The Supreme Court attempted to incorporate these three considerations under a single test in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). In Lemon the Court held that state and federal governments may enact legislation that concerns religion or religious organizations so long as the legislation has a secular purpose, does not have the primary effect of advancing or inhibiting religion, and does not otherwise foster excessive entanglement between church and state. Under this test, the Supreme Court held that the First Amendment prohibits schools from beginning each day with a 22-word, non-denominational prayer. Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). Such a prayer would be tantamount to the government sanctioning religion at the expense of agnosticism or atheism, the Court said, something not permitted by the Establishment Clause.
Similarly, the Supreme Court struck down a clergy-led prayer at a public school graduation ceremony as violative of the First Amendment. Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). By contrast, lower federal courts are split over the issue of whether a student-led, non-denominational prayer at a graduation ceremony violates the Establishment Clause, with some cases finding the prayers unconstitutional because they are initiated on school grounds at a school-sponsored activities and other cases finding no constitutional violation because the prayers are initiated by students and not public employees. However, the Supreme Court has ruled that the First Amendment does permit state legislatures to open their sessions with a short prayer each day. Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). The Supreme Court concluded that history and tradition have secularized this otherwise religious act.
The Court has produced seemingly inconsistent results in other areas of First Amendment law as well. In one case the Court permitted a municipality to include a nativity scene in its annual Christmas display, Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), while in another case it prohibited a county courthouse from placing a cross on its staircase during the holiday season. County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). In Allegheny the Court said that there was nothing in the county courthouse to indicate that the cross was anything other than a religious display, while in Lynch the Court said that the nativity scene was part of a wider celebration of the winter holidays.
The desire to avoid excessive entanglement between church and state has also produced a body of law that often turns on subtle distinctions. On the one hand, the Supreme Court ruled that public school programs violate the Establishment Clause when they allow public school students to leave class early for religious training in classrooms located on taxpayer-supported school property. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948). On the other hand, such programs pass constitutional muster if the students leave class early for religious training off school grounds, where all of the program’s costs are paid by the religious organizations. Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952).