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

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

The third and final prong of the Lemon test is that the governmental action at issue "must not foster 'an excessive government entanglement with religion."' (50) To determine whether entanglement is excessive, courts look to "the nature and character of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority." (51) This prong may be violated either when government intrudes excessively into church matters (52) or when the government allows the church to intrude excessively into governmental matters. (53)

Although the Lemon test has been criticized by some members of the Court (54) and some writers, (55) the Court has declined to overrule it. (56) Nevertheless, in some Establishment Clause cases the U.S. Supreme Court has not focused on the Lemon test, even totally ignoring it at times (57) or applying other tests. (58) Two of the significant alternative tests used by the Court are the endorsement test and the coercion test.

In County of Allegheny v. ACLU, (59) the Court recognized the endorsement test as a means of analysis for the Establishment Clause. The fundamental question in the endorsement test is whether a reasonable and informed observer would view governmental action or practices as endorsing religion. (60) The reasonable observer embodies "a community ideal of social judgment, as well as rational judgment ... [and] must be deemed aware of the history of the conduct in question, and must understand its place in our Nation's cultural landscape." (61) Endorsement "preclude[s] the government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred." (62) Endorsement is also "closely linked to the term 'promotion."' (63) Although some courts have questioned whether or not the endorsement test is just a part of Lemon analysis, (64) courts of appeals usually treat the endorsement test as a separate test altogether. (65)

in addition to the endorsement test, the Court has also utilized the coercion test, most often in the context of prayer in school. (66) When analyzing whether governmental action amounts to coercion, the Court looks at whether the government has coerced "anyone to support or participate in religion or its exercise." (67) In striking down government-sanctioned student-led prayer at an extracurricular high school football game, the Court emphasized adolescents' susceptibility to social pressure to conform when evaluating whether the governmental action was coercive in nature. (68) Thus, courts may find governmental action to be coercive, even if it falls well short of the government mandating a religious practice. (69) The lower courts' concern over coercion lessens as the age and maturity of students increase. (70) The Court of Appeals for the Fourth Circuit transferred this concern for governmental coercion to a military context when holding "voluntary" prayer at the noon meal at the Virginia Military Institute unconstitutional. (71) Although these decisions have been in the prayer context, the coercion test serves as a useful analysis for dealing with the implication of military chain of command issues and the potentially coercive environment for subordinates.