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NATIONAL FORUM OF APPLIED EDUCATIONAL RESEARCH JOURNAL
VOLUME 21, NUMBER 1, 2007--2008

THIRTY-FIVE YEARS OF LEMON
INFLUENCE: ANALYSIS AND
NATIONAL IMPLICATIONS

Robert L. Marshall
Western Illinois University

ABSTRACT

This article provides an analysis of significant challenges that have arisen over
the past 35 plus years when the three-prong Lemon test has been applied to
established traditional values predicated by the engrained religious heritage of
the United States coupled with the diversity of religion and social mores across
the nation. Even with criticism and challenges along the way, the Lemon test
has remained the litmus test influencing public school religion law challenges
for almost four decades.

L emon v. Kurtzman (403 U.S. 602, 1971), has become one of the
most significant public school religion decisions ruled upon by
the United States Supreme Court in history. The case involved
two state statutes, Pennsylvania and Rhode Island, which provided for
state educational funding aid to church-related elementary and
secondary schools. The issue litigated was whether state funding
provided to parochial schools violated the establishment clause of the
first amendment to the United States Constitution. Implications of the
ruling have been far reaching over the last 35 years and continue at the
present time. Lemon v. Kurtzman has literally been cited thousand of
times in other cases over the past 35 years. In only two instances since
1971, the United States Supreme Court in the land veered away from
the ruling and the three-prong test established by the case.

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5 NATIONAL FORUM OF APPLIED EDUCATIONAL RESEARCH JOURNAL

The unparalleled three prong test emerged from the ruling and
has become the jurisprudential precedent for cases to follow in
evaluating the establishment issue related to religion in public schools
across the states. Litigation and the ultimate decision of the case
yielded the three prongs known as the “Lemon test”. The Lemon test
directs the courts to find that a statute, policy or practice does not
violate the Establishment Clause of the first amendment only if:
1. It has secular purpose.
2. It neither advances nor inhibits religion.
3. It does not foster an excessive entanglement with religion.

The Lemon test has continued to be influential even as a
majority of the Court has shifted to an accommodationist stance in
recent decisions (Levy 1994; Choper 1995). Prominent First
Amendment scholar Jesse Choper has labeled the Lemon test as ‘‘the
governing approach to judging Establishment Clause issues’’ (Choper
1995:165). Futhermore, the Lemon test enunciated in the majority
opinion in Lemon v. Kurtzman has served to provide a framework for
the decisions in Establishment Clause cases decided over the last 35
years (Kritzer & Richards, 2003).

In recent times the U.S. Supreme court has expanded the limits
of the Lemon test and more broadly accepted the constitutionality of
some policies and practices that were considered inappropriate in
previous times. One such example is the ruling in Mitchell v. Helms
(530 U.S. 793, 2000) that approved the practices of public school
teachers providing services to parochial school students along with
funding for computers at the same institutions. This decision truly
stretches the limits of the Lemon test and expands the limits while
opening the door for litigation questioning previous decisions related
to services and assistance for parochial schools.

Currently, a shift in the political climate of the Supreme Court
has fostered the initiative to possibly amend or abolish the Lemon
guideline and favor a more flexible approach to resolving
establishment clause issues. The Court has only deviated from the

Robert L. Marshall 6

Lemon test a limited number of times. One such case was Board of
Education of Kiryas Joel Village School District v. Grumet (512 U.S.
687, 1994) which struck down the establishment of a public school
district to educate special education children of a religious enclave of
Satmar Hasidim, practitioners of a strict form of Judaism because it
only served one religious group or sect. Again in Roseburg v.
University of Virginia (515 U.S. 819, 1995), the Supreme Court found
that student activity funds could not be denied for a religious magazine
since it would constitute impermissible viewpoint censorship in
violation of the First Amendment free speech clause (Kemmer, Walsh
& Maniotis 2005). Shortly after these two decisions, the court returned
to the Lemon guidelines in Agostini v. Felton (522 U.S. 803, 1997)
upholding the practice of providing instruction by public school
teacher to parochial school educationally disadvantaged children
which overruled the previous decision prohibiting the same practice in
Aguilar v. Felton (473 U.S. 402, 1985). All things considered, until the
Supreme Court establishes a more applicable set of guidelines that
more effectively assess or determine constitutionality of cases, the
Lemon test remains as the precedent utilized by the justices.

