The Ninth Circuit Court of Appeals, comrpising Ca and some other states, is a harbinger of jurisprudence. It is extremely respected along with the 2d Cir.(NY) and the D.C. Circuit (all federal agencies). These courts have much more clout than appears from reading an encyclopedia article.
I spent months and months researching Establishment Clause jursiprudence. Indeed, I wrote my legal writing sample on one facet. Besides barring an outright establishment such as the Church of England in England, it is unclear what the boundaries are. These cases are almost always decided 5-4 and are politicized. Researching the Founder's intent with great detail, it is impossible to say what they meant besides no federal church. It is interesting b/c the Bill of Rights were only applied to the states with the adoption of the Fourteenth Amendment after the Civil War. It deals with equal protection of the laws and due process of law. Several states had their own established religions which were const'l. I need to research why such provisions lapsed.
Each side claims some author to determine what Establishment means. Hamilton, Madison and Jay are frequently quoted b/c of thier outsized role in drafting the Const'n. Indeed, the orig. const'n had no Bill of Rights. The states refused to ratify the document without an express Bill of Rights. Yet the const'n was very much a political result of compromise between state factions and strong personalities at the const'l conveniton. It was deliberative. I don't see how one Founder speaks for the whole unless there were a vote. The const'n was submitted for ratification. The thoughts of those in the state conventions should also be considered.
I feel that Establishment was left vague purposefully b/c no clear consensus emerged as to its contours. There was no litigation under it until around the Civil War, which is an enormous stretch of time for something so volatile today. The current court has decided to keep using a much maligned (even by the Court) three-prong test, called Agostini/Felton. There are three prongs to the test. If you Google it, you can find the formulation. (I am lazy)
The test is cumbersome in practice. The clear trend in the 60s was to a separatist view that required strict separation between church and state. With the addition of conservative judges, most of whom are Catholic, the pendulum has swung alarmingly to the other end, accomodationist. Government funding of projects is often upheld if the grant goes to individuals who are free to choose a religious program. Secular alternatives must exist. School vouchers are impermissible for impressoinable elementary and school children but fine for college students.
Justices Kennedy and O'Connor were frequently the swing votes in these cases. I assume Kagan and Sontameyor will tend to be separatist.
Fundamentally, though, this is a Free Exercise case. The Court is always on the side of religious expression. There are very few examples in the opopsite direction. It is almost an absolute right that is zealously guarded. The exceptions are criminals or civil laws that apply to everyone. Bigamy is a crime b/c all people are prosecuted for bigamy. A very recent case is the use of halucogens by Native Americans in religoius ceremonies. Law was upheld.
There is a congruence here of Free Exercise and Establishment Clause. One of the prongs mentioned above is whether govt. involvement excessively entangles govt into a religion. Here, courts would have to make theology decisions. They will not do so. There are some laws that reflect community morals and beliefs strongly. Freedom of Religoin is perhaps the highest one in this country, founded by religious refugees seeking liberty.
The public marketplace is a much better way to deal with this issue. People in general should know the consequences of falling away from a cult. Courts do not belong in that process. Ads in newspapers and online, calls to radio shows, etc. are much more rewarding areas.
