USA

 

The history of religion in the United States is essentially a story of tension between deep-seated faith and an evolving commitment to pluralism. It shaped the country's founding, fueled its greatest social reform movements, and remains a powerful force in modern cultural shifts.

To understand how a nation founded primarily by European Protestants became one of the most religiously diverse societies on Earth, it helps to look at it through five major eras.

1. The Colonial Era & Pre-Revolution (Pre-1776)

The Search for Purified Faith

Before European settlement, Indigenous peoples practiced a vast array of land-based, animistic spiritual traditions. European arrival fundamentally shifted the religious landscape.

• The Puritans: Settling New England in the 1630s, they sought to create a "City upon a Hill"—a model Christian community. While they fled persecution in England, they were generally intolerant of dissent within their own colonies, famously exiling figures like Roger Williams (who went on to found Rhode Island on the basis of religious liberty).
• The First Great Awakening (1730s–1740s): This was the first major American religious revival. Preachers like Jonathan Edwards and George Whitefield emphasized emotional, personal conversion over rigid church hierarchy. It democratized religion, suggesting that if individuals could judge their ministers, they could also judge their colonial rulers—laying the cultural groundwork for the American Revolution.

2. Founding and the Constitutional Framework (1776–1800)

The Great Experiment of Separation

The U.S. Constitution and the Bill of Rights pulled off a radical political experiment: separating church and state to protect both the government and religious practice from mutual corruption.

The Establishment & Free Exercise Clauses: The First Amendment (1791) prohibited the federal government from establishing a national religion and guaranteed citizens the right to practice their faith freely.

This framework was heavily influenced by two distinct groups:

1. Enlightenment Deists: Figures like Thomas Jefferson and Benjamin Franklin, who believed in a Creator but favored reason over dogma. Jefferson famously coined the phrase "wall of separation between church and state."
2. Evangelical Dissenters: Baptists and Presbyterians who feared that any state-controlled church would inevitably suppress minority faiths.

3. The 19th Century: Awakenings, Reform, and Immigration (1800–1900)

Fervor, Division, and Rapid Growth

The 1800s saw American religion expand drastically, split over the defining crisis of slavery, and adapt to massive global immigration.

• The Second Great Awakening (1800–1840s): This massive wave of revivals swept across the frontier (camp meetings) and upstate New York (the "Burned-over District"). It emphasized that anyone could be saved through free will. This democratic theology directly birthed major social reform movements: abolitionism, women's suffrage, and the temperance movement. It also spawned uniquely American religions, most notably The Church of Jesus Christ of Latter-day Saints (Mormonism).
• The Civil War Schisms: Religion heavily framed the Civil War. Both North and South used Biblical text to justify their positions. Major denominations (Methodists, Baptists, Presbyterians) split over the issue of slavery—fissures that took generations to heal.
• The Shift in Demographics: Mid-to-late 19th-century immigration brought millions of Irish, Italian, and German Catholics, alongside Eastern European Jews. This triggered waves of anti-Catholic nativism, but permanently broke the monolithic Protestant grip on American culture.

4. The 20th Century: The Culture Wars and Pluralism (1900–2000)

Modernism vs. Fundamentalism

The 20th century was defined by a widening theological rift and a massive broadening of what "American religion" meant.

• The Fundamentalist-Modernist Controversy: The 1925 Scopes Monkey Trial put the battle between religious fundamentalism (literal Biblical interpretation) and modernism (incorporating science and evolution) on public display.
• The Civil Rights Movement: Led largely by Black churches and figures like the Rev. Dr. Martin Luther King Jr., the movement utilized the prophetic tradition of the Bible and theological arguments for human dignity to dismantle Jim Crow laws.
• The Rise of the Religious Right: In the late 1970s, conservative Christians mobilized into a highly organized political force (e.g., the Moral Majority). Spurred by reactions to the sexual revolution, legal abortion (Roe v. Wade), and the banning of organized prayer in public schools, they aligned heavily with the Republican Party.
• The Immigration Act of 1965: By dismantling the old quota system based on Northern European heritage, this law opened the doors to millions of immigrants from Asia and the Middle East, rapidly expanding the presence of Islam, Hinduism, Buddhism, and Sikhism in the American fabric.

5. The 21st Century: The Rise of the "Nones" (2000–Present)

The Era of Disaffiliation

Today, the most significant trend in American religious history is the rapid growth of the "Nones"—those who check the box for "no religious affiliation" on surveys.