Lemon Test Applications

Over the past 35 years, the Lemon test has been applied in a
plethora of cases involving an array of religious issues in district
courts, courts of appeals, and the United States Supreme Court.
Throughout this period of time, the Court has applied the three-prong
test rigidly at times and more broadly in others even reversing its own
decisions in a few instances. The following list represents some of the
key relevant issues where the Lemon v. Kurtzman case influence and
the three-prong test have been applied:


◦ Creation-science
◦ School prayer
◦ Religious symbols and clothing
◦ Religious student organizations
◦ Religious exemptions for students
◦ Financial assistance to parochial schools by the states
◦ Religion in the classroom
◦ Religion in music programs
◦ Religious literature distribution
◦ Observance of religious holidays
◦ Pledge of allegiance
◦ Religious exemptions for parent
◦ Use of school facilities by religious groups
◦ Religious material in school libraries
◦ Distribution of religious material in schools
◦ Display of the Ten Commandments

Dissenting Opinions

In an effort to shed some light on the issue of where the
Supreme Court might be headed with application of the Lemon test
guideline, justices’ opinions were gleaned from the Westlaw Campus
Research Database. From this source a number of opinions emerge
with some common theme in the direction the Court may be headed in
future decision. Both dissenting and concurring decision indicate a
change in the climate of the high Courts evaluation and decision
process for cases related to establishment issues.


In Wallace v. Jaffree (472 U.S. 38, 1985), Chief Justice
Rehnquist wrote the following dissenting opinion:

The three-part test represents a determined effort to craft a
workable rule from a historically faulty doctrine; but the rule
can only be as sound as the doctrine it attempts to service. The
three-part test has simply not provided adequate standards for
deciding Establishment Clause cases, as this Court has slowly
come to realize. Even worse, the Lemon test has caused this
Court to fracture into unworkable plurality opinions, see n. 6,
supra, depending upon how each of the three factors applies to
a certain state action. The results from our school services
cases show the difficulty we have encountered in making the
Lemon test yield principled results.

For example, a State may lend to parochial school
children geography textbooks, Board of Education v. Allen,
(392 U.S. 236, 1968) that contain maps of the United States,
but the State may not lend maps of the United States for use in
geography class. Meek v. Pittenger, (421 U.S. 349 1975). A
State may lend textbooks on American colonial history, but it
may not lend a film on George Washington, or a film projector
to show it in history class. A State may lend classroom
workbooks, but may not lend workbooks in which the
parochial school children write, thus rendering them
nonreusable (Meek, supra) A State may pay for bus
transportation to religious schools Everson v. Board of
Education (330 U.S. 1 1975) but may not pay for bus
transportation from the parochial school to the public zoo or
natural history museum for a field trip Wolman v. Walter, (433
U. S. 229 1977). A State may pay for diagnostic services
conducted in the parochial school but therapeutic services must
be given in a different building; speech and hearing "services"
conducted by the State inside the sectarian school are


forbidden, Meek v. Pittenger, (421 U.S. 349 1975), but the
State may conduct speech and hearing diagnostic testing inside
the sectarian school. (Wolman, supra). Exceptional parochial
school students may receive counseling, but it must take place
outside of the parochial school, (Wolman, supra) such as in a
trailer parked down the street A State may give cash to a
parochial school to pay for the administration of state-written
tests and state-ordered reporting services, Committee for
Public Education and Religious Liberty v. Regan, (444 U.S.
646 1980) but it may not provide funds for teacher-prepared
tests on secular subjects Levitt v. Committee for Public
Education and Religious Liberty (413 U.S. 472 1973)
Religious instruction may not be given in public school,
Illinois ex rel. McCollum v. Board of Education, (333 U.S.
203, 1948). but the public school may release students during
the day for religion classes elsewhere, and may enforce
attendance at those classes with its truancy laws. Zorach v.
Clauson, (343 U.S. 306 1952)

These results violate the historically sound principle
"that the Establishment Clause does not forbid governments ...
to [provide] general welfare under which benefits are
distributed to private individuals, even though many of those
individuals may elect to use those benefits in ways that 'aid'
religious instruction or worship." Committee for Public
Education & Religious Liberty v. Nyquist, (413 U.S. 756,
1973) (BURGER, C.J., concurring in part and dissenting in
part). It is not surprising in the light of this record that our most
recent opinions have expressed doubt on the usefulness of the
Lemon test.

