Copyright © 1996 Florida State University Law Review

A. Engel v. Vitale
C. Lemon v. Kurtzman
D. Lower Court Application of the Lemon Test
E. The Burger Court's Move Toward Accommodation
A. Dismantling the Wall
B. Allegheny County: Accommodation Moves to the Forefront
C. Establishment Clause Jurisprudence Fractured


The U.S. Supreme Court has a long tradition of protecting religious freedom in this country.[1] Yet for those who are most anxious about the separation of church and state, a dark specter has begun to haunt America. Religious freedom and the First Amendment principles[2] that helped make this country great are being threatened.[3] A hue and cry has arisen. The religious right has repeatedly expressed its desire to make America a "Christian nation."[4] A majority of American citizens now want to return prayer to public schools.[5]

After the Republicans' sweeping victory in the 1994 congressional elections, "Religious Equality"[6] and "Religious Liberties"[7] amendments to the Constitution were introduced in the House of Representatives. A number of commentators have viewed the proposed amendments as a direct attack on the Establishment Clause.[8] Moreover, even though the traditional test of Establishment Clause boundaries set out by the U.S. Supreme Court in Lemon v. Kurtzman[9] has proven more than adequate to maintain the separation of church and state, several Supreme Court justices have advocated abolishing the test.[10] Commentators such as Professor Michael McConnell have written of the deserved death of "secular liberalism."[11] Separation of church and state is under siege. "Accommodation" is the new "correct" path.[12]

Not all of the roiling is unhealthy or improper by any means. Buttressed by First Amendment rights of free exercise and free speech, religion is still a powerful force in our cultural, political, and social endeavors.[13] This is appropriate for a country founded upon the principle of religious liberty. History, however, remains an omnipresent warning of potentially horrifying abuse.[14] Freedom of religion means freedom of conscience for all religions or for none, not just freedom of conscience for the majority's creed.[15] The founders of this country were keenly aware of that.[16] Thus, the First Amendment mandates that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."[17] Equilibrium is the key: as the right to freely exercise one's religion expands, the right to be free of an established religion diminishes, and vice versa. Therein lies the genius of the system; it allows religion to flourish while maintaining a vibrant church-state separation that permits breathing room for all. Historically, the Establishment Clause has been a success.[18]

Many of the Establishment Clause cases decided by the Supreme Court during the past thirty years have been nibbles at the margin of constitutional protection, not thrusts at the heart.[19] The Rehnquist Court, by accentuating accommodation, has shifted the fulcrum that balances the Free Exercise Clause with the Establishment Clause.[20] The seesaw now tilts decidedly in favor of the Free Exercise Clause, leaving the Establishment Clause up in the air.[21] The direction taken by the Court raises the distant early warning of history's tragic lessons.

One of the central Establishment Clause issues has been the need to ascertain the allowable proportion of religion in public schools.[22] Because children are susceptible to authority and may not have the defenses necessary to screen out improper suggestions, the Court has heard numerous cases that deal with this issue.[23] Part II of this Article examines the Rachel Bauchman case.[24] Currently on appeal in the Tenth Circuit, this case involves the question of whether a fifteen-year-old Jewish girl's Establishment Clause rights were violated by the use of overtly Christian religious music and by the actions of the director of the public school choir of which she was a member.[25] Part III of this Article analyzes significant Establishment Clause decisions in the Warren and Burger Courts, exploring in particular the parentage and progeny of the Lemon test.[26] Part IV analyzes notable Establishment Clause opinions in the Rehnquist Court and illustrates how these decisions are systematically dismantling the protection of the Establishment Clause. Part V articulates both a response to the accommodationist trend of the Rehnquist Court and a suggested answer to the Rachel Bauchman case. Finally, part VI proposes a return to a rigorous application of the Lemon test[27] as the most suitable bright line for separating church and state in public school cases.


