The “Lemon test”—don’t take action without it

The “Lemon test”—don’t take action without it

Conrad Goeringer

It can be one of the most effective tools in defending the constitutional separation of church and state. But as Jon Murray wrote in The American Atheist Magazine (Vol. 33, No. 3) years ago, the so-called “Lemon test” is a subject “often tossed about in discussion of First Amendment issues, yet very rarely spelled out.”

Atheists need to be familiar with the Lemon test, and the Supreme Court case (Lemon v Kurtzman ,1971) which formulated it, before consideration of legal action, or even contacting public officials about a possible violation of the First Amendment.

The Lemon test is also known as the three-pronged test because it has three elements. Lemon v Kurtzman was argued on March 3, 1971 and decided in a 7-0 vote of the court on June 28, 1971. At issue was the constitutionality of two state statues, the Rhode Island Supplement Act of 1969 and the NonPublic Elementary and Secondary Education Act passed in the Pennsylvania legislature in 1968. Under these laws, public money was used to pay the salaries of teachers in parochial and other private schools for the teaching of secular topics. The test was articulated by Chief Justice Warren Burger, who ironically enjoyed the reputation of being a conservative jurist. He wrote:

Every analysis in this area (Establishment Clause cases) must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v Allen, 391 US 236, 243, 68 5. Ct, 1923, 1926, 20 L.Ed. 2d 1060 (1968); finally, the statute must not foster an excessive government entanglement with religion,” Walz v Tax Commission, 397 US 664 at 674, 90 S. Ct. at 1414,25 L.Ed. 2d 697 (1970).

The thrust of lemon was, at least on paper, to expand the protections of the Establishment Clause of the First Amendment which states in whole:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise there; or abridging the freedom of speech, or of the press, or the right of the people peaceable to assemble, and to petition the Government for a redress of grievances.

That portion referred to as the “Establishment Clause” is in italics, with the “Free Exercise” (or “freedom of speech”) clause constituting the remainder of the Amendment. This first of the Amendments found in the Bill of Rights was ratified on December 15, 1791.

“Establishment of religion” has meant many things in both a legal and historical context. Several of the original colonial governments maintained “established” churches, often giving them public aid and support, paying the salaries of ministers, and requiring membership by citizens. Isaac Kramnick and R. Laurence Moore write in The Godless Constitution, The Case Against Religious Correctness, of how New England colonies were often the worst offenders:

The churches of Massachusetts Bay and Connecticut were established churches. That is, the residents of the colonies were taxed to pay for their upkeep and for the salaries of ministers. It did not matter whether they were members of a church not. It did not matter whether they wanted to be members of some other kind of church, for during the first decades of settlement no other church was allowed. Only male church members could vote in civil elections, and the law required everyone to attend the local church chartered by the civil government. Ministers might not hold civil office, but they delivered sermons on election day and frequently consulted with civil magistrates…

It was no wonder, then, why men such as Thomas Jefferson and James Madison sought to ‘disestablish” the various churches, relieving citizens of the onus of supporting the denominations through taxation, or requiring membership in a particular church — or any church — as a requirement for exercising certain rights.

The issues raised in Lemon v Kurtzman may seem like a distant concern from the practices of the colonial era, but they touched upon a question which the legal system wrestles with to this day — the public funding of religion. Ronald C. Kahn, Professor of Political Science at Oberlin College noted:

The Court was particularly concerned that teachers in a parochial school setting, unlike the mere provision of secular books, may improperly involve faith and morals in the teaching of secular subjects; further, continuing surveillance by states to avoid this situation would none the less involve ‘excessive and enduring entanglement between state and church.’

(The Oxford Companion to the Supreme Court of the United States, ad. Kermit L. Hall, Oxford Press, 1992).

The “Lemon test” would appear to provision Atheists and other “strict separationists” with a clear-cut advantage in nearly all cases involving possible violations of the Establishment Clause. Religious right organizations have denounced the thinking in Lemon v Kurtzman , arguing that the First Amendment was only designed to protect religious bodies from the intrusion of government. On the bench, Chief Justice William Rehnquist has denounced the three-pronged test as well, and suggested that Jefferson’s reference to a “wall of separation” between state and church has no basis in either American history or jurisprudence.