Although the test initially provided helpful assistance,
e.g., Tilton v. Richardson, (403 U.S. 672, 1971), we soon
began describing the test as only a "guideline," Committee for
Public Education & Religious Liberty v. Nyquist, supra, and
lately we have described it as "no more than [a] useful


signpos[t]." Mueller v. Allen, (463 U.S. 388, 394, 1983), citing
Hunt v. McNair, (413 U.S. 734, 1973); Larkin v. Grendel's
Den, Inc., (459 U.S. 116, 1982). We have noted that the Lemon
test is "not easily applied," (Meek, supra) and as Justice
WHITE noted in (Regan, supra) under the Lemon test we have
"sacrifice[d] clarity and predictability for flexibility." (444
U.S., 662, 1980). In Lynch we reiterated that the Lemon test
has never been binding on the Court, and we cited two cases
where we had declined to apply it.

Again in the more recent Santa Fe Independent School District
V. Doe (530 U.S. 290, 2000) Justice Rehnquist writes the following
dissenting opinion:

We do not learn until late in the Court's opinion that
respondents in this case challenged the district's student-
message program at football games before it had been put into
practice. As the Court explained in United States v. Salerno,
(481 U.S. 739, 745, 1987), the fact that a policy might "operate
unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid." See
also Bowen v. Kendrick, (487 U.S. 589, 1988). While there is
an exception to this principle in the First Amendment
overbreadth context because of our concern that people may
refrain from speech out of fear of prosecution, Los Angeles
Police Dept. v. United Reporting Publishing Corp., (528 U.S.
32, 38-40, 1999), there is no similar justification for
Establishment Clause cases. No speech will be "chilled" by the
existence of a government policy that might unconstitutionally
endorse religion over nonreligion. Therefore, the question is
not whether the district's policy may be applied in violation of
the Establishment Clause, but whether it inevitably will be.


The Court, venturing into the realm of prophecy,
decides that it "need not wait for the inevitable" and invalidates
the district's policy on its face. See ante, at 2282. To do so, it
applies the most rigid version of the oft-criticized test of
Lemon v. Kurtzman, (403 U.S. 602, 1971).

The Court rightly points out that in facial challenges in
the Establishment Clause context, we have looked to
Lemon's three factors to "guid[e] [t]he general nature of
our inquiry." Ante, at 2282 (internal quotation marks
omitted) (citing Bowen v. Kendrick, (487 U.S. 589, 612,
1988)). In Bowen, we looked to Lemon as such a guide
and determined that a federal grant program was not
invalid on its face, noting that "[i]t has not been the
Court's practice, in considering facial challenges to
statutes of this kind, to strike them down in anticipation
that particular applications may result in
unconstitutional use of funds. (487 U.S., at 612, 1988)
But here the Court, rather than looking to Lemon as a
guide, applies Lemon's factors stringently and ignores
Bowen's admonition that mere anticipation of
unconstitutional applications does not warrant striking a
policy on its face.

Lemon has had a checkered career in the decisional law
of this Court. See, e.g., Lamb's Chapel v. Center Moriches
Union Free School Dist., (508 U.S. 384, 398-399, 1993)
(SCALIA, J., concurring in judgment) (collecting opinions
criticizing Lemon ); Wallace v. Jaffree, (472 U.S. 38, 1985)
(REHNQUIST, J., dissenting) (stating that Lemon's "three-part
test represents a determined effort to craft a workable rule from
a historically faulty doctrine; but the rule can only be as sound
as the doctrine it attempts to service" (internal quotation marks
omitted)); Committee for Public Ed. and Religious Liberty v.
Regan, (444 U.S. 646, 671, 1980) (STEVENS, J., dissenting)
(deriding "the sisyphean task of trying to patch together the


blurred, indistinct, and variable barrier described in Lemon ").
We have even gone so far as to state that it has never been
binding on us. Lynch v. Donnelly, 465 U.S. (668, 679, 1984)
("[W]e have repeatedly emphasized our unwillingness to be
confined to any single test or criterion in this sensitive area ....
In two cases, the Court did not even apply the Lemon 'test'
[citing Marsh v. Chambers, (463 U.S. 783, 1983), and Larson
v. Valente, (456 U.S. 228, 1982). Indeed, in Lee v. Weisman,
(505 U.S. 577, 1992), an opinion upon which the Court relies
heavily today, we mentioned, but did not feel compelled to
apply, the Lemon test. See also Agostini v. Felton, (521 U.S.
203, 233, 1997) (stating that Lemon's entanglement test is
merely "an aspect of the inquiry into a statute's effect"); Hunt
v. McNair, (413 U.S. 734, 741, 1973) (stating that the Lemon
factors are "no more than helpful signposts").