In 1994, Rachel Bauchman, a fifteen-year-old Jewish girl, transferred to West High School, a public school in Salt Lake City, Utah.[28] During the 1994-95 academic year, Rachel, a tenth-grade honor student, auditioned for and became a member of the school's A'Cappella Choir, an elective course that the school offered for credit.[29] Rachel had been singing soprano in choruses since the first grade and was thus familiar with a variety of choral music.[30] This choir's repertoire, however, which consisted mainly of contemporary Christian devotionals, was quite different from the repertoire of any of the choirs in which she had previously sung.[31] Because of her religious convictions, Rachel did not feel she could, in good conscience, sing these particular songs, every one of which praised Jesus Christ.[32] Nevertheless, the choir class curriculum mandated that the choir practice and perform these songs.[33] As part of the curriculum, the choir director, Richard Torgerson, required Rachel and the other choir members to sing at public sites.[34] Many of these performances, especially the ones that were part of a series of "Christmas concerts," took place in Christian churches.[35] In addition, Torgerson's former students described him as a deeply religious man who pressed his religious beliefs upon his students and even encouraged them to visualize "Jesus dying for our sins."[36]

Rachel asked her father to write a letter to Torgerson requesting that he balance the choir's repertoire by adding nonsectarian songs and music of other faiths.[37] She also asked that some of the performances be held at nonreligious sites.[38] Torgerson refused both requests.[39] Subsequently, he offered Rachel the choice of continuing with the choir's scheduled practices and performances or sitting in the library for the duration of the Christmas concerts, for which she would earn an "A" for the course.[40] Rachel's religious convictions prevented her from accepting the first of Torgerson's offers; her sense of honor required her to decline the second.[41]

The situation worsened during the spring semester. Traditionally, the choir conducted a "spring tour" during which it performed religious and devotional music.[42] The choir frequently participated as a group in Christian church services.[43] During class, Torgerson explicitly criticized Rachel's opposition to the content and locations of the spring tour.[44] Subsequently, Torgerson canceled the tour and indicated to the class that Rachel was the cause.[45] He chastised her in class for asserting her First Amendment rights, repeatedly mentioning Judaism in such a way as to differentiate her from her classmates.[46] Rachel alleged that "following the lectures she was exposed to public ridicule and humiliation, and was the subject of racial and religious epithets spoken by her fellow students."[47] For the remainder of the school year, Rachel was subjected to hostility, anti-Semitic remarks, a locker defaced by swastikas, and other hostile actions by West High School students.[48]

Rachel's father wrote a private letter to Torgerson regarding his daughter's situation.[49] Torgerson released the letter to Preston Naylor, the father of another student in the choir.[50] Naylor then circulated the letter to all of the parents of the students in the choir.[51] Rachel alleged that the release and circulation of her father's letter increased her public humiliation and the hostility directed against her.[52] Torgerson stated in class that he would not stop his activities "no matter what"—even if Rachel believed they were unconstitutional.[53]

The situation culminated at the high school graduation on June 7, 1995. Attendance was compulsory for all students.[54] The A'Cappella Choir was slated to perform two songs: "Friends" and "The Lord Bless You and Keep You."[55] The lyrics in both songs explicitly referred to "the Lord" and to other words with clear religious connotations.[56] Rachel sued, seeking a temporary restraining order, which was denied by U.S. District Court Judge J. Thomas Greene.[57] That denial was immediately overruled by the U.S. Court of Appeals for the Tenth Circuit.[58] The Tenth Circuit enjoined the choir from singing, and also enjoined public school officials from allowing the singing of those two particular songs at the graduation.[59] Notwithstanding the injunction, a large majority of the students and parents in attendance sang "Friends."[60]

Following this episode, Rachel brought suit in federal district court against West High School, Torgerson, various public school officials, and the Salt Lake City School District, alleging, among other things, violations of her First Amendment rights.[61] The district court dismissed the suit, first in an oral opinion by Judge Greene, and later, following supplemental pleadings, in a written opinion.[62] Remarkably, Greene ruled that Rachel had failed to state a claim for which relief could be granted, even though the Tenth Circuit had earlier decided, based upon essentially the same pleadings, that an injunction was appropriate.[63]

The point of this Article is not to debate the wisdom of Judge Greene's dismissal of Rachel's suit. It does seem clear, however, that Judge Greene will be reversed again on appeal. The Tenth Circuit has stated that a dismissal for failure to state a claim is proper "only when it appears 'clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.' " [64] Rachel will undoubtedly get her day in court.


