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The Lemon Test

§ 12.01.01
Key point 12-01.01. For decades, the most commonly applied test for evaluating the validity of a law or government practice under the First Amendment’s nonestablishment of religion clause was the three-part “Lemon” test. Under this test, a law or government practice that conveyed some benefit on religion would be considered constitutional if it (1) had a clearly secular purpose; (2) had a primary effect that neither advanced nor inhibited religion; and (3) did not foster an excessive entanglement between church and state. All three parts of the test needed to be met in order for the law or practice to be deemed constitutional. In 2022, the US Supreme Court overturned this test, largely because the Court itself said it often criticized or ignored the test. Going forward, the Court said cases should be decided through interpreting the Establishment Clause “by reference to historical practices and understandings.”

In 1971, the Court held that its establishment clause decisions since Everson could be embodied in a three-pronged test: "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 governmental entanglement with religion.'"[17] Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). This test, known as the three-pronged or "tripartite" Lemon test, enshrined the dubious interpretation of the Establishment Clause announced in Everson. The Court, in amplifying on this test, has observed that "[t]he 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."[18] Lynch v. Donnelly, 465 U.S. 668 (1984). With regard to the primary effect prong, the Court has further observed that "not every law that confers an 'indirect,' 'remote,' or 'incidental' benefit upon [religion] is, for that reason alone, constitutionally invalid."[19] Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 771 (1973). "Excessive entanglement" between church and state connotes "comprehensive, discriminating, and continuing state surveillance."[20] Lemon v. Kurtzman, 403 U.S. 602, 619 (1971). But see Wallace v. Jaffree, 472 U.S. 38 (1985) (dissenting opinion of Justice Rehnquist). The Court suggested in Lemon that laws or government practices having the potential for "political divisiveness" may violate the entanglement prong. However, the Court later confined this aspect of entanglement to "cases where direct financial subsidies are paid to parochial schools or to teachers in parochial schools."[21] Mueller v. Allen, 463 U.S. 388, 403 n.11 (1983).

Application of the Lemon standard resulted, predictably, in the invalidation of many accommodations of religious practice. For example, the Supreme Court outlawed several programs providing limited assistance to private education;[22] See, e.g., Meek v. Pittinger, 421 U.S. 349 (1975); Wolman v. Walter, 433 U.S. 229 (1977); Levitt v. Committee for Public Education, 413 U.S. 472 (1973). a Kentucky law requiring a copy of the Ten Commandments to be posted in each public school classroom;[23] Stone v. Graham, 449 U.S. 39 (1980). a state law specifying that each public school day should begin with a minute of silence during which students could pray, meditate, or occupy themselves in any other manner they chose;[24] Wallace v. Jaffree, 472 U.S. 38 (1985). a state law requiring that public schools present both the theories of evolution and creation science;[25] Edwards v. Aguillard, 482 U.S. 578 (1987). and a nativity display maintained in a county courthouse building during the Christmas season that was not a part of a larger display containing secular symbols.[26] County of Allegheny v. American Civil Liberties Union, 109 S. Ct. 3086 (1989). Lower federal courts invalidated scores of religious practices on the basis of the Lemon test.

The Supreme Court has often expressed misgivings about the Lemon formulation. In 1971, the Court called the Lemon test a mere "guideline."[27] Tilton v. Richardson, 403 U.S. 672 (1971). It later described the test as "no more than [a] useful signpost,"[28] Mueller v. Allen, 463 U.S. 388 (1983). and expressed an unwillingness to be "confined to any single test or criterion."[29] Lynch v. Donnelly, 465 U.S. 668 (1984). Similarly, the Court has noted that the test "is not easily applied"[30] Meek v. Pittinger, 421 U.S. 349 (1975). and "sacrifices clarity and predictability for flexibility."[31] Committee for Public Education v. Regan, 444 U.S. 646 (1980). The Court has disregarded the Lemon test on at least two occasions. In 1982, the Court deviated from the Lemon test in striking down a Minnesota statute requiring certain religious organizations to register with the state prior to soliciting contributions.[32] Larson v. Valente, 456 U.S. 228 (1982). The Court, observing that the Lemon test was "intended to apply to laws affording a uniform benefit to all religions," announced the following two-part test to be used in assessing the constitutionality of a law that discriminates "among religions": (1) The law must be justified by a compelling governmental interest, and (2) it must be closely fitted to further that interest.

