Beyond the school system, the Court has also addressed a few issues relating to government displays or actions that convey a religious message. In the 1984 case of Marsh v. Chambers, the Court addressed the constitutionality of Nebraska’s legislature opening each session with a prayer by a Chaplain paid with public funds. The Court decided that this practice is not unconstitutional for three main reasons. First, the long tradition of legislative prayer shows that it has become “part of the fabric of our society.” Second, the first Congress approved legislation for paid chaplains and their action “is contemporaneous and weighty evidence” of the true meaning of the Constitution. Third, the legislators are adults and “presumably not readily susceptible to ‘religious indoctrination’. So the practice is not an establishment of religion. “It is simply a tolerable acknowledgement of beliefs widely held among the people of this country.”
Three justice dissented arguing that the practice violates the “imperative of separation and neutrality” which are not limited “to the relationship of government to religious institutions” but extend to “the relationship of government to religious beliefs and practices.” While other government acts like the national motto “In God We Trust” might be acceptable because they have “lost any true religious significance,” legislative prayer is still clearly religious.
Five years later, the Court addressed the question of whether it was acceptable for a city to erect a Nativity scene as part of the Christmas display, which includes Santa’s house, a Christmas tree, and a banner that reads “Seasons Greetings.” The Court described the “wall” of separation between Church and State as a metaphor that “is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state.” The Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. The government simply must have a secular purpose and the city’s actions celebrate the Holiday and depicts its origins which “are legitimate secular purposes.” Four justices dissented arguing in part that the Nativity scene is “best understood as a mystical re-creation of an event that lies at the heart of Christian faith.” Saying that it is no different than Santa’s reindeer is “not only offensive to those for whom the [Nativity scene] has profound significance, but insulting to those who insist for religious or personal reasons that the story of Christ is in no sense a part of “history” nor an unavoidable element of our national “heritage.”
In 1989, the court addressed another case involving two different Christmas displays. The first was a big Nativity scene on display by itself in the grand staircase of a county courthouse. The second was a display of the Christmas tree along with a giant menorah at the entrance of a city-county building. Beneath the tree was a sign with the mayor’s name with the title “Salute to Liberty.” The sign read, “During this holiday season, the city (sic) of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.” The Court said that the Constitution mandates that the government remain secular. A secular state “is not the same as an atheistic or antireligious state. A secular state establishes neither atheism nor religion as its official creed.” The Court then invoked the Lemon test and said that the prohibition against government endorsement of religion “preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.” The Court ultimately held that the first display was sufficiently likely to convey such a message to an objective observer while the second display would not.
In 2005, the Court used similar strained logic to determine that a display of the Ten Commandments at a county court house was unconstitutional. In 1999, two counties in Kentucky posted large copies of the Ten Commandments in their county courthouse. The ACLU sued. So the counties changed the display to include eight other historic documents with religious references in smaller frames. Then a District Court entered a preliminary injunction against the display. So it was modified by the county to include nine frames of equal size of: the Ten Commandments, “Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star Spangled Banner, the Mayflower Compact, the National Motto, the Preamble to the Kentucky Constitution, and a picture of Lady Justice.” The collection was entitled “The Foundations of American Law and Government Display” and each document had a statement about its historical and legal significance. The Court concluded that:
"[I]t will matter to objective observers whether posting the Commandments follows on the heels of displays motivated by sectarianism, or whether it lacks a history demonstrating that purpose… [The Secular] purpose needs to be taken seriously under the Establishment Clause and needs to be understood in light of context; an implausible claim that governmental purpose has changed should not carry the day in a court of law any more than in a head with common sense. "
Therefore, the display is unconstitutional.
After giving extensive examples of the integration of religion with government in American history, Justice Scalia said, “with all of this reality (and much more) staring it in the face, how can the Court possibly assert that ‘the First Amendment mandates government neutrality between … religion and nonreligion.’” He goes on to say that the difference between the “rule of law” and the “dictatorship of a shifting Supreme Court majority” is the requirement that judicial opinions must be grounded in “consistently applied principle.” He then accused the majority of “less than forthrightly” admitting that its opinion is not based on consistently applied principles:
"[T]he Court acknowledges that the ‘Establishment Clause doctrine’ it purports to be applying ‘lacks the comfort of categorical absolutes.’ What the Court means by this lovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not. "
Justice Scalia then ridicules the Court’s conclusion because it decided that “the legitimacy of a government action with a wholly secular effect [turns] on the misperception of an imaginary observer that the government officials behind the action had the intent to advance religion.”
The Balance Between the Majority and Minority Religion:
In this line of cases, the Court addressed the problem of when general laws can be passed which infringe on minority religions from practicing their faith. In 1963 in the case of Sherbert v. Verner, the Supreme Court heard the case of a member of the Seventh-day Adventist Church who was discharged from work for refusing to work on Saturday, the Sabbath Day of her faith. South Carolina denied the woman unemployment benefits because it deemed her to have refused work without ‘good cause.’ The Court said that if the purpose of effect of a law is to “impede the observance” of any or all religion or to discriminate between religions, it is unconstitutional even if the burden is only indirect. In this case the government is forcing her to choose between her religion or accepting government benefits. This is the same kind of burden on her religion as “a fine imposed against [her] for her Saturday worship.” In order to justify this kind of imposition on a person’s religion a compelling and paramount state interest must be at risk. The dissent argued that while it is permissible for the state to accommodate religion, it is not constitutionally compelled to do so.