Had Rachel's claim arisen in the Warren Court era, or even in the Burger Court era, contemporaneous constitutional jurisprudence would have revealed a clear violation of her First Amendment rights. Engel v. Vitale[65]and Abington School District v. Schempp[66] were the constitutional soil in which the Warren Court rooted its perception of the separation of church and state. Both Engel and Schempp focused on the issue of state-sponsored religious prayer in public schools.

A. Engel v. Vitale

Decided in 1962, Engel involved a New Hyde Park, New York, school district directive that required every class in the district to recite a state-created prayer in the presence of a teacher at the beginning of each school day.[67] The New York State Board of Regents had recommended the nondenominational prayer as part of its "Statement on Moral and Spiritual Training in the Schools."[68] School district policy allowed those students who wished not to participate the option of being excused upon the written request of a parent or guardian.[69] Furthermore, teachers could not mandate any specific dress code, language, or posture during the prayer session.[70] Parents of ten students brought suit against the school district, alleging that the prayer was contrary to their beliefs and violated the Establishment Clause.[71] Finding that no student was compelled to participate in the prayer, the New York Court of Appeals upheld the constitutionality of the policy.[72]

In a decision written by Justice Black, the Supreme Court held that the nondenominational prayer was unequivocally a religious activity.[73] Recognizing that state policy is unconstitutional when it creates a government program furthering religion, the Court found that the Establishment Clause "must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government."[74] The Court went on to explain that although a prayer may be denominationally neutral and participation in its utterance voluntary, it is still an inappropriate advancement of religious goals by the state and thus violates the Establishment Clause.[75]

The Establishment Clause is premised upon the "belief that a union of government and religion tends to destroy government and to degrade religion."[76] The Board of Regents' policy was therefore in direct conflict with the both the language and purpose of the Establishment Clause. The government violates the First Amendment not just when it promotes one religion over another, but also when it infringes upon religious freedom, even to a small degree.[77]

<HNO>B.HNO> Abington School District v. Schempp

The following year, in Abington School District v. Schempp,[78] the Supreme Court addressed the emotional and vexatious issue of Judeo-Christian prayer in public schools. Schempp involved a Pennsylvania statute that required the reading of ten verses from the Bible at the beginning of each school day.[79] As originally enacted, the statute did not have a provision for excusing students.[80] The statute was amended, allowing students with parental permission to be excused from the recitation and prayer sessions.[81]

The school day at Abington High School began with a reading over the intercom system of a student-selected passage from the Bible.[82] A recitation of the Lord's Prayer followed the reading.[83] The Schempps, who were Unitarians, sued the school district because they believed that other children would view the family's religious difference as "atheism," which the Schempps felt would stigmatize their children.[84] The federal district court held that the statute violated the Establishment Clause.[85] In affirming, the Supreme Court noted that the Bible reading inherently possessed a "devotional and religious character and constitute[d] in effect a religious observance."[86] Furthermore, the fact that prayers were said daily in a public school building under the supervision of school personnel constituted an impermissible advancement of religion by the state.[87]

The purpose of the Establishment Clause, declared the Court, quoting Justice Rutledge's seminal dissent in Everson v. Board of Education,[88] " 'was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.' "[89] Emphasizing the need for neutrality, the Schempp Court stated that "while [the government] protects all, it prefers none, and it disparages none."[90] This is the intent of the Establishment Clause. If the purpose and primary effect of a statute advances or inhibits religion, then it is constitutionally infirm.

