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On the other hand, the Establishment Clause does not prevent the government from
funding the secular activities of religious people or institutions.17 Nor does the
Establishment Clause forbid the government from providing funds or services that may
benefit or support religious instruction or worship incidentally or indirectly.18 Accordingly,
the Supreme Court has repeatedly allowed government-funded educational benefits to be
used to advance religious education, so long as the benefits are offered to the religious
and nonreligious alike, and the decision to use the benefits for religious purposes is the
individual’s, not the government’s.19
No governmental religious indoctrination. This prohibition is based on the principle against
compelling taxpayers to support religious instruction, as discussed above, as well as two
related principles: that government is theologically incompetent,20and that government
should not take sides in religious controversies or otherwise insert itself into religious
affairs.21 In practice, these principles have been taken to prohibit school-sponsored
religious instruction or worship in public schools,22 and the direct public funding of
religious instruction or worship in religious schools.23
Importantly, the prohibition of government indoctrination does not forbid the government
from providing instruction in public schools about the Bible, Christianity, or other religions
from a secular and nondevotional perspective.24 Although the Supreme Court made clear
almost 50 years ago—at the same time it struck down government-sponsored devotional
studies—that the government may fund and provide education about religion, public
schools have not offered such instruction widely, and court cases have been few. But in
recent years, various groups have offered Bible curricula designed to comply with
constitutional requirements for use in public schools, so litigation on whether the curricula
succeed in meeting those standards is likely to follow.
No government endorsement of religion. More recently and controversially, the Supreme
Court has interpreted the Establishment Clause to forbid the government from “endorsing”
religion. This prohibition has emerged over the last 20 years or so, mainly at the initiative
of Justice Sandra Day O’Connor and mainly in the context of government-sponsored
religious expression on public property, such as Christmas and Hanukkah displays and
monuments representing the Ten Commandments.25Under the endorsement doctrine,
courts will inquire whether a hypothetical “reasonable observer,” who is familiar with the
full history and context of the religious expression at issue, would deem the government to
have endorsed one, some, or all religions. This test has been criticized for relying too
heavily on the idiosyncratic judgments of individual justices, and for the corresponding
inconsistent results and lack of predictability, which, in turn, provide fertile ground for
litigation.
The Supreme Court has specified that the government is not prohibited from expression
that reflects or acknowledges the religiosity of the American people. The Constitution does
not require the government to adopt an attitude of “callous indifference” to the faiths of its
people, or to feign ignorance of them.26 The Establishment Clause also does not forbid
the government from expressing or engaging in a minimalist “civil religion,” which is
marked by references to a generic “God” or “Creator,” usually as the source and guarantor
of the inalienable rights of citizens.27 Although these general principles are well settled,
particular controversies continue to rage over how the principles should be applied, most
notably in the recent (and ongoing) constitutional challenge to the presence of the two
words “under God” in the Pledge of Allegiance.28

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