• Statistical Shift: According to data from organizations like the Pew Research Center, roughly 30% of American adults now identify as religiously unaffiliated (atheist, agnostic, or "nothing in particular"). This is a massive jump from less than 10% in the late 20th century.
• Spirituality Over Religion: Many "Nones" aren't necessarily anti-spiritual; rather, they are institutional dropouts who prefer individualized spiritual practices over formal church dogma.
• Political Polarization: The tight knot between conservative politics and organized religion over the last few decades has accelerated the departure of younger, socially progressive Americans from formal religious institutions.

• First Great Awakening
  1730s–1740s
  George Whitefield and Jonathan Edwards lead emotional revivals, democratizing faith across the 13 colonies.
• The Bill of Rights Ratified
  1791
  The First Amendment legally establishes the separation of church and state and guarantees free exercise.
• Second Great Awakening
  1800–1840s
  Frontier revivals fuel massive social reform movements (Abolition, Suffrage) and birth home-grown faiths like Mormonism.
• The Scopes Monkey Trial
  1925
  High-profile legal battle highlights the growing cultural rift between Christian fundamentalists and modernists.
• The Immigration Act
  1965
  A shift in immigration law allows for a massive influx of diverse populations, significantly increasing non-Christian religious populations.
• The Rise of the 'Nones'
  21st Century
  Religiously unaffiliated Americans grow to nearly 30% of the adult population, marking a major era of secularization. 

 

The legal boundary between church and state in the United States is anchored in the sixteen words of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Because the text itself is brief, the actual architecture of American religious liberty has been built brick-by-brick through landmark Supreme Court rulings. These cases generally fall into two distinct legal buckets: The Establishment Clause (preventing government from favoring or entangling itself with religion) and The Free Exercise Clause (protecting the right of individuals to practice their faith).

Here are the pivotal cases that shaped the modern legal landscape.

1. The Establishment Clause (The "Wall of Separation")

For the first century and a half of U.S. history, the Supreme Court rarely dealt with the Establishment Clause because it initially applied only to the federal government. That changed in 1947.

Everson v. Board of Education (1947)

• The Issue: A New Jersey town used tax dollars to reimburse parents for the cost of sending their kids to school on public buses, including parents sending kids to Catholic parochial schools.
• The Ruling: The Court ruled the practice constitutional because the benefit went to children, not the church. However, this case is a landmark because the Court officially "incorporated" the Establishment Clause, making it apply to state and local governments for the first time. Writing for the majority, Justice Hugo Black explicitly invoked Thomas Jefferson’s metaphor, declaring that the First Amendment erected a "wall of separation between church and state" that must be kept high and impregnable.

Engel v. Vitale (1962) & Abington School District v. Schempp (1963)

• The Issue: New York schools had students recite a state-written, non-denominational prayer every morning (Engel); Pennsylvania required daily Bible readings (Schempp).
• The Ruling: The Court struck down both practices. It ruled that even if a prayer is voluntary and non-denominational, a government-sponsored school cannot use its authority to promote religion. These rulings set off massive public backlash but established the classroom as a strictly neutral space.

Lemon v. Kurtzman (1971)

• The Issue: Could states use public funds to pay for secular textbooks and teachers' salaries at private religious schools?
• The Ruling: No. To settle the issue, the Court established the famous "Lemon Test," a three-pronged checklist that every law had to pass to stay constitutional:
  1. The law must have a secular legislative purpose.
  2. Its primary effect must neither advance nor inhibit religion.
  3. It must not foster an "excessive government entanglement" with religion.

Note on Modern Jurisprudence: The Lemon Test dominated for 50 years, but it was frequently criticized for being confusing. In recent years—specifically in Kennedy v. Bremerton School District (2022)—the conservative-majority Court officially abandoned the Lemon Test, replacing it with a standard that evaluates government actions based on "historical practices and understandings."

2. The Free Exercise Clause (The Right to Practice)

The boundary here is all about limits: Does a person's religious belief exempt them from following neutral laws that apply to everyone else?

Reynolds v. United States (1925)

• The Issue: George Reynolds, a member of the Church of Jesus Christ of Latter-day Saints, was charged with bigamy under federal law. He argued his religion commanded him to practice polygamy.
• The Ruling: The Court ruled against Reynolds, drawing a sharp distinction between belief and action. The government cannot regulate what you believe, but it can regulate your actions if they violate standard criminal law. If religious duties could override civil law, the Court argued, every citizen would become a law unto themselves.

