a. Kennedy is “content” with the majority applying Lemon, but has some reservations. The Lemon requirement that the primary effect of the challenged government practice “is one that neither advances nor inhibits religion,” has been treated by the majority too categorically and formalistically. But the history of the Establishment Clause has never been intended to create a “relentless extirpation of all contact between government and religion.”
b. Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage. The U.S. Supreme Court cases disclose two limiting principles on the First Am.:
(1) Government may not coerce anyone to support or participate in any religion or its exercise; AND
(2) Government may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact “establishes a [state] religion or religious faith, or tends to do so.”
Examples of a violation of the above two principles are direct compulsion to observance, taxation to supply substantial benefits to a state-established religious faith, etc. But non-coercive government action within the realm of flexible accommodation or passive acknowledgment of existing symbols does not violate the Establishment Clause.
1. Kennedy loves the phrase “reasonable accommodation.” Thus, nothing is wrong with “In God We Trust” on money or the pledge “One nation under God.”
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