Even if it were appropriate to apply the Lemon test here,
the district's student-message policy should not be invalidated
on its face. The Court applies Lemon and holds that the "policy
is invalid on its face because it establishes an improper
majoritarian election on religion, and unquestionably has the
purpose and creates the perception of encouraging the delivery
of prayer at a series of important school events." Ante, at 2283.
The Court's reliance on each of these conclusions misses the
mark.

In Aguilar v. Felton, Sandra Day O’Connor provides an
addition to Judge Rehnquist’s dissenting opinion related to the Lemon
test as follows:

As in Wallace v. Jaffree, 472 U.S. 38, (1985), and
Thornton v. Caldor, Inc., (472 U.S. 703, 1985), the Court in
this litigation adheres to the three-part Establishment Clause
test enunciated in Lemon v. Kurtzman, (403 U.S. 602, 612-613,
1971). To survive the Lemon test, a statute must have both a


secular legislative purpose and a principal or primary effect
that neither advances nor inhibits religion. Under Lemon and
its progeny, direct state aid to parochial schools that has the
purpose or effect of furthering the religious mission of the
schools is unconstitutional. I agree with that principle.
According to the Court, however, the New York City Title I
program is defective not because of any improper purpose or
effect, but rather because it fails the third part of the Lemon
test: the Title I program allegedly fosters excessive government
entanglement with religion. I disagree with the Court's analysis
of entanglement, and I question the utility of entanglement as a
separate Establishment Clause standard in most cases. Before
discussing entanglement, however, it is worthwhile to explore
the purpose and effect of the New York City Title I program in
greater depth than does the majority opinion.

In Committee for Public Ed. and Religious Liberty v. Regan
(444 U.S. 646, 1980), Justice Stevens reiterates his dissenting opinion
with the following colorful quote:

…the entire enterprise of trying to justify various types of
subsidies to nonpublic schools should be abandoned. Rather
than continuing with the sisyphean task of trying to patch
together the "blurred, indistinct, and variable barrier" described
in Lemon v. Kurtzman, (403 U.S. 602, 1971), I would resurrect
the "high and impregnable" wall between church and state
constructed by the Framers of the First Amendment. See
Everson v. Board of Education, (330 U.S. 1, 1947)


Concurring Opinions

More recently in Agostini v. Felton (521 U.S. 203, 1997),
Sandra Day O’Connor delivered the opinion of the court as follows:

In order to evaluate whether Aguilar has been eroded
by our subsequent Establishment Clause cases, it is necessary
to understand the rationale upon which Aguilar, as well as its
companion case, School Dist. of Grand Rapids v. Ball, ( 473
U.S. 373, 1985), rested.

The Court conducted its analysis by applying the three-
part test set forth in Lemon v. Kurtzman, 403 U.S. 602, (1971):
"First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that neither
advances nor inhibits religion; finally, the statute must not
foster an excessive government entanglement with religion."
473 U.S., at 382-383, 105 S.Ct., at 3222 (quoting Lemon,
supra)

The Court acknowledged that the Shared Time program
served a purely secular purpose, thereby satisfying the first part
of the so-called Lemon test. 473 U.S., at 383, 105 S.Ct., at
3222. Nevertheless, it ultimately concluded that the program
had the impermissible effect of advancing religion. Id., at 385,
105 S.Ct., at 3223. The Court found that the program violated
the Establishment Clause's prohibition against "government-
financed or government-sponsored indoctrination into the
beliefs of a particular religious faith" in at least three ways.
Ibid. First, drawing upon the analysis in Meek v. Pittenger,
(421 U.S. 349, 1975), the Court observed that "the teachers
participating in the programs may become involved in
intentionally or inadvertently inculcating particular religious
tenets or beliefs." 473 U.S., at 385. Meek invalidated a
Pennsylvania program in which full-time public employees


provided supplemental "auxiliary services"--remedial and
accelerated instruction, guidance counseling and testing, and
speech and hearing services--to nonpublic school children at
their schools. 421 U.S., 367. Although the auxiliary services
themselves were secular, they were
mostly dispensed on the premises of parochial schools, where
"an atmosphere dedicated to the advancement of religious
belief [was] constantly maintained." Meek, 421 U.S., 371.

