Religion in the military: navigating the channel between the religion clauses

Air Force Law Review, Spring, 2007 by David E. Fitzkee, Linell A. Letendre

In 1971, the U.S. Supreme Court in Lemon v. Kurtzman announced and applied a three-part test for determining the constitutionality of governmental action challenged under the Establishment Clause. (35) First, the governmental action at issue must have a secular purpose. (36) Second, "its principal or primary effect must be one that neither advances nor inhibits religion." (37) Third, the governmental action "must not foster 'an excessive government entanglement with religion."' (38) When courts use the so-called "Lemon test," the governmental action must pass all three parts of the test to be consistent with the Establishment Clause. (39)

The "purpose prong" of the test requires that the governmental action at issue must have been done for a legitimate non-religious purpose, such as to promote education, health, or safety. Courts determine purpose by looking as an "objective observer" at the text of the statute or governmental action and all the surrounding circumstances, including its history, context, logical effect, and how it was implemented. (40) If there is more than one arguable purpose, the primary purpose must be secular. (41) Courts normally demonstrate a degree of deference to the government's statement of its secular purpose--provided that the stated purpose is "sincere and not a sham." (42) Courts do not presume an intent to advance religion simply because the governmental action is consistent with a particular religion. (43)

When governmental action is taken with the intent (purpose) to promote religion in general or a particular religious belief, however, courts will strike down such action as violating the Establishment Clause. improper governmental purpose is relatively rare in this context; the U.S. Supreme Court has invalidated governmental action for improper purpose in only five cases since Lemon was decided in 1971. (44) In all these cases, the Court determined that "openly available data supported a commonsense conclusion that a religious objective permeated the government's action." (45) The Court views the "purpose prong" as necessary to ensure the "essential Establishment Clause value of official religious neutrality, there being no neutrality when the government's ostensible object is to take sides." (46)

The "effects prong" is the most significant part of the Lemon test: it is the prong most often at the crux of the issue. This prong recognizes that even though a law was not intended to promote religion (thereby satisfying the "purpose prong"), it may nevertheless have that effect, if the law's "principal or primary effect" advances or inhibits religion, the law is unconstitutional. (47) A mere secondary effect that promotes religion is permissible. Indeed, many laws that provide aid to religious organizations for otherwise valid reasons have an indirect or secondary effect of promoting religion. (48) But such indirect assistance is permissible under the "effects prong," as long as the primary effect of the law is to further some legitimate governmental interest. (49) The primary effect of the law is paramount.