July/August 2022 Issue

Also in this issue: Wisconsin High Court Rules Election Drop Boxes Are Illegal; Absentee Ballots May Only Be Mailed or Hand-Delivered by the Voter     |     Wisconsin Court of Appeals Affirms Town Board’s Right to Reconsider Nonconforming Use Recognition and Request Zoning Administrator Decision

Recent Developments Regarding the First Amendment’s Establishment Clause

Brian P. Goodman | 07.22.22

Several recent U.S. Supreme Court cases have illustrated that municipalities should exercise greater caution before prohibiting religious activities out of fear that the municipalities will be sued for violating the Establishment Clause of the First Amendment to the U.S. Constitution. The First Amendment reads in part, ​“Congress shall make no law respecting an establishment of religion…” In 1971, the U.S. Supreme Court issued a decision in Lemon v. Kurtzman that created the three-part ​“Lemon test” for establishing whether a governmental action violated the Establishment Clause. Subsequent case law further developed a test known as the ​“Endorsement Test” which asks whether, in the totality of the circumstances, a reason-able observer would perceive the governmental action as a religious endorsement.

Earlier this summer, the U.S. Supreme Court issued Kennedy v. Bremerton and overruled both the Lemon Test and the Endorsement Test. In their place, the U.S. Supreme Court has left little direction as to what the appropriate legal tests are for the Establishment Clause. In Kennedy, the Court stated that in place of those tests, the Establishment Clause must be interpreted by ​“reference to historical practices and understandings,” and that the line that governments draw between permissible and impermissible endorsement of religion has to accord with history and faithfully reflect the understanding of the Founding Fathers.

Unfortunately, this test leaves municipalities with very little practical guidance. Given the uncertainty and rapidly shifting legal landscape surrounding the Establishment Clause, municipalities should be cautious before asserting that any given action constitutes a violation of the Establishment Clause. Municipalities should evaluate the relevant historical practices and understandings surrounding any given activity and also consult with legal counsel.

In general, the current U.S. Supreme Court is hesitant to impute an individual’s religious actions and expression to the municipality; this limits the legal risk of the municipality violating the Establishment Clause. Additionally, municipalities should be cautious about banning religious entities fromparticipating in activities and programs within the municipality when the municipality allows non-religious entities to participate in those activities and programs. Finally, municipalities should be careful to treat all religious organizations similarly and not favor any given religion.