In 1983, the Court again deviated from the Lemon test in upholding the practice of legislative chaplains,[33] Marsh v. Chambers, 463 U.S. 783 (1983). reversing a federal appeals court ruling that invalidated the practice on the basis of the Lemon test. The Court, noting that the very Congress that approved the First Amendment Establishment Clause also voted to appoint and pay a chaplain for both houses, concluded that "it would be incongruous to interpret that clause as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the federal government." Such cases are a repudiation, at least in part, of the hostility that the Court has shown to religious practice since Everson. They suggest that there is hope for a repudiation of Everson and the Lemon test, and a return to an interpretation of the Establishment Clause that is faithful to its history and purpose.[34] If the citizens of this country are dissatisfied with the framers' intent, the Constitution itself provides a remedy—amendment. It is the people, through the power to amend the Constitution that should have determined whether or not the First Amendment should be expanded beyond the original intention to prohibit established churches, and whether the First Amendment's Establishment Clause should be applied to state and local governments.

Until the three-part Lemon test is repudiated, it likely will continue to be the primary analytical tool employed by the courts in Establishment Clause cases, with the following limitations:

  1. Laws that discriminate between religious groups. Laws that discriminate between religious groups will be upheld against a claim that they violate the Establishment Clause only if (1) they are justified by a compelling governmental interest, and (2) they are closely fitted to further that interest.[35] Larson v. Valente, 456 U.S. 228 (1982).
  2. Certain accommodations of religious custom and practice. Certain accommodations of religious custom and practice may be validated by history. For example, in 1984 the Supreme Court upheld the practice of including a nativity scene on public property as part of a Christmas display.[36] Lynch v. Donnelly, 465 U.S. 668 (1984). While the Court validated the practice on the basis of Lemon, its application of the Lemon test was influenced if not controlled by historical precedent. Noting that the nativity scene had the secular purpose of depicting the origins of Christmas, did not have a primary effect of advancing religion, and did not create an excessive entanglement between church and state, the Court concluded, "It would be ironic, however, if the inclusion of a single symbol of a particular religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for two centuries, would so taint' the City's exhibit as to render it violative of the establishment clause." Similarly, the court upheld the constitutionality of legislative chaplaincies in 1983 on the basis of historical precedent without any reference to the Lemon test.[37] Marsh v. Chambers, 463 U.S. 783 (1983). The Court found controlling the fact that the first Congress, which approved the First Amendment Establishment Clause, also voted to appoint and pay a chaplain for each House.
  3. Public welfare legislation. The benefits of public welfare legislation cannot be denied to any group of persons "because of their faith, or lack of it."[38] Everson v. Board of Education, 330 U.S. 1 (1947). For example, the Establishment Clause does not require that a law authorizing free transportation of children to school must exclude children attending private religious schools.
  4. Neutrality. As noted in the following section of this chapter, the principles underlying the establishment clause can in some cases conflict with the values embodied in the Free Exercise of Religion Clause. Therefore, neither clause should be construed in isolation. The Establishment Clause, properly construed in light of the Free Exercise of Religion Clause, mandates governmental neutrality toward religion. Neither sponsorship nor hostility is permissible.
  5. Incidental accommodations religion. "[N]ot every law that confers an 'indirect,' 'remote,' or 'incidental' benefit upon [religion] is, for that reason alone, constitutionally invalid."[39] Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 771 (1973). See also Widmar v. Vincent, 454 U.S. 263, 273 (1981).
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