While the Abington Township School District contended that the program had secular purposes and was voluntary, the Schempp Court found that the pervasive religious character of the exercises outweighed the school district's arguments.[91] The Court understood that the seesaw effect of competing interests within the First Amendment prohibits the use of government power to deny the free exercise of religion to anyone. By the same token, the First Amendment "has never meant that a majority could use the machinery of the State to practice its beliefs."[92]

C. Lemon v. Kurtzman

The Warren Court sowed the seeds of contemporary Establishment Clause jurisprudence in Engel and Schempp. The Burger Court reaped the harvest of church-state separation in 1971 when it created the bright line test that is synonymous with the holding of Lemon v. Kurtzman.[93] To pass muster under the Lemon test, a government practice must (1) reflect a clearly secular purpose, (2) have a primary effect that neither advances nor inhibits religion, and (3) avoid excessive government entanglement with religion.[94]The Lemon test is the direct offspring of Board of Education v. Allen[95]and Walz v. Tax Commission.[96] The Court obtained the first two prongs of the Lemon test from Allen, in which the Court emphasized secular purpose and primary effect.[97] The third prong, excessive government entanglement with religion, derived from Walz.[98]

Lemon involved statutes enacted in Rhode Island[99] and Pennsylvania.[100] Each statute provided for public funding of secular education in parochial schools. In Rhode Island, public funds went to supplement the salaries of school teachers who taught secular subjects in religious schools.[101] In Pennsylvania, the statute authorized the state to purchase secular education classes from religious schools through payment of public funds to those schools for salaries and textbooks.[102] Writing for the Court, Chief Justice Burger analyzed the First Amendment's use of the word "respecting" and determined that the proper interpretation of this word required the Court to strike down laws that are merely the first step toward establishment of a state religion.[103]Lemon turned out to be the high water mark of separation of church and state jurisprudence. Until recent years, the Lemon test was Establishment Clause gospel.[104]

D. Lower Court Application of the Lemon Test

Florey v. Sioux Falls School District 49-5[105] is one of Lemon's most significant progeny. The facts of Florey required the Eighth Circuit to apply the Lemon test in its entirety to the question of public school observance of religious holidays.[106] In 1977, a kindergarten class in Sioux Falls, South Dakota, held a Christmas program.[107] The program contained many Christian religious references, including the now well-known "Beginners' Christmas Quiz."[108] Complaints from parents prompted the school board to set up a citizens' committee with members from a cross-section of the community.[109] The committee's purpose was to study the relationship between church and state and determine what was appropriate for school functions.[110]

Several months of deliberations resulted in the creation of a set of rules and a policy statement explaining the rules.[111] Generally, the rules limited observances to those holidays that had both a religious and secular basis. Holidays with only a religious basis would not be observed.[112] Rule 3 allowed music, art, literature, and drama with a religious theme or basis to be included in the curriculum if presented "in a prudent and objective manner and as a traditional part of the cultural and religious heritage of the particular holiday."[113] Rule 4 permitted the use of religious symbols in teaching only if they were used as an "example of the cultural and religious heritage of the holiday and [were] temporary in nature."[114]

The district court held that the rules, "if properly administered and narrowly construed," would not violate the First Amendment.[115] The Eighth Circuit applied the Lemon test to determine whether the rules promulgated by the school board violated the Establishment Clause.[116] Using a step-by-step approach, the Florey court analyzed each Lemon prong in detail. The court considered the first imperative—that "the [activity] must have a secular purpose"[117]—in light of the school prayer cases.[118] These cases involved a state-created system that advanced religion.[119] By contrast, the rules in Florey tried "to delineate the scope of permissible activity."[120]

The Florey court emphasized that the "purpose and effect" of the rules was clearly secular.[121] The school board policy attempted to minimize the impact of religious holidays while trying to preserve their cultural heritage.[122] Even though a particular holiday may have had a religious connotation, the rules promoted a secular version of the holiday.[123]

Next, the Florey court applied the second Lemon prong to the rules, asking whether they had a " Qprincipal or primary effect . . . that neither advances nor inhibits religion.' "[124] Again, the court found no invalidity.[125] The rules mandated that religious materials, including art, music, and literature, be presented in the context of the teaching of cultural history.[126]

The final prong was never really an issue because the facts in Florey did not even approach "excessive government entanglement with religion."[127] The court found that there was no meaningful relationship between the school district's policies and any religious authority.[128] Thus, Florey stands for the proposition that the First Amendment does not insulate public schools from all religious teaching.