Employment Division v. Smith (1990)

• The Issue: Two Native American counselors were fired from their jobs after ingesting peyote as part of a traditional religious ceremony, and were subsequently denied state unemployment benefits because they were fired for "misconduct."
• The Ruling: In an influential opinion written by Justice Antonin Scalia, the Court ruled that as long as a law is neutral and generally applicable (meaning it doesn't target a specific religion), the First Amendment does not protect individuals from having to follow it. If the state bans peyote for everyone, religious practitioners don't get a pass.

3. The Modern Shift: Accommodation and Religious Speech

In recent decades, the Supreme Court has significantly shifted its direction. The current Court leans heavily toward accommodation—ruling that strictly excluding religious groups or speech from public spaces can actually constitute discrimination against religion.

Burwell v. Hobby Lobby Stores (2014)

• The Issue: Under the Affordable Care Act, corporations were required to provide health insurance that covers contraceptives. The owners of Hobby Lobby objected on Christian religious grounds.
• The Ruling: The Court ruled 5-4 that closely held, for-profit corporations could claim religious exemptions from federal mandates under the Religious Freedom Restoration Act (RFRA).

Kennedy v. Bremerton School District (2022)

• The Issue: A high school football coach was disciplined by his school district for kneeling at the 50-yard line immediately after games to offer a quiet, personal prayer, which students frequently joined.
• The Ruling: The Court ruled in favor of the coach. It held that his prayer was private speech protected by both the Free Speech and Free Exercise clauses, and that the school district could not suppress it simply out of fear that it might look like an Establishment Clause violation.

1. Establish the Principle of Incorporation
   Everson (1947)
   The Court rules that state and local governments—not just Congress—are bound by the separation of church and state.
2. Create a Strict Judicial Standard
   Lemon (1971)
   The Court creates the 'Lemon Test' to strictly police government entanglement with religious schools and institutions.
3. Narrow Free Exercise Exemptions
   Smith (1990)
   The Court decides that neutral, general laws apply to everyone, even if those laws accidentally infringe on a religious practice.
4. Pivot to Religious Accommodation
   Kennedy (2022)
   The modern Court officially discards the Lemon Test, favoring historical tradition and stronger protection for individual religious expression in public spaces.

   When the Supreme Court officially set aside the Lemon Test in Kennedy v. Bremerton School District (2022), it marked the most significant shift in Establishment Clause jurisprudence in over fifty years.

   For half a century, the Lemon framework acted as a strict filter to keep government and religion separate. By abandoning it, the Court changed not just the rulebook, but the underlying philosophy of how church-state issues are decided in America.

   1. The Legal Shift: From Abstract Tests to "History and Tradition"

   Under the old system, a court had to look at a government action and ask: Does this have a secular purpose? Does it advance religion? Does it cause excessive entanglement?

   In Kennedy, the majority declared that this abstract, three-pronged test caused unpredictable results and constant litigation. In its place, the Court mandated a new standard: the Establishment Clause must now be interpreted by reference to "historical practices and understandings."

5. The New Question: Instead of asking if a government action entangles church and state, lower courts must now ask: Did the Founding generation view this specific type of practice or display as an illegal establishment of religion?
6. The Burden of Proof: To defend or challenge a law, lawyers must now dig deeply into 18th- and 19th-century history to find historical analogues. If a practice has a long lineage in American public life, it is highly likely to be ruled constitutional today.

2. Practical Consequences in Public Schools

Because public schools were the primary battleground for the Lemon test, they are where the practical consequences of Kennedy are hitting fastest and hardest.

• Religious Expression by Teachers and Coaches: Under Lemon, school districts routinely restricted teachers, coaches, and staff from engaging in visible religious practices (like praying on a field or wearing religious garb) out of fear that the school would look like it was endorsing religion. Under the new standard, as long as a teacher's prayer or expression is "private" and not a mandatory part of class instruction, the school cannot suppress it without violating the teacher's own Free Exercise and Free Speech rights.
• A Shift in What Constitutes "Coercion": The Court narrowed the definition of coercion. It is no longer enough to argue that students feel "subtle psychological pressure" to join a coach in prayer just to fit in or get playing time. To violate the Establishment Clause now, the government must generally engage in actual, direct coercion—like forcing attendance or punishing dissent.
• Legislative Testing of Boundaries: Emboldened by Kennedy, several state legislatures have pushed new laws to bring religion back into public classrooms. For example, recent mandates and proposals in states like Texas and Louisiana requiring the display of the Ten Commandments, or Oklahoma's directives regarding biblical instruction, are direct results of this changing legal tide. Under the old Lemon test, these laws would have been struck down instantly; under the "history and tradition" standard, their legal fate is fought on entirely new ground.