In Lynch v. Donnelly (465 U.S. 668, 1984), Justice O’Connor
writes the following concurring opinion

…Our prior cases have used the three-part test articulated in
Lemon v. Kurtzman, 403 U.S. 602, 612-613, (1971), as a guide
to detecting these two forms of unconstitutional government
action. It has never been entirely clear, however, how the three
parts of the test relate to the principles enshrined in the
Establishment Clause. Focusing on institutional entanglement
and on endorsement or disapproval of religion clarifies the
Lemon test as an analytical device.

"First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that neither
advances nor inhibits religion ...; finally, the statute must not
foster 'an excessive government entanglement with religion.' "
403 U.S., at 612-613, 91 S.Ct., at 2111.

Moreover, the Court has held that a statute or practice
that plainly embodies an intentional discrimination among
religions must be closely fitted to a compelling state purpose in
order to survive constitutional challenge. See Larson v.
Valente, (456 U.S. 228, 1982). As the Court's opinion
observes, ante, at 1366, n. 13, this case does not involve such
discrimination. The Larson standard, I believe, may be
assimilated to the Lemon test in the clarified version I propose.
Plain intentional discrimination should give rise to a


presumption, which may be overcome by a showing of
compelling purpose and close fit, that the challenged
government conduct constitutes an endorsement of the favored
religion or a disapproval of the disfavored.

In this case, as even the District Court found, there is
no institutional entanglement. Nevertheless, the appellees
contend that the political divisiveness caused by Pawtucket's
display of its crèche violates the excessive-entanglement prong
of the Lemon test. The Court's opinion follows the suggestion
in Mueller v. Allen, 463 U.S. ----, ----, (1983), and concludes
that "no inquiry into potential political divisiveness is even
called for" in this case. Ante, at 1364. In my view, political
divisiveness along religious lines should not be an independent
test of constitutionality.

Although several of our cases have discussed political
divisiveness under the entanglement prong of Lemon, see, e.g.,
Committee for Public Education v. Nyquist, (413 U.S. 756,
796, 1973).We have never relied on divisiveness as an
independent ground for holding a government practice
unconstitutional. Guessing the potential for political
divisiveness inherent in a government practice is simply too
speculative an enterprise, in part because the existence of the
litigation, as this case illustrates, itself may affect the political
response to the government practice. Political divisiveness is
admittedly an evil addressed by the Establishment Clause. Its
existence may be evidence that institutional entanglement is
excessive or that a government practice is perceived as an
endorsement of religion. But the constitutional inquiry should
focus ultimately on the character of the government activity
that might cause such divisiveness, not on the divisiveness
itself. The entanglement prong of the Lemon test is properly
limited to institutional entanglement.


The purpose prong of the Lemon test asks whether
government's actual purpose is to endorse or disapprove of
religion. The effect prong asks whether, irrespective of
government's actual purpose, the practice under review in fact
conveys a message of endorsement or disapproval. An
affirmative answer to either question should render the
challenged practice invalid.

The purpose prong of the Lemon test requires that a
government activity have a secular purpose. That requirement
is not satisfied, however, by the mere existence of some secular
purpose, however dominated by religious purposes. In Stone v.
Graham, (449 U.S. 39, 1980), for example, the Court held that
posting copies of the Ten Commandments in schools violated
the purpose prong of the Lemon test, yet the State plainly had
some secular objectives, such as instilling most of the values of
the Ten Commandments and illustrating their connection to our
legal system, but see id., at 41, 101 S.Ct., at 193. The proper
inquiry under the purpose prong of Lemon, I submit, is whether
the government intends to convey a message of endorsement or
disapproval of religion.