Lemon has its critics among some separationists as well. Leonard Levy, editor of the Encyclopedia of the American Constitution and author of “The Establishment Clause: Religion and the First Amendment” (1986, Macmillan) considers the three-pronged test as creating only the illusion of an objective standard for judicial deliberation. He adds that justices employing the Lemon standard often arrive at contradictory results, and that some reject the test altogether in their rulings.

Indeed, Lemon can be an obstacle which a determined court or public official can ignore or, using a sufficient degree of legal sophistry, manage to circumvent. Levy notes the occasion where “justices make distinctions that would glaze the minds of medieval scholastics,” as in the case where the court would uphold public aid to religious schools in the form of textbooks, but not pay for teachers salaries since they might use a secular setting as a platform for religious proselytizing. The same may be said of those countless cases where courts or other public bodies are asked to decide issues such as displays of nativity scenes at Christmas-time on government property, or posting the Ten Commandments in public school buildings. Using the threepronged standard, it would appear that such issues are clearly prohibited under the constitution. Defenders of those practices, however, marshal volleys of disingenuous claims — often in response to the “Lemon test” — and even argue that creches or Commandments plaques h ave little or nothing to do with sectarian religion!

Be prepared, then, when citing Lemon v Kurtzman to encounter those musings that “would glaze the minds of medieval scholastics.” Unconstitutional practices, for instance, may be defended by simply denying that they promote religion. Prayers at city council meetings have often been justified as a kind of parliamentary “gavel” that creates an aura of solemnity and dignity around the proceedings. There is also the “civic religion” argument that an activity such as prayer or the display of a religious symbol may have some residual religious content, but serves a greater, secular purpose — perhaps as a reminder of the origin of law, or as a manifestation of “heritage” and community practice. Justice William Brennan, considered a liberal on the high bench, even opined that many mentions or depictions of “God” in the public square are supposedly permissible “chiefly because they have lost through rote repetition any significant content.”

The fact that these practices are criticized in numerous court cases, and vocally supported by religious groups which see them as proof that America is a ‘Christian nation” suggests the paucity of Brennan’s reasoning.

Another canard is when the issue of “ceremonial deism” is raised. Here, too, a variety of suspect practices such as legislative chaplains, the inclusion of the phrase “under God” in the Pledge of Allegiance, or the religionized national motto of “in God We Trust” are defended as examples of public sensibilities that are more about government and history than sectarian religion, and thus serve a secular practice. Justice Blackman once declared that these practices “do not demonstrate the government’s allegiance to, or endorsement of, the Christian faith.” As Leon Levy points, out, though, the distinctions between what runs afoul of the Establishment Clause and those activities which find constitutional shelter under the “ceremonial deism” argument are often subjective and arbitrary.

“How the Court distinguishes ‘Gloria in Excelsis Deo’ (prohibited) from ‘Christ the Lord’ in carols (allowed) is a mystery,” Levy notes in his book on Establishment Clause history.

Despite the fact that it can at time be ignored or minimized by government attorneys, legal solons and judges, the “Lemon test” still provides us all with an instrument capable of preserving at least some semblance of state-church separation. It provides a framework within which we can argue that many practices are clearly improper (direct aid to parochial schools, Sunday “blue laws” and compelling youngsters to pray), and that others may violate the Constitution. The mere mention of the three-pronged test enunciated in Lemon v Kurtzman can often serve notice on public officials that a practice — real or proposed — may result in costly and contentious litigation.

Lemon is not, however, a magical formula for ending abusive practices we disagree with, especially if they are rooted in historical ritual. The local nativity creche can end up being “secularized” thanks to a bevy of plastic Santas, or perhaps by being placed alongside seasonal displays from other religions. The display of the Commandments can, at times, survive judicial review if it is done in a crafty manner alongside other historical documents. But the “Lemon test” raises the bar for those who would push religion further into the public square, the halls of government, public school classrooms and other venues. Their job becomes harder, and more expensive. As imperfect as it may be, the standard set in Lemon v Kurtzman is no “lemon,” but often an effective weapon in the culture war to defend Jefferson’s “wall of separation” between church and state.

COPYRIGHT 2002 American Atheists Inc.

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