3. Practical Consequences for Public Spaces and Funding

Beyond schools, the abandonment of Lemon fundamentally alters how public funds and public spaces intersect with faith.

• Religious Displays on Public Land: Monuments of the Ten Commandments, nativity scenes on town squares, and historical crosses on public land are now heavily protected. If a monument has historical longevity, the Court views it as a secularized piece of community history rather than an illegal religious endorsement.
• Equal Access to Public Dollars: For decades, states strictly barred religious schools or charities from receiving state grants or tuition vouchers to maintain a clean break between tax dollars and church coffers. The current Court’s framework views the blanket exclusion of religious groups from neutral public benefit programs as outright discrimination. If a state funds private secular education or community initiatives, it must generally allow religious entities to participate on equal footing.

Summary of the Jurisprudential Pivot

| Attribute | Under the Lemon Test (1971–2022) | Under the Kennedy Standard (2022–Present) | | :--- | :--- | :--- | | Core Judicial Goal | Prevent the appearance or effect of government endorsing religion. | Prevent direct government coercion or historical outliers. | | Primary Tool | A three-pronged abstract checklist focusing on purpose and entanglement. | An analysis of early American "historical practices and understandings." | | Public School Tone | Strictly secular; school employees keep faith highly compartmentalized. | Accommodating; school employees retain rights to personal religious expression. | | Public Funding | Presumed unconstitutional if tax dollars flow directly to religious functions. | Permissible, provided the funding mechanism is neutral and available to all. |

The dissenting opinion in Kennedy v. Bremerton School District (2022) was written by Justice Sonia Sotomayor and joined by Justices Stephen Breyer and Elena Kagan.

The dissent vehemently disagreed with the majority’s ruling, arguing that the decision fundamentally mischaracterized the facts of the case, ignored decades of established precedent protecting public school children, and severely undermined the separation of church and state.

1. The Fact-Divergence: "Private" vs. Highly Public Prayer

The foundational disagreement between the majority and the dissent was over what actually happened on the football field. While the majority described Coach Kennedy’s prayers as "private, personal, and quiet," Justice Sotomayor argued this completely ignored the record.

To make her point, she took the unusual step of including photographs directly in the text of her dissenting opinion to show what the prayers actually looked like.

• A Public Spectacle: The dissent pointed out that Kennedy’s prayers were delivered at the 50-yard line, immediately after games, while he was still on duty as a state employee, wearing school-branded gear, and surrounded by cameras, spectators, and players.
• The Intent to Broadcast: Sotomayor highlighted that Kennedy had gone on a media tour to publicize his actions. The dissent argued that treating a media-saturated, midfield demonstration as a "private" act of devotion was a complete distortion of reality.

2. The Core Argument on Student Coercion

The heart of the dissent’s legal argument rested on how the ruling would affect school children. Sotomayor argued that the majority had adopted a dangerously narrow definition of coercion, ignoring the immense social and systemic pressure unique to a school environment.

• The Power Dynamics of Coaching: The dissent emphasized that a high school coach wields immense authority over students. Coaches decide who plays, who gets benched, who gets captaincy, and who gets recommended for college scholarships.
• Subtle but Powerful Coercion: Sotomayor wrote that when a figure with that much power engages in public prayer, students feel an intense, implicit pressure to join in—not necessarily out of religious conviction, but out of fear of being marginalized or losing playing time.
• Real-World Impact: The dissent noted that the record showed this coercion had already occurred. Parents had reported that their children participated in the prayers solely because they feared they wouldn't get to play if they didn't. One player, who was an atheist, explicitly stated he joined the team prayers because he worried he would lose his spot on the field. Sotomayor argued that by requiring proof of direct, overt command from the school to prove coercion, the majority was blind to how peer pressure and authority actually work on teenagers.