E. The Burger Court's Move Toward Accommodation

Toward the end of the Burger era, the Supreme Court began to retreat from strict adherence to separation of church and state. In terms of values, accommodation moved to the forefront.[129] The Court's 1984 decision in Lynch v. Donnelly[130] exemplified this shift. Lynch involved an annual Christmas display in a park in Pawtucket, Rhode Island.[131] Included in the display for the previous forty years were a Nativity scene, a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cut-out figures such as a clown, an elephant, and a teddy bear, hundreds of colored lights, and a banner reading "Seasons Greetings," among other things.[132] In an opinion written by Chief Justice Burger, the Court held that the use of the Nativity scene in the context of a Christmas display did not violate the Establishment Clause because the government did not intend to aid any particular religion or faith.[133] The Court emphasized the importance of viewing the government's action in relation to the circumstances.[134] In this case, the city had a secular purpose for including the Nativity scene in its Christmas display.[135] In the context of the Christmas holiday, the Nativity scene neither advanced a religious cause nor created an excessive entanglement between religion and government.[136] The Court further stated that any benefit received by a particular religion or faith was "indirect, remote, and incidental."[137] The Court found that rather than requiring complete separation of church and state, the Constitution allowed for accommodation of all religions and prevented hostility towards any. The Court went out of its way to point out that "[a]nything less would require the 'callous indifference' . . . that was never intended by the Establishment Clause."[138]


A. Dismantling the Wall

If the trend away from the separation of church and state was a drizzle at the end of the Burger Court, it became a torrent in the Rehnquist reign. Even in the most clear-cut cases, Chief Justice Rehnquist and Justice Scalia revealed that their personal agenda was to emphasize the Free Exercise Clause at the expense of the Establishment Clause. For example, in the 1987 case Edwards v. Aguillard,[139] Justices Rehnquist and Scalia were the dissenters in the seven-to-two decision.[140]Edwards involved a Louisiana law which forbade the teaching of evolution in public schools unless accompanied by instruction in the theory of "creation science."[141] In an opinion written by Justice Brennan, the Court held that the law served no identifiable secular purpose and that its primary effect was the promotion of a particular religious belief, both of which violated the Establishment Clause.[142] The Court reasoned that references to religion may be valid as long as they do not have the purpose or effect of advancing religious goals.[143] The Court also noted that younger students require even more protection because the danger of influencing the beliefs of public grade school and high school children is so great.[144] Fortunately, Justices Rehnquist and Scalia stood alone. Had they carried the day in Edwards, there would have been little, if any, protection left under the Establishment Clause.

The Rehnquist Court's desire to dismantle the Establishment Clause's wall of separation between church and state became clear in Bowen v. Kendrick.[14]5 Bowen involved the constitutionality of the Adolescent Family Life Act (AFLA), which authorized federal grants to secular and sectarian organizations for counseling and research in the areas of premarital adolescent relations and teen pregnancy.[146] Chief Justice Rehnquist, writing for the Court in a five-to-four decision, ostensibly applied the Lemon test in holding that, on its face, AFLA did not have the "primary effect of advancing religion."[147]

Justice Blackmun, in a compelling dissent, asserted that

AFLA, unlike any statute this Court has upheld, pays for teachers and counselors, employed by and subject to the direction of religious authorities, to educate impressionable young minds on issues of religious moment. Time and again we have recognized the difficulties inherent in asking even the best-intentioned individuals in such positions to make a total separation between secular teaching and religious doctrine.[148]
Continuing his assault on the majority's form-over-substance approach, Justice Blackmun declared:

Whatever Congress had in mind, however, it enacted a statute that facilitated and, indeed, encouraged the use of public funds for such instruction, by giving religious groups a central pedagogical and counseling role without imposing any restraints on the sectarian quality of the participation. As the record develops thus far in this litigation makes all too clear, federal tax dollars appropriated for AFLA purposes have been used, with government approval, to support religious teaching.[149]
B. Allegheny County: Accommodation Moves to the Forefront

