Redefining the Modern Constraints of the Establishment Clause: Separable Principles of Equality, Subsidy, Endorsement, and Church Autonomy
Since 1947 the Establishment Clause' has been a substantive check on governmental activity at all levels. More than four decades later, the content of that check remains unsettled. The United States Supreme Court gave the Establishment Clause its predominant modem voice in 1971 in Lemon v. Kurtzman. Under the Lemon approach, all government practices are measured by the same standard. To survive constitutional attack, a practice "must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion." In nearly all cases decided since, this standard has acted as the constitutional benchmark.' Notwithstanding its long tenure, Lemon's influence is clearly waning, and its status as the principal constitutional gauge appears to be over.
75 Marq. L. Rev. 903 (1992).