space available to all
student groups, including those with a religious message, after regular school hours, did
not violate the Establishment Clause.31 Justice O’Connor wrote for the majority and
upheld the act based on what appears to have been a hybrid test incorporating both Lemon
and the endorsement test that she advocated in the cases discussed above. O’Connor first
noted that “the act’s prohibition of discrimination on the basis of ‘political, philosophical,
or other’ speech as well as religious speech is a sufficient basis for meeting the secular
purpose prong of the Lemon test.”32 She also noted that Congress’ stated purpose – “to
prevent discrimination against religious and other types of speech” – was also “undeniably
secular.”33 The second prong of the Lemon test was addressed not in terms of “primary
effect,” but rather in terms of endorsement. O’Connor stated that “secondary school
students are likely to understand that a school does not endorse or support student speech
that it merely permits on a nondiscriminatory basis.”34 With respect to the third prong of
the Lemon test, O’Connor rejected the argument that allowing the assignment of a teacher
or administrator to attend the meetings creates an “excessive entanglement” with the
group’s religious activities.35
The Court, in Board of Education of Kiryas Joel Village School District v. Grumet,
struck down a special state statute that carved out a separate school district for the village
of Kiryas Joel, a religious enclave of Satmar Hasidim.36 In so doing, the Court did not
apply the Lemon test, but determined that the statute violated the Establishment Clause
because it violated the “requirement of government neutrality.”37 O’Connor wrote a
concurring opinion approving of the Court’s use of the neutrality test, calling the
“emphasis on equal treatment . . . an eminently sound approach.”38 Justice O’Connor
went on to espouse the dangers of setting forth a “unitary test” for deciding all
Establishment Clause cases, stating that such a test could “do more harm than good” and
that a single test “risks being so vague as to be useless.”39 Concluding her concurrence,
she noted that “[e]xperience proves that the Establishment Clause . . . cannot easily be
reduced to a single test,” and that different cases “may call for different approaches.”40
496 U.S. 226 (1990).
496 at 248.
Id. at 249.
Id. at 250.
Id. at 253.
512 U.S. 687 (1994). The Court’s decision was 6-3 with Justice O’Connor joining the majority
in part, but writing a separate concurrence.
512 U.S. at 705.
Id. at 715.
Id. at 718.
Id. at 720.
In Rosenberger v. Rector and Visitors of the University of Virginia, the Court
rejected the University’s argument that it could not provide funds to a student newspaper
written from a Christian perspective because doing so would violate the Establishment
Clause.41 The Court based its determination on the fact that the funds were to be
distributed through the University’s Student Activities Fund (SAF), a program that
distributes funds on a religiously neutral basis, and that neutrality is a “significant factor
in upholding programs in the face of Establishment Clause attack.”42 In a concurring
opinion, Justice O’Connor wrote that “[n]eutrality, in both form and effect, is one
hallmark of the Establishment Clause,” and that “if a State refused to let religious groups
use facilities open to others, then it would demonstrate not neutrality but hostility toward
religion.”43 However, she went on to note that this case presented a special conflict
between neutrality and the prohibition on state funding of religious activities, the
resolution of which may not be possible with a single unified test.44 Justice O’Connor
concluded her concurrence with the observation that the Court did in this case “what
courts must do in many Establishment Clause cases – focus on specific features of a
particular government action to ensure that it does not violate the Constitution.”45
In Mitchell v. Helms, the Court upheld a program that provided educational materials
to both public and private elementary and secondary schools rejecting the argument that
the provision of such materials to private religious schools violated the Establishment
Clause.46 Because the lower court had determined that the program had a secular purpose
and did not create an excessive entanglement, the Court only addressed the primary effect
prong of the Lemon test.47 In determining the primary effect, the Court focused on the
“neutrality principle” whereby the Court has upheld aid that is offered to a broad range
of groups or persons without regard to their religion.48 O’Connor concurred in the
judgment, but wrote a separate opinion denouncing what she called “a rule of
unprecedented breadth for the evaluation of Establishment Clause challenges to
government school-aid programs.”49 Justice O’Connor interpreted the plurality’s
approach to mean that “government aid to religious schools does not have the effect of
advancing religion so long as the aid is offered on a neutral basis and the aid is secular in
content,” and stated her contention that while neutrality should be considered in an
Establishment Clause analysis, it should not be the sole criteria employed by the Court
in making constitutional determinations.50
515 U.S. 819 (1995). The Court’s decision was 5-4 with both O’Connor and Thomas joining
the majority, but filing separate concurring opinions.
515 U.S. at 839.
Id. at 846.
Id. at 852.
530 U.S. 793 (2000).
530 U.S. at 809.
Id. at 810.
Id. at 837.
Id. at 838-839.