The conservative ideology of accommodation, implicit in earlier decisions,[150] became explicit in County of Allegheny v. American Civil Liberties Union.[151] This case involved the constitutionality of two holiday displays in downtown Pittsburgh. The first display was a Nativity scene placed inside the county courthouse.[152] The second was an eighteen-foot menorah placed outside the City-County Building next to a forty-five-foot Christmas tree.[153]

This case was unusual in that four justices found that neither display violated the Establishment Clause,[154] three justices found that both displays violated the Establishment Clause,[155] and two justices found that the Nativity scene was unconstitutional while the menorah, in its context, was constitutional.[156] The majority distinguished the two displays by indicating that the Nativity scene conveyed a religious message.[157] The Court held that while "[t]he government may acknowledge Christmas as a cultural phenomenon . . . it may not observe it as a Christian holy day by suggesting that people praise God for the birth of Jesus."[158] Although the menorah is the traditional symbol of Chanukah, the Court reasoned that its placement next to a Christmas tree created an "overall holiday setting" that mitigated the menorah's original nature, making it a symbol of the winter holiday season and not a religious message of the Jewish faith.[159]

Justice Kennedy articulated the conservative view of accommodation in Allegheny County.[160] With respect to the Nativity scene, Justice Kennedy objected to the majority's application of the Lemon test; however, he purported to follow it himself.[161] Ironically, his application of the Lemon test would have severely weakened the separation of church and state with the very standard that has most effectively maintained its preservation during the past twenty years.

The real thrust of Justice Kennedy's opinion, however, lay in his use of the coercive effect test,[162] which Justice O'Connor criticized in her concurrence:

An Establishment Clause standard that prohibits only "coercive" practices or overt efforts at government proselytization . . . but fails to take account of the numerous more subtle ways that government can show favoritism to particular beliefs or convey a message of disapproval to others, would not, in my view, adequately protect the religious liberty or respect the religious diversity of the members of our pluralistic political community. Thus, this Court has never relied on coercion alone as the touchstone of Establishment Clause analysis.[163]
Drawing upon her concurrence in Lynch v. Donnelly,[164] Justice O'Connor's proposed solution was the endorsement test.[165] In Lynch, Justice O'Connor had described the Establishment Clause's protections as prohibiting the government from "making adherence to a religion relevant in any way to a person's standing in the political community."[166] The government violated this prohibition when it endorsed a particular religion: "Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."[167] Justice O'Connor's thesis in Lynch was that the relevant inquiry was not "whether secular objectives for the legislation existed, but rather, whether the government intend[ed] to convey a message of endorsement or disapproval of religion or whether the message had such effect."[168]In Allegheny County, Justice O'Connor explained that the test was the most appropriate to apply in Establishment Clause cases because, "[a]s a theoretical matter, [it] captures the essential command of the Establishment Clause, namely, that government must not make a person's religious beliefs relevant to his or her standing in the political community by conveying a message 'that religion or a particular religious belief is favored or preferred.' "[169]

Thus, when the Allegheny County dust had settled, three separate Establishment Clause tests remained: the Lemon test, the coercive effect test, and the endorsement test.[170] In the context of our country's diversity and pluralism, in which constitutional protections are so vital, the existence of three tests was a harbinger of trouble.

C. Establishment Clause Jurisprudence Fractured

Lee v. Weisman[171] involved a Providence, Rhode Island, school district that invited a rabbi to give the invocation and benediction at a graduation ceremony.[172] It had been the long-standing policy of the school district to invite members of the clergy to give such addresses, as long as they followed the school district's guidelines and gave assurances that the prayers would be nonsectarian.[173] Justice Kennedy, writing for the majority, used the coercive effect test in holding that state-sponsored and directed religious exercise amounted to an impermissible involvement of government with religion.[174] The Court reasoned that because the school district provided the rabbi with a pamphlet on school policy and instructed him to deliver a nonsectarian message, they were in effect controlling the prayer's content.[175] The Court declared that not only are actions or practices that coerce people to support or participate in religious activities invalid, but those that even pose the danger of doing so are likewise impermissible in light of the Establishment Clause.[176] Again, Justices Scalia, White, and Thomas, and Chief Justice Rehnquist dissented because of their belief that the facts of Lee fit comfortably within the concept of accommodation of religion by government.[177] In retrospect, it is not surprising that because of their accommodationist agenda these four justices refused to concur in even the weakest of church-state separation standards, the coercive effect test.[178]