Focusing on the evil of government endorsement or
disapproval of religion makes clear that the effect prong of the
Lemon test is properly interpreted not to require invalidation of
a government practice merely because it in fact causes, even as
a primary effect, advancement or inhibition of religion. The
laws upheld in Walz v. Tax Commission, (397 U.S. 664, 1970)
(tax exemption for religious, educational, and charitable
organizations), in McGowan v. Maryland, (366 U.S. 420,
1960) (mandatory Sunday closing law), and in Zorach v.
Clauson, (343 U.S. 306, 1952) (released time from school for
off-campus religious instruction), had such effects, but they did
not violate the Establishment Clause. What is crucial is that a
government practice not have the effect of communicating a
message of government endorsement or disapproval of


religion. It is only practices having that effect, whether
intentionally or unintentionally, that make religion relevant, in
reality or public perception, to status in the political
community.

Finally, the most significant condemnation of the Lemon test
came from Justice Scalia in his concurring opinion in Lamb's Chapel
v. Center Moriches Union Free School District (508 U.S. 384, 1993).
The following is an excerpt from his concurring opinion in the case:

…I also agree with the Court that allowing Lamb's Chapel to
use school facilities poses "no realistic danger" of a violation
of the Establishment Clause, ante, at *398 2148, but I cannot
accept most of its reasoning in this regard. The Court explains
that the showing of petitioners' film on school property after
school hours would not cause the community to "think that the
District was endorsing religion or any particular creed," and
further notes that access to school property would not violate
the three-part test articulated in Lemon v. Kurtzman, (403 U.S.
602, 1971). Ante, at 2148. As to the Court's invocation of the
Lemon test: Like some ghoul in a late-night horror movie that
repeatedly sits up in its grave and shuffles abroad, after being
repeatedly killed and buried, Lemon stalks our Establishment
Clause jurisprudence once again, frightening the little children
and school attorneys of Center Moriches Union Free School
District. Its most recent burial, only last Term, was, to be sure,
not fully six feet under: Our decision in Lee v. Weisman, (505
U.S. 577, 586-587, 1992), conspicuously avoided using the
supposed "test" but also declined the invitation to repudiate it.
Over the years, however, no fewer than five of the currently
sitting Justices have, in their own opinions, personally driven
pencils through the creature's heart (the author of today's
opinion repeatedly), and a sixth has joined an opinion doing so.


The secret of the Lemon test's survival, I think, is that it
is so easy to kill. It is there to scare us (and our audience) when
we wish it to do so, but we can command it to return to the
tomb at will. See, e.g., Lynch v. Donnelly, (465 U.S. 668, 679,
1984) (noting instances in which Court has not applied Lemon
test). When we wish to strike down a practice it forbids, we
invoke it, see, e.g., Aguilar v. Felton, (473 U.S. 402, 1985)
(striking down state remedial education program administered
in part in parochial schools); when we wish to uphold a
practice it forbids, we ignore it entirely, see Marsh v.
Chambers, (463 U.S. 783, 1983) (upholding state legislative
chaplains). Sometimes, we take a middle course, calling its
three prongs "no more than helpful signposts," Hunt v. McNair,
(413 U.S. 734, 741, 1973). Such a docile and useful monster is
worth keeping around, at least in a somnolent state; one never
knows when one might need him.

For my part, I agree with the long list of constitutional
scholars who have criticized Lemon and bemoaned the strange
Establishment Clause geometry of crooked lines and wavering
shapes its intermittent use has produced. See, e.g., Choper, The
Establishment Clause and Aid to Parochial Schools--An
Update, 75 Calif.L.Rev. 5 (1987); Marshall, "We Know It
When We See It": The Supreme Court and Establishment, 59
S.Cal.L.Rev. 495 (1986); McConnell, Accommodation of
Religion, 1985 S.Ct.Rev. 1; Kurland, The Religion Clauses and
the Burger Court, 34 Cath.U.L.Rev. 1 (1984); R. Cord,
Separation of Church and State (1982); Choper, The Religion
Clauses of the First Amendment: Reconciling the Conflict, 41
U.Pitt.L.Rev. 673 (1980). I will decline to apply Lemon--
whether it validates or invalidates the government action in
question--and therefore cannot join the opinion of the Court
today.


