Court Rules and Standings
In Abington v. Schempp (1963), the Court said that unlike Free Exercise claims, bringing an Establishment Clause case does not require proving this kind of personal harm.
The infringement or violation of specific religious freedoms
“the requirements for standing to challenge state action under the Establishment Clause, unlike those relating to the Free Exercise Clause, do not include proof that particular religious freedoms are infringed.” (4, ch. 8)
In Lemon v. Kurtzman (1971), Chief Justice Burger listed these "three main evils" that the Establishment Clause prohibits.
Sponsorship, financial support, and active government involvement in religion
According to Witte and Nichols, this main factor usually helps older religious displays survive constitutional challenges.
Age or historical longevity (tradition)
“Even if the original inspiration for the old display or practice was religious, its longstanding presence in public life seems to imbue it with a kind of cultural and constitutional imprimatur. In the Court’s view, it has become a part of American culture, society, and democracy” (15, ch. 11)
In McGowan v. Maryland (1961), the Court upheld Sunday closure laws because they had taken on this secular purpose over time.
Providing a uniform day of rest and recreation for workers
“Chief Justice Warren concluded for the Court that these Sunday blue laws have now developed sufficient “secular justifications” to pass constitutional muster even though they were “undeniably religious in origin.””(2, ch. 11)
In Wallace v. Jaffree (1985), this former Chief Justice argued in dissent that the "wall of separation" was a "metaphor based on bad history".
Chief Justice Rehnquist
“The ‘wall of separation between church and state’ is a metaphor based on bad history, a metaphor that has proved useless as a guide to judging.” (10, ch. 8)
This famous 1968 case allowed regular federal taxpayers to sue over government spending that supports religion.
Flast v. Cohen
“the court held further that federal taxpayers could challenge any government programs that involved taxing and spending in aid of religion. This case opened federal courts to a tide of establishment cases filed by federal taxpayers.” (4, ch. 8)
In Agostini v. Felton (1997), the Court updated the Lemon test by removing this factor as a standalone prong.
"excessive entanglement"
“Most significantly, Agostini removed the separate inquiry into whether there was “excessive entanglement” between religion and state. This allowed for greater cooperation between religious and political officials in discharging social and educational services funded by the government.”(14, ch. 8)
In Allegheny County (1989), the Court struck down a courthouse nativity scene but allowed an 18-foot menorah because it stood next to this 45-foot secular symbol.
A decorated Christmas tree (labeled "A Salute to Liberty")
“Given its less prominent placement on government land, its abstract design, its proximity to the larger “Salute to Liberty” tree, its lack of verbal religious messages, and its use of a symbol (a menorah) that has both religious and cultural connotations, this display was constitutionally acceptable, Justice Blackmun concluded.” (9, ch. 11)
In Braunfeld v. Brown (1961), the Court ruled that forcing Orthodox Jewish store owners to close on Sundays caused only this type of burden on their faith.
Indirect burden (or indirect economic burden)
“it found no violation of Braunfeld’s free exercise rights, since the law regulated only his store hours and not his religious practices.” (3, ch. 11)
Dissenting in Marsh v. Chambers (1983), Justice Brennan pointed to this 1980 school case to show that the Court was ignoring its own Lemon test.
Stone v. Graham
“If a passive, privately donated display of a religious text presented as a moral code is an establishment of religion, as the Stone Court had said, then surely this state-subsidized, overtly religious verbal message regularly delivered in the very seat of state government must constitute an establishment of religion, too.” (5, ch. 11)
In Winn (2011), Justice Kennedy ruled that taxpayers could not sue over private school scholarship programs because the state was using these instead of direct spending.
Tax credits
“the Court held that state taxpayers lacked standing to mount an establishment clause challenge to a state tax credit program.”
“As Justice Kennedy wrote for the Court, the ‘tax credit is not tantamount to a religious tax or to a tithe, and does not visit the injury identified in Flast.’” (5, ch. 8)
This justice created the Endorsement Test, ruling that government cannot make non-believers feel like "outsiders" in their own community.