The Rehnquist Court continued its expansion of the Free Exercise Clause in Zobrest v. Catalina Foothills School District.[179] Zobrest concerned a hearing-impaired student who was attending a private Roman Catholic school.[180] Zobrest asked the school district to furnish him with a sign language interpreter, but the school district refused.[181] In a five-to-four opinion, Chief Justice Rehnquist wrote that "[g]overnment programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit."[182] The Court reasoned that any aid the secular school received was indirect because the aid attached to the individual child, and the parents had the choice to send him to any school they wished.[183]

Again, Justice Blackmun wrote a dissenting opinion. " 'Although Establishment Clause jurisprudence is characterized by few absolutes,' at a minimum 'the Clause does absolutely prohibit government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith.' "[184] Thus, in its rush to restrict the protections of the Establishment Clause, the Rehnquist majority in Zobrest embarked upon the dangerous path of political decisionmaking.[185] There was no need for the Court to decide Zobrest on constitutional grounds. There were two other, nonconstitutional grounds on which the Court properly could have decided the case.[186]

The Court's compulsion to expand the Free Exercise Clause found its most recent expression in a five-to-four decision, Rosenberger v. Rector of the University of Virginia.[187]In Rosenberger, the Court upheld the payment of public funds to an evangelical student organization devoted to religious proselytization.[188] Writing for the majority, Justice Kennedy stated that

[t]hough our Establishment Clause jurisprudence is in hopeless disarray, this case provides an opportunity to reaffirm one basic principle that has enjoyed an uncharacteristic degree of consensus: The Clause does not compel the exclusion of religious groups from government benefits programs that are generally available to a broad class of participants.[189]
In a cogent dissent, Justice Souter asserted "[t]he Court today, for the first time, approves direct funding of core religious activities by an arm of the State."[190] Justices Souter, Stevens, Ginsburg, and Breyer viewed this as a clear violation of the Establishment Clause. Concluding his dissent with a reference to his own apprehension about the future,[191] Justice Souter recalled Chief Justice Burger's prophetic warning in Lemon: " '[I]n constitutional adjudication some steps, which when taken were thought to approach "the verge" have become the platform for yet further steps. A certain momentum develops in constitutional theory and it can be a "downhill thrust" easily set in motion but difficult to retard or stop.' "[192]


To advocate a return to strict Lemon test adherence in the context of a case involving lyrics in public high school choir songs may appear to many readers to be "distant" and "early" rather than a "warning."[193] However, the most delicate sensitivities are involved in issues of separation of church and state.[194] Perhaps Rachel Bauchman will establish at trial that Torgerson's activities amounted to outright proselytizing. If so, I trust that all members of the present Court would find such conduct offensive to the Constitution. Indeed, past cases have so held.[195]

The more difficult question arises when a plaintiff cannot show proselytizing by public school teachers and the legal focus narrows solely to the lyrics of choir songs and their places of performance. A strong argument can be made that cultural, historic, and artistic aspects inherent in music outweigh, in a constitutional sense, the music's explicit religious content. However, this argument would only be persuasive if the music itself were part of a nonsectarian curriculum of public education presented in the same way that algebra or any other course were taught.[196] Thus, Rachel's case brings us to the precise intersection of the Lemon test and the Establishment Clause. Taking into account the totality of Torgerson's actions, three questions need to be asked: first, did the government's practice reflect a clearly secular purpose? [197] Second, did the government's practice have a primary effect that neither advanced nor inhibited religion?[198] Finally, did the government's practice avoid excessive entanglement with religion?[199] My answers are no, no, and no.