Analysis of Lemon by Law Scholars

Douglas Laycock, Alice McKean Young Regents Chair
Emeritus at the University of Texas Law School in Austin, Texas,
analyzed the historical pathway of the three-prong test in “Survey of
Religious Liberty in the United States” and Establishment Clause
cases and found that it has “not produced coherent results” but has
“produced distinctions that do not commend themselves to common
sense” (Douglas, 47 Ohio St. L. J. 409, 446, 1986). The following is a
quote from his Ohio State Law Journal report from a symposium
entitled “The Tension Between the Free Exercise Clause and the
Establishment Clause of the First Amendment”:

In 1971 the Court distilled from its earlier cases a three-
part test to identify establishment clause violations. The Court
said: 'First, the statute must have a secular legislative purpose;
second, its principal or primary effect must
be one that neither advances nor inhibits religion; finally, the
statute must not foster 'an excessive government entanglement
with religion.'' Lemon v. Kurtzman, (403 U.S. 602, 1971)

The Court generally has adhered to this verbal
formulation ever since. In cases involving prayer or religious
teaching in the public schools, the Court has generally found
no secular purpose. In the cases on financial aid to religious
institutions, the Court has held that states are pursuing the
secular purpose of educating children. But it has generally
found a dilemma in the second and third parts of its test. Under
the tracing theory, if aid cannot be traced to a wholly secular
function it has a primary effect of advancing religion. But if the
state imposes substantial controls to insure that the aid is not
diverted to religious purposes, that creates too much
entanglement between church and state. One way or the other,
most aid to religious schools fails the three-part test.


The Court's three-part test has been subject to intense
scholarly criticism. Some scholars have argued that the ban on
excessive entanglement in the third part of the test, and on
effects that inhibit religion in the second part of the test, are
free exercise concepts that have nothing to do with the
establishment clause. The dispute is more than academic. Only
the affected churches or believers can sue to prevent inhibition
of religion or entanglement with religion under the free
exercise clause. But, by making these problems establishment
clause violations, the Court permits nonbelievers to file
taxpayer suits to save the churches from 'inhibition' and
'entanglement,' whether or not the churches want to be saved.

In addition to this expansion of the usual understanding
of establishment, the three-part test has been so elastic in its
application that it means everything and nothing. The meaning
of entanglement has been especially slippery. (Laycock,
General Theory, supra note 4, at 1392-94). All of the financial
aid cases summarized in the previous section were decided
under the three-part test; the Court modified the three parts as
necessary to accommodate all the different results and all the
different theories. The Court upheld municipal Nativity scenes
under the three-part test, finding that depictions of the Holy
Family had a secular purpose and effect (!) and did not cause
excessive entanglement between government and religion.
Lynch v. Donnelly, (465 U.S. 668 1984).I have described the
prayer cases and the financial aid cases, the two pre-eminent
establishment clause issues, without ever mentioning the three-
part test. I have done so because I think the three-part test does
not help explain the Court's results and actually hampers
understanding of the real issues.

The Honorable Kenneth F. Ripple, judge on the United States
Court of Appeals for the Seventh Circuit since 1985, published an
article in 1980 entitled “The Entanglement Test of the Religion


Clauses--A Ten Year Assessment” which focuses on the final prong
and how the courts have applied the excessive entanglement provision
of the Lemon test. The following is a summary of his analysis of the
decisions over the ten year period:

The reappraisal of the entanglement test by the
Supreme Court must necessarily involve examination from
three perspectives: the impact of the test on the overall
doctrinal development of the religion clauses; the practical
problems inherent in the implementation of the test; and the
possible future developments if the Court continues to use it.

In considering the impact of the test on the overall
development of the religion clauses, one must recognize that
the underlying principle protected by the “excessive
entanglement” concept has long been recognized as one of the
core strengths of our democratic society. Madison recognized
the theoretical necessity of confining religion and civil
government to their own respective spheres; de Tocqueville
observed the salutary consequences of adherence to that
standard. Perhaps the expanding role of civil government and
the newly-emphasized “social mission” of many large churches
has convinced those who enjoy the unique perspective of
American life which membership on the Court provides that
this value needs to be reemphasized as a significant
constitutional standard. There is, however, nothing in the facts
of the cases coming before the Court that would tend to
support that judgment. Indeed, as Justice Powell noted in
Wolman, “(t)he risk of significant religious or denominational
control over our democratic processes – or even of deep
political division along religious lines – is remote….” It is
therefore conceivable that the Court has issued the
“entanglement test” without much reflection on its overall
impact on the direction of religion clause jurisprudence.