In Thomas v. Review Board, the Court applied the Sherbert test to extend employment benefits to a Jehovah’s Witness who quit, citing religious grounds, when he was transferred to work on tank turrets. The individual in this case was “struggling” with his beliefs and could not “articulate” them precisely. The Court said that determining what is a religious belief does not “turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” The court went on to say that it doesn’t matter that the petitioner held a different religious belief on this issue than other people in his religion. The court said, “One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause; but that is not the case here.” The only function of the Court is to determine whether the “petitioner terminated his work because of an honest conviction that such work was forbidden by his religion.” In this case, the Court found that he had and that therefore it was unconstitutional for the state to deny him unemployment benefits.
The Court also applied the Sherbert balancing test to prevent a state from compelling Amish parents to send their children to formal high school to age 16. The Court said that a way of life, “however virtuous and admirable,” is not sufficient to prevent the state from imposing reasonable regulations based on “purely secular considerations.” The way of life must be “rooted in religious belief” to get constitutional protection. If the Amish held their beliefs based on a “subjective evaluation and rejection of the contemporary secular values accepted by the majority,” then there beliefs would not be religious. A “philosophical and personal choice” does not qualify for protection under the religion clauses of the Constitution. The Court went on to conclude that the Amish beliefs were deeply religious and that the state unconstitutionally infringed upon them.
In the 1982 case of U.S. v. Lee, the Court began to shift its attitude on the balancing test approach. The case also involved the Amish who believed that their religion prohibits them from paying into or accepting social security. The court said religious freedom requires that “some religious practices yield to the common good.” There is “a point at which accommodation would ‘radically restrict the operating latitude of the legislature.’” The “broad public interest in maintaining a sound tax system” is so important that religious belief in conflict with paying taxes “affords no basis for resisting the tax.”
Then in the 1990 case of Employment Division v. Smith, the Court almost completely abandoned the Sherbert balancing test. The case involved two individuals who were fired and denied unemployment benefits for ingesting peyote, an illegal hallucinogenic, during a religious ceremony at their Native American Church. In their system of belief, “the peyote plant embodies their deity, and eating it is an act of worship and communion. Without peyote, they could not enact the essential ritual of their religion.” The Court said that personal religious beliefs do not relieve an individual of the obligation to comply with “valid and neutral law of general applicability.” The government’s ability to implement public policy cannot depend on the possibility of limiting a particular person’s “spiritual development.” The “unavoidable consequence of democratic government” is preferable to a system in which each person is law unto himself or to a system in which “judges weigh the social importance of all laws against the centrality of all religious beliefs.”
The Court said that cases like the accommodation of Amish beliefs on school attendance and not being able to force students to salute the flag were unique because they combined religious rights with the right of free speech or the rights of parents towards their children. The decisions in the Sherbert unemployment cases, “stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.
Polygamy v. Homosexuality:
Since the cases in the late 1800’s, the court has not readdressed the rational for criminalizing polygamy. However, the Court has considered the constitutionality of statutes criminalizing homosexual acts which were also originally passed in accordance with the “general consent of the Christian world.”
In the 1986 case of Bowers v. Hardwick, the court considered the question of whether or not the Constitution “confers a fundamental right upon homosexuals to engage in sodomy.” The court said that it has defined “fundamental rights” as those rights fundamental to the existence of “ordered liberty” and “justice” that are “deeply rooted” in this Nation’s “history and tradition.” The court held that homosexuality is not a fundamental right. Until 1961, “all 50 States outlawed sodomy,” so it does not meet the definition of a right “deeply rooted” in the Nation’s history. The court recognized that it “comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.” It went on to say that while the First Amendment protects the possession of obscene material in the privacy of one’s home, it offers no protection for possession of “drugs, firearms, or stolen goods.” It would be illogical to protect homosexuality conducted in the home “while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home.” The court also rejected the argument that the law was not rational because it was only based on moral beliefs. It said that law “is constantly based on notions of morality,” so this cannot be a basis for holding a law invalid.
In 2003, the court re-addressed the same issue in Lawrence v. Texas, and overruled the previous judgment. The court said that “[l]iberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” The court then acknowledged that “for centuries” homosexual conduct has been condemned as immoral. So the issue “is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law.” The court then threw out history and said that it considered the “laws and traditions” of the “past half century” to be the most relevant for this question. It claimed that the modern trend shows “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” It then pointed to the recent repeal of sodomy laws in some states and the recognition of the European Convention on Human Right that homosexual conduct is a protected right. The court concluded that the governing majority’s view that a particular practice is immoral is “not sufficient reason for upholding a law prohibiting the practice” and that physical intimacies are a protected liberty which extends to “unmarried as well as married persons.”
Three justices dissented arguing, among other things, that the statute “undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable.’” This is the same rational furthered by criminal laws against prostitution, child pornography, “fornication, bigamy, adultery, adult incest, bestiality, and obscenity.” So if the promotion of the majority’s view of sexual morality is “not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.” The justices also noted that the Court’s reasoning “leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.”