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Legal History

What is a Lemon Test Anyway? (A Little Bit of Case Law)

As a second-grader who had just transferred from a school district in suburban Pittsburgh, Pennsylvania, to a small district about a half an hour outside of Rochester, New York, it was with some surprise that I discovered that my new teacher had a special routine I had never before encountered. She liked to turn the lights off in the last 20 minutes or so of the school day and summon us to circle around her on a rug. She would begin to read.  From the Bible.  She then sent us on our way with a prayer. I rather liked it because it signaled that it was almost time to go home and play and watch afternoon cartoons on TV. My mother was less amused and informed me that what my teacher was doing was illegal, but, to the best of my recollection, the sessions continued while I was in her class. It was 1970.

Forty years ago today, the United States Supreme Court handed down one of those most-likely-to-affect-your-life-that-you-probably-never-heard-of-and-didn’t-realize-just-how-important-it-is-decisions. Lemon v. Kurtzman, 403 U.S. 602 (1971) set forth the so-called Lemon test for judging whether government action violates the Establishment Clause of the First Amendment which provides that the Congress shall make no law respecting an establishment of religion. The culmination of only a few decades of jurisprudence on the issue, it built upon earlier standards to try and bring some uniformity to how these cases are adjudicated.  Whether the Court was successful depends entirely upon who you ask. In order to understand how they arrived at their famous test, let’s delve into the recesses of middle and late Twentieth Century Establishment Clause case law.

In Cantwell v. Connecticut, 310 U.S. 296 (1940), the Supreme Court upheld the right of a Jehovah’s Witness to distribute religious pamphlets containing anti-Catholic statements in a largely Catholic neighborhood. Her conviction for failure to obtain permission was deemed a violation of her free speech rights. Although free exercise was never explicitly mentioned, the decision opened a door to cases involving religious practices in the public realm.  It wasn’t until 1947, that the Court expressly held that the religion clauses apply to the states via the Fourteenth Amendment. When a resident and taxpayer of Ewing Township, New Jersey challenged a state statute allowing local boards of education to reimburse parents of parochial school students for the cost of transportation to and from school, the Court agreed in principal that the Establishment Clause prohibited government sponsorship of and monetary support for religion, Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947). In upholding the statute however, the 5-4 majority held that the State must remain neutral rather than hostile to religion. Assisting parents with safe transport to and from school generally did not constitute an unlawful grant of funds to the parochial schools themselves, and, therefore, did not breach what Thomas Jefferson referred to as the Establishment Clause’s “wall of separation” between church and state, 330 U.S. 1, 16.  Precisely what would constitute a violation would finally be decided by the Court only a year after Everson.

Justice Hugo Black had written the decision in Everson that the wall of separation had not been breached. In his opinion for Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203 (1948), he detailed how the Court by an 8-1 vote reached a far different conclusion when confronted with an Illinois program that authorized religious instruction in public school buildings. Under the statute, Protestant, Catholic and Jewish students were enrolled in religion classes offered by school administration-approved instructors once a week in their classrooms. Attendance was mandatory for enrolled students. Students whose parents opted out of the program were sent to other parts of the school building. Although the instructors were not paid by public funds, offering religious instruction in public schools went too far for the Court, which deemed it a clear violation of the Establishment Clause.  The Court backed off a bit though in holding 6-3 (with Black dissenting) that as long as the instruction took place off school grounds, allowing students to be released for such programs merely accommodated religion rather than aided it, and, as such, did not constitute a violation of the Establishment clause, Zorach v. Clausen, 343 U.S. 306 (1952).  The court had clearly embarked on a journey through murky waters. What was hostile?  What was neutral? When did accommodation cross the line and become a breach of the wall of separation?