Justice Sandra Day O'Connor
“We live in a pluralistic society. Our citizens come from diverse religious traditions or adhere to no particular religious beliefs at all.” “[G]overnment may generally not treat people differently based on the God or gods they worship, or don’t worship.”(15, ch. 8)
In Pleasant Grove City v. Summum (2009), the Court ruled that city parks do not have to accept every donated monument because permanent public displays count as this type of speech.
Government Speech
“A government “is entitled to say what it wishes,” Justice Alito wrote for the Court, and “it may select the views it wants to express.”” (13, ch. 11)
In Marsh v. Chambers (1983), the Court upheld legislative chaplains based on history, noting that the First Congress hired chaplains during the very same week it passed this famous document/Amendment.
Bill of Rights (or First Amendment)
“The Court noted that the same Congress that had drafted the First Amendment’s establishment clause in 1789 had also authorized the reappointment of two congressional chaplains at a substantial rate of pay and with comparable duties to pray at the opening of legislative sessions”
In Town of Greece v. Galloway (2014), this justice dissented, writing that sectarian prayers at town meetings violate the core principle of "religious equality".
Justice Kagan (6, ch. 11)
In Hein (2007), the Court limited taxpayer suits by deciding taxpayers cannot challenge actions taken by this specific branch of government.
Executive Branch (or Executive Orders)
“a plurality of the Court held that a federal taxpayer lacked standing to challenge decisions about how to implement an executive order creating a faith-based initiatives program. Taxpayers, the plurality held, had standing to challenge only legislative taxing and spending actions that used federal tax funds.” (4, ch. 8)
Justice Scalia championed this test, which allows government aid to religious groups as long as non-religious groups get the exact same treatment.
Equal Treatment (or Even-Handed Neutrality)
Decided on the exact same day in 2005, these two Ten Commandments cases ended with opposite results, one struck down a display, while the other let a monument stand.
McCreary County v. ACLU and Van Orden v. Perry (10, ch. 11)
In Town of Greece v. Galloway (2014), the Court ruled that town council prayers do not have to be generic as long as they are not used to do these two forbidden things.
Evangelize/advance one faith or disparage/denigrate another
“The Court’s concern is, rather, that the prayer not be used as an occasion to evangelize or advance one religion, or to disparage or deprecate another religion.” (6, ch. 11)
In Van Orden v. Perry (2005), this justice provided the critical 5th vote in a separate opinion, calling it a "difficult borderline case"
Justice Breyer (10, ch. 11)
In Epperson v. Arkansas (1968), the Court agreed to hear a challenge against an unenforced ban on teaching evolution because the teacher faced this immediate conflict.
A "literal dilemma" of whether state law indirectly established creationism alone
“It found that the state law violated the establishment clause because the teacher “faced at least a literal dilemma” of whether the state law had indirectly established the teaching of creationism alone.” (3)
“a public schoolteacher challenged a state criminal law that prohibited the teaching of evolution in a public school or state university.” (3, ch. 8)
Under Justice Souter's "strict neutrality" standard, direct government funding can only go to religious institutions under this specific requirement.
"Searching enquiry" ensuring secular activities are kept strictly separate from religious ones
“a searching enquiry to ensure that the institution kept the secular activities separate from its sectarian ones, with any direct aid flowing only to the former and never the latter.” (17, ch. 8)
In Salazar v. Buono (2010), Congress tried to solve an injunction against a 7-foot cross in the Mojave Desert by taking this legal action.
Selling/transferring the land around the cross to a private group (the VFW)
In Kiryas Joel (1994), the Court struck down a public school district created for a Hasidic Jewish village because the state handed over public power to this authority.
Religious community / religious leadership
“It favored religious over nonreligious students. It subordinated and delegated the state’s educational responsibility to the religious leadership and preferences of the community. Both features of the program were impermissible under the neutrality required by the establishment clause.” (18, ch. 8)
Legal historian Leonard Levy famously joked in 1986 that the Court's Establishment Clause cases were so confusing that opposing sides would agree the Court wouldn't recognize an establishment of religion even if it did this.
"took life and bit the Justices"
“The Court has managed to unite those who stand at polar opposites on the results that the Court reaches; a strict separationist and a zealous accommodationist are likely to agree that the Supreme Court would not recognize an establishment of religion if it took life and bit the Justices.” (18, ch. 11)