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"Jefferson's wall was a very different thing than the "high and impregnable wall" invented by Hugo Black."

Although you often hear the phrase "seperation of church and state" it is generally the Lemon Test (Lemon v. Kurtzman) that is applied. The most important recent application was in Kitzmiller et al. v. Dover Area School Board

The Lemon Test
1) Does the challenged legislation or activity have a legitimate secular purpose?;
2) Does the legislation or activity have a primary effect that neither advances nor inhibits religion?
and
3) Does the legislation or activity excessively entangle government with religion?

That sounds reasonable to me.

How would you change it?

Note that, as far as I can tell (corrections welcome, I could be wrong), the Lemon opinion fails to reference the 10th Amendment in any way, just as the pivotal Cantwell and Everson opinions failed to mention it. Crooked Justices twisted the honest interpretation of the 14th A. in Cantwell just as they twisted the reasonable interpretation of the establishment clause in Everson.

Cantwell v. State of Connecticut 1940
http://tinyurl.com/bvoc3

Everson v. Board of Education of Ewing TP 1947
http://tinyurl.com/8q3d8

Also, please consider appling the "10th Amendment test" to the opinions of any questionable c&s court cases.

The Lemon Test 1) Does the challenged legislation or activity have a legitimate secular purpose?; 2) Does the legislation or activity have a primary effect that neither advances nor inhibits religion? and 3) Does the legislation or activity excessively entangle government with religion? That sounds reasonable to me. How would you change it?

Hi, ndt. Just saw your question. I don't think many people like the Lemon test although afaik it continues to be used. It is useful to notice, that the first branch, as you cite it, has nothing whatsoever to do with state/religion issues at all. It in itself is simply an arrogation of what ought to be legislative function(to determine the legitimacy of 'secular purpose'). It is not the province of judges to rule on the "purpose" of legislators. They are to rule on what the law is, and whether it conforms to Constitutional provisions, whatever its putative "purpose."

The second branch is historically irrelevant in that it addresses "religion" generically rather than in terms of government favoring a particular sect or denomination or faith, over others. There should be no judicial objection to an action which has the effect of "advancing religion", so long as it fosters the advance of any religion which chooses to respond to the act at hand. History and writings of the Founders are clear that the posture of government toward religious practice generically was intended to be a benign accommodation of all religions, hence the free exercise clause. This posture was written into organic law, incidentally, in the Ordinance of 1787, which explicitly recognized the importance of fostering religious faith in the citizenry of the new nation. That law is still on the books, right after the Declaration of Independence This second test does violence to the free exercise clause while failing utterly to relate properly to the establishment clause.

The third branch begins to address the actual issue, but also should be narrowed to relate to relative preferential treatment by government of one faith over others. Only in this context does the "entanglement" issue carry weight. If government treats all religions equally, either through creation of a supportive environment or through benign neglect, it is in harmony with the intent of the first amendment.

I would require judges to decide these cases on the basis of discriminatory impact of the law, and the need for "equal protection" of all religions under the law.