Even if the Court is willing to accept this doctrinal
impact of the “entanglement test,” the question remains, as
Justice White has reiterated recently, whether the articulation
of this constitutional value through the “excessive
entanglement” concept is a useful judicial methodology. As
employed by the Supreme Court over the past decade, it has
emerged largely as a criterion without an internal discipline.
The originally conceived standard of history is helpful in
assessing some of the more traditional religious-civil
relationships but is of only marginal utility in assessing newer
areas of contact between those spheres. The only alternative
found by the Court has been the quasi-codification of its early
holdings into the litmus tests of Roemer and Wolman. Judicial
factual assessments of one time and one place thus become the
operative standards of constitutional adjudication in the long
term.

With respect to future directions, the open-ended nature
of the “excessive entanglement” concept exposes to subtle and
imprecise reassessment many other areas of constitutional
adjudication. Traditional areas of church-state cooperation,
long permitted under past standards of review, now seem
exposed to reassessment on the ground that the relationship
poses the danger, although not necessarily the actuality, of
future religiously-based strife. Even if the Court does wish to
see the “wall of separation” become a bit higher, there are
serious questions as to whether it has selected an appropriate
tool. Perhaps it has simply increased the probability that future
cases will rest to an even greater extent on the personal
predilections of current members of the Court or, even worse,
on those of past members of the Court whose predilections
have become the conventional wisdom of the “standard
profiles.” In short, the benefit derived from the test seems
quite remote compared with the risks involved in using such an
undisciplined judicial methodology.


Kenneth Mitchell Cox published a review in the Vanderbilt
Law Review in October of 1984 entitled “The Lemon Test Soured:
The Supreme Court's New Establishment Clause Analysis” (37 Vand.
L. Rev. 1175). His analysis contends that the Supreme Court has
veered away from rigorous applications of the Lemon test. The
following is a quote from the conclusion of his article:

The Supreme Court's two latest establishment clause
decisions mark a significant analytical departure from the three
part Lemon test that the Court applied in a long line of prior
cases. Marsh and Lynch demonstrate the Court's apparent
attempt to exclude from the scope of establishment clause
protection minor encroachments that the Court believes either
do not pose the actual dangers which the Framers feared in the
eighteenth century church, or that merely constitute the
government's routine historical recognition of religion in
American society. The Court's continued use of the new
historical approach threatens not only uniformity in
establishment clause jurisprudence under the Lemon test, but
also the fundamental first amendment protections that the
traditional approach has secured. First, historical review cannot
yield a definitive interpretation of the Framers' intent. Second,
historical analysis does not protect adequately against
contemporary establishment dangers that the first amendment
drafters did not or could not anticipate. Last, the Court's idea of
pointing to other, distinguishable official acknowledgements of
religion does not justify the government's active participation
in religious activity. The Supreme Court should reaffirm its
commitment not only to establishment clause principles, but
also to the Lemon test as a rigorous analytical framework that
protects those principles.

Summary and Conclusion


In the process of analyzing the cases influenced by the Lemon
test along with court and judges opinions, it comes to light that the
political climate could bring significant change in the not so distant
future in regards to religion in public schools. The limitations of the
Lemon test emerge in the analysis of the endorsements made by the
lower courts. Moreover, significant challenges arise when the three-
prong test is applied to established traditional values predicated by the
engrained religious heritage of the United States coupled with the
diversity of religion and social mores across the nation. Even with
criticism and challenges along the way, the Lemon test has remained
the litmus test influencing public school law challenges for over 35
years.

Recommendations

Kemmer, Walsh and Maniotis (2005) refer to a set of six
guidelines developed by a coalition of seventeen religious and
educational organizations about religion in public schools. The
following list guidelines are suggested for public schools at the present
time:

1. The school’s approach to religion must be academic, not
devotional.
2. The school may strive for student awareness of religion but
should not pass for student acceptance of any on religion.
3. The school may sponsor study about religion but may not
sponsor the practice of religion
4. The school may expose students to a diversity of religious
views but may not impose any particular view.


5. The school may educate about all religions but may not
promote or denigrate any religion.
6. The school may inform the student about various beliefs
but should not seek to confine him or her to any particular
belief.

Implementing the aforementioned guidelines in all public schools
should go a long way toward minimizing the probability of costly
litigation regardless or where the Supreme Court and lower courts may
stand in the future on the provisions of the three-pronged Lemon test.


REFERENCES

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