“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”  So intoned the students in public schools throughout New York State every morning up until the Supreme Court ruled 7-1 that reciting a state-authored prayer was “a practice wholly inconsistent with the Establishment Clause,” Engel v. Vitale, 370 U.S. 421, 424 (1962).  From murky waters, the Court had led the country into the legal equivalent of a category 5 hurricane. After Engel, no less than 150 amendments were introduced in Congress to reverse the Court’s ruling and allow prayer in public schools. None of them made it past the House of Representatives. To essentially underscore its position in Engel, the Court heard two more cases. In Abington School District v. Schempp, 374 U.S. 203 (1963), the plaintiffs challenged a Pennsylvania law which mandated the reading of ten Bible verses at the beginning of every public school day.  Its companion case, Murray v. Curlett, 374 U.S. 203 (1963), involved the claim by an atheist family that a Baltimore statute requiring that a Bible chapter and/or the Lord’s Prayer be recited during morning announcements in city  public schools violated the Constitution.  Once again the Court opined that prayers and Bible readings in public schools were examples of State-sponsored religious activities which violated the First Amendment.  And now, they included a test under which Establishment Clause cases could be evaluated.  In order to pass the “test”, legislation must have “a secular purpose and a primary effect that neither advances nor inhibits religion,” 374 U.S. 203, 222. The first two prongs of the Lemon test were now in place.

The effects of these rulings were acutely and immediately felt throughout the Country as the general outrage and attempts to amend the Constitution demonstrate.  And yet, judging from my own personal experience, some teachers and school officials merely chose to ignore the Court’s efforts to eradicate breaches in the “wall.”

On June 28, 1971, the Supreme Court enunciated the standard by which Establishment Clause cases are still decided. In Lemon v. Kurtzman, plaintiffs challenged the constitutionality of statutes in Rhode Island and Pennsylvania which provided for state payment of salaries of parochial school teachers who taught primarily secular subjects. The Lemon test built upon the guidelines set forth in its decisions from Everson forward and added a third and final part to the test. The Court found that the high degree of involvement by the states in such programs would entail “excessive and enduring entanglement between state and church,” 403 U.S. 602, 619.  So, for the last forty years, the test has been as follows. In order to pass muster under the Establishment Clause, legislation must:

  1. Have a secular purpose; AND
  2. Have a primary effect that neither advances nor inhibits religion; AND
  3. Avoid excessive entanglement between state and church.

Certain justices, notably Sandra Day O’Connor, have tweaked the standard to allow for what they feel is more clarity or specificity. Others, notably William H. Rehnquist, have rejected it altogether in favor of a reading of the Establishment Clause so narrow as to virtually denude it of any meaning whatsoever. But, whether the issue is school prayer, Abington v. Schempp; school prayer disguised as a moment of silence, Wallace v. Jaffree, 472 U.S. 38 (1985); the teaching of evolution in public schools, Kitzmiller v. Dover Area School District, 400 F.Supp.2d 707(M.D. Pa. 2005); religious displays on public property, Lynch v. Donnelly, 465 U.S. 668 (1984); or the ability of religious bodies to veto liquor licenses, Larkin v. Grendel’s Den, 459 U.S. 116 (1982), the courts still use the Lemon test.* By however narrow a thread, for forty years Lemon has hung on as the bulwark against all-out assaults on the wall of separation Thomas Jefferson referred to in describing the Establishment Clause.

Now we have an extraordinarily conservative Supreme Court majority who, despite their oft-trumpeted allegiance to original intent and alleged deference to the founding fathers, may very well hold with Justice Rehnquist and essentially ignore the very existence of the Establishment Clause. In the term that just ended today, the Court threw out an appeal by a group of taxpayers in Arizona challenging a state tax credit for payments to organizations that provide scholarships to private, including parochial, schools. Given that so many Establishment Clause cases have been brought by citizens as taxpayers, it is highly significant that the Court held in a 5-4 vote that these residents had no standing to challenge the legislation as it involved a tax credit rather than government expenditure. Arizona Christian School Tuition Organization v. Winn, et al., 563 U.S.__ (2011).  Although not a renunciation of the Lemon test itself, this case certainly reflects a willingness by the Court’s conservative wing to reduce the number of avenues of relief under the Establishment Clause.  The court is now in recess until October.  We’ll see what happens.

*Fodder for future blog entries.


About legalfeet

I'm an essayist, commentator, lawyer and reporter with expertise in Constitutional Law, United States History, religion and public education. I cover current issues involving the First Amendment religion clauses, modern religious movements, scientific history and developments and the events in which these areas converge.


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© Robin Radner and Legalfeet, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Robin Radner and Legalfeet with appropriate and specific direction to the original content.
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