3. The Erosion of the Church-State Wall

The dissent argued that by abandoning the Lemon test and its focus on government endorsement, the majority was dismantling a vital constitutional safeguard that had protected religious minorities for generations.

• Upending the Balance: Historically, the Court tried to balance a government employee's right to free exercise with the school's duty to prevent an establishment of religion. Sotomayor argued that the majority had completely flipped this balance, elevating a single state employee's right to public expression above the rights of an entire community of students and parents to be free from state-sponsored religious pressure.
• The Danger to Pluralism: Sotomayor warned that weakening the Establishment Clause would inevitably harm religious minorities. If public school staff can use their official positions to lead or showcase their faith, schools will become battlegrounds for religious dominance, alienating non-Christian, non-religious, or minority-faith students.

The Core Clash: Majority vs. Dissent

• The Majority Saw: A private citizen and school employee being unfairly penalized by the government for engaging in a brief, personal act of faith.
• The Dissent Saw: A state official using his highly visible position of authority to conduct a public religious demonstration, implicitly pressuring vulnerable students to join him.

Sotomayor concluded her dissent with a stark warning about the future of American jurisprudence:

"Today's decision leads us down a perilous path... It undermines centuries of constitutional design and downplays the precise injury the Establishment Clause was meant to prevent."

Following the Supreme Court’s abandonment of the Lemon test in Kennedy v. Bremerton School District (2022), lower federal courts have entered an era of profound transformation—and considerable confusion.

Tasked with replacing abstract judicial formulas with an analysis of "historical practices and understandings," lower federal courts (district and circuit courts) are grappling with how to apply this originalist framework to modern church-state disputes.

The application of this standard across the federal judiciary has revealed several key legal and practical trends:

1. Disagreement Over What Counts as "History"

The most significant hurdle for lower courts has been defining the scope of the historical inquiry. Justice Gorsuch’s mandate in Kennedy did not provide a specific methodology for how far back courts must look, or what type of evidence proves a "tradition."

• The Problem of Conflicting Histories: Ideologically diverse judges are weaponizing history in opposing ways. In cases involving religious symbols or public prayers, conservative judges frequently point to 18th- and 19th-century traditions of public piety (such as legislative prayers or colonial schoolbooks) to justify religious integration. Conversely, liberal or centrist judges point to the history of the early Republic’s progressive dismantling of state-sponsored churches to argue that secular neutrality is the true American tradition.
• Judges as "Amateur Historians": Lower court judges have openly expressed frustration that the Kennedy standard forces them to act as historians rather than legal analysts, requiring them to sift through centuries of colonial archives and founding-era documents to decide modern administrative disputes.

2. Punting Facial Challenges as "Unripe"

Because the new standard requires an evaluation of concrete, real-world historical context, lower courts are increasingly hesitant to strike down laws before they are fully implemented.

A prime example is the litigation surrounding state laws mandating religious displays in schools, such as Louisiana's H.B. 71 and Texas's S.B. 10, which require classrooms to display the Ten Commandments.

• The Case of Roake v. Brumley (5th Cir. 2026): In reviewing Louisiana's law, a federal district court and an initial three-judge panel of the Fifth Circuit Court of Appeals initially blocked the law as facially unconstitutional under older precedents. However, when the full Fifth Circuit reviewed the case en banc, they vacated the injunction and dismissed the pre-enforcement challenge.
• The "Wait-and-See" Approach: The appellate court held that a facial challenge was premature ("unripe") because the actual posters had not yet been hung in classrooms. The court ruled that under the Kennedy standard, judges cannot evaluate whether a law violates the Establishment Clause in the abstract; they must wait for a concrete factual record of how the law is implemented, how the displays look in context, and whether actual coercion occurs. This creates a high threshold for plaintiffs attempting to stop religious legislation before it takes effect.

3. The Shift from "Endorsement" to "Strict Coercion"

Under the old Lemon test and the subsequent "Endorsement Test," lower courts routinely struck down government actions if a reasonable observer could perceive that the government was favoring or validating one religion over another. Lower courts have recognized that Kennedy completely dismantled this principle.

• Permissible Exposure: In post-2022 litigation (such as Nathan v. Alamo Heights ISD in the Fifth Circuit), lower courts are increasingly holding that merely exposing citizens or students to religious texts or symbols on public property does not violate the Constitution.
• The Direct Coercion Standard: For a plaintiff to win an Establishment Clause case now, lower courts generally require evidence of actual, tangible coercion—such as the state forcing financial support of a church, dictating religious doctrine, or threatening legal or academic penalties for non-participation. Psychological discomfort or feeling excluded as a religious minority is no longer considered a sufficient constitutional injury by many conservative-leaning federal circuits.