A recent Fifth Circuit decision, Doe v. Duncanville Independent School District,[200] not only sheds light on the answers but also bears a striking similarity to the Rachel Bauchman case.[20]1 Duncanville involved a twelve-year-old girl who had qualified to play on the school's basketball team.[202] She was part of a physical education class specifically designed for members of the basketball team.[203] In addition to the basketball team, Doe also joined the choir. She received academic credit for both activities.[204]

The basketball team activities that were of questionable religious character included the coach's recitation of the Lord's Prayer at practices, games, and on the bus traveling to away games.[205] While Doe was a member of the choral program, she was required to sing the choir's theme songs, "The Lord Bless You and Keep You" and "Go Ye Now in Peace."[206] Not wanting to single herself out, Doe took part in these programs.[207] However, after discussing it with her father, she realized that she was not required to participate and opted out of the prayers.[208] Unfortunately, her nonparticipation drew attention from spectators and her fellow students, who singled her out and questioned her beliefs.[209]

The Fifth Circuit held that the school district's practice of allowing its employees to participate in and/or supervise student prayers during basketball practices and games violated the Establishment Clause.[210] However, the court found that the school district's practice of allowing the choir to use Christian religious songs as its theme songs did not violate the Establishment Clause.[211] The court acknowledged that "the principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause."[212] In holding that the prayers at basketball practices and games violated the Establishment Clause, the court stated:

This is particularly true in the instant context of basketball practices and games. The challenged prayers take place during school-controlled, curriculum-related activities that members of the basketball team are required to attend. During these activities DISD coaches and other school employees are present as representatives of the school and their actions are representative of DISD policies.[213]
As for the choir's theme songs, the court held that "[r]eligious songs may be sung, however, for their artistic and historic qualities if presented objectively as part of a secular program of education."[214] Thus, Duncanville turns on the objective presentation of the choir's songs.[215]

The facts of Rachel's case appear to demand a different result. Torgerson's actions violated the first prong of the Lemon test because they did not clearly reflect a secular purpose. The choir's repertoire consisted solely of Christian songs, and Torgerson refused any attempt to balance the choir's program.[216] Furthermore, this was not an isolated incident. Many of Torgerson's former students voiced concerns similar to those expressed by Rachel.[217] In addition, the choir performed concerts at various community churches, where it participated in Christian religious services.[218]

As to the second part of the Lemon test, the primary effect of Torgerson's directing of the choir was a blend of music for music's sake and an advancement of the teacher's own religion, as well as an inhibition of Rachel's religion. During his choir class, Torgerson repeatedly pressed his religious beliefs on his students, preaching that "Jesus d[ied] for our sins."[219] He also publicly emphasized Rachel's religious beliefs, stimulating anti-Semitic responses from her peers.[220] The totality of these circumstances fails to satisfy the second requirement of the Lemon test.

With respect to the third prong of the Lemon test, the whole process reflected an excessive entanglement with religion. The choir's extensive religious repertoire, its participation in religious services, and the choir director's steadfast stance against any secularization of the curriculum so entangled this public school with religion as to pressure Rachel's minority beliefs. Such actions threaten suffocation of the concept of religious freedom.


A rigorous application of the Lemon test would show that Rachel's First Amendment rights have been violated. From a policy perspective, this finding would be an appropriate result. Separation of church and state must once again become a judicial priority. The Rehnquist Court's thrust toward accommodation of religion is simply too threatening to the millions of Americans who do not follow the majority's creed.[221] The wall of separation envisioned by our founders and made explicit in the Establishment Clause[222] may crumble under the weight of too many decisions like Bowen,[223] Zobrest,[224] and Rosenberger.[225] The majority of Americans, including the orthodox and the fundamentalist, are free—truly free—to practice their beliefs, but those beliefs should not be foisted upon Americans of a different faith or of no faith. Only the Supreme Court's interpretation of the First Amendment stands in the way.