Establishment Clause claims under the First Amendment are very rare. At least at the time of this writing, however, they are somewhat more in the limelight because of so-called “stay-at-home” orders imposed by governments as a result of the COVID-19 pandemic.
Litigants are, where appropriate, able to bring a civil damages claim under 42 U.S.C. § 1983 for a government violating the First Amendment (or other federal law). To prevail, a plaintiff must demonstrate (1) that a defendant was acting under color of state law and (2) that his/her/their conduct deprived a plaintiff of a right, privilege or immunity secured by the Constitution or federal law. 42 U.S.C. § 1983; Thomas v. Gunter, 32 F.3d 1258, 1259 (8th Cir 1994).
The relevant portion of the First Amendment provides that “Congress shall make no law respecting an establishment of religion.” The purpose of the Establishment Clause is to ensure “government neutrality in matters of religion.” Gillette v. United States Negre v. Larsen, 401 U.S. 437, 449 (1971). Government actions may comply with the Establishment Clause if: (1) it has a secular purpose, (2) its principal or primary effect neither advances nor inhibits religion, and (3) it does not foster an excessive entanglement with religion. ACLU Nebraska Found. v. City of Plattsmouth, Neb., 419 F.3d 772, 775 (8th Cir. 2005) (citing Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
There are “three main evils against which the Establishment Clause was intended to afford protection: sponsorship, financial support, and active involvement of the sovereign in religious activity.” In re Young, 141 F.3d 854, 861 (8th Cir. 1998).