4. Expanding the Scope of Free Exercise Exemptions

While the Kennedy ruling technically addressed the Establishment Clause, lower courts have used its pro-religion trajectory to aggressively expand protections under the Free Exercise Clause.

• Exemptions from Neutral Laws: Prior to 2022, the prevailing standard (Employment Division v. Smith) held that religious individuals generally had to follow neutral, universally applicable laws. Since Kennedy, lower courts are much more willing to grant religious exemptions to private businesses, secular employers, and healthcare providers who object to federal or state mandates (such as anti-discrimination policies or reproductive healthcare coverage) on the grounds that America has a "history and tradition" of accommodating religious conscience.

• Supreme Court Decides Kennedy
  June 2022
  The Supreme Court officially discards the 51-year-old Lemon Test, ordering lower courts to use 'history and tradition' to judge the Establishment Clause.
• State Legislatures Push Boundaries
  2023–2024
  Emboldened by the new standard, states pass laws mandating classroom displays of the Ten Commandments, predicting they will survive the new test.
• The En Banc 5th Circuit Pivot
  2025–2026
  The full Fifth Circuit Court of Appeals rules in Roake v. Brumley, establishing that pre-enforcement facial challenges to religious displays are premature without an active, implemented factual record.

The Big Picture Takeaway: The lower federal courts are currently operating in a fragmented legal environment. While conservative-leaning circuits (like the 5th and 11th) are utilizing Kennedy to clear the path for broader religious expression and displays in public infrastructure, other circuits are strictly parsing founding-era history to try and preserve remnants of the traditional separation between church and state.

That fragmentation is the defining feature of the post-Kennedy legal landscape. We have moved from a unified (if often criticized) nationwide standard under Lemon to a map where your constitutional rights regarding church-state separation largely depend on which federal circuit you happen to live in.

This regional split is creating a highly polarized legal environment, visible across three distinct battlegrounds:

1. The Pro-Accommodation Circuits (The 5th, 6th, and 11th)

In these jurisdictions, covering much of the South and Midwest, federal judges are aggressively leaning into the Kennedy ruling to permit a much higher degree of religious integration into public life.

• The Legal Philosophy: These courts interpret "history and tradition" broadly. They view early American history as deeply intertwined with Christian practices, concluding that things like public prayer, monument displays, and state funding for religious school options are perfectly aligned with original intent.
• The Reality on the Ground: In these states, pre-enforcement challenges to religious legislation are frequently dismissed. This gives local school boards and town councils a green light to experiment with public expressions of faith, knowing local federal courts are unlikely to stop them unless overt, heavy-handed coercion is proven.

2. The Preservationist Circuits (The 2nd, 4th, and 9th)

In contrast, circuits covering the West Coast, Northeast, and mid-Atlantic are taking a much more restrictive view of the Supreme Court's mandate, trying to preserve the traditional "wall of separation" using the very same historical tools.

• The Legal Philosophy: These courts argue that the true "history and tradition" of the United States is one of protecting religious minorities from majoritarian overreach. They point to founding-era figures like James Madison and Thomas Jefferson to argue that the early Republic explicitly sought to dismantle state-sponsored religious influence.
• The Reality on the Ground: These circuits continue to strictly police public schools and municipal spaces. They are far more likely to find that highly visible religious displays or school-sponsored practices cross the line into unconstitutional coercion, arguing that forcing a religious minority to endure state-backed religious messaging is a form of historical coercion.

3. The Inevitable Return to the Supreme Court

This kind of deep geographic fragmentation is what lawyers call a "circuit split"—and it is unsustainable in constitutional law. A student's rights in California or New York cannot be fundamentally different from a student's rights in Texas or Louisiana under the same U.S. Constitution.

Because lower courts are arriving at diametrically opposed conclusions using the "history and tradition" standard, the Supreme Court will ultimately be forced to step back into the arena. The justices will have to clarify the ground rules: Exactly how much history is enough? Which historical documents take precedence? And where, under this new standard, does permissible accommodation end and illegal establishment begin?

Until then, the country remains legally divided, with the boundary between church and state being actively redrawn courtroom by courtroom.