Editor’s Note: 2022 marks the 75th anniversary of the founding of Americans United for Separation of Church and State. To celebrate this milestone anniversary, Church & State is profiling important figures in the life of the organization throughout the year. This month, we’re featuring Alton Lemon, lead plaintiff in a key church-state lawsuit from 1971.
If you’re a supporter of church-state separation, chances are good that you’ve heard of the Lemon Test – the comprehensive guidelines established by the Supreme Court more than a half-century ago to determine whether a government action violates religious freedom.
Slightly less well known is the name of the Supreme Court case, Lemon v. Kurtzman, whose 1971 decision became the Lemon Test.
And probably least familiar of all is the man behind the case, whose name was immortalized by the test. That’s a shame, because Alton Lemon deserves to be a household name for anyone who supports religious freedom and the separation of religion and government.
Lemon was a civil rights activist, Army veteran, government employee and father from Philadelphia. Raised a Baptist, he described his beliefs as “ethical humanism” in a 2003 interview with The Philadelphia Inquirer.
He was active in both the American Civil Liberties Union and the NAACP. It was as a member of the ACLU that he got involved in the case that would bear his name.
Lemon opposed the idea of public money being sent to private schools – it was “an issue around which I have some strong feelings,” he told the Inquirer in 1991. Lemon, who was Black, feared that funneling public money to private schools would erode the quality of public education, which would be especially harmful to children from minority groups: “If a lot of public funds are siphoned off, Blacks and minorities are going to suffer.”
That’s why Lemon agreed to be a plaintiff when the ACLU, NAACP, Americans United and several other organizations filed a lawsuit in 1969 to challenge a Pennsylvania law called the Nonpublic Elementary and Secondary Education Act. It was the first state law in the nation to divert taxpayer money directly to private religious schools to pay for teachers’ salaries, textbooks and instructional materials. In the first year of the program, the Supreme Court noted that Pennsylvania funneled $5 million to more than 1,100 private schools – at least 96% of which were religious (most were affiliated with the Roman Catholic Church).
A year after Pennsylvania passed its law, Rhode Island enacted a similar statute that also was challenged in court. The Salary Supplement Act funneled tax money directly to private school teachers. Participating educators had to affirm they taught no religious subjects and relied on secular educational materials that were used by public schools. At the time of the Supreme Court’s opinion, about 250 private school teachers had applied for the money – all of them employed by Roman Catholic schools.
In March 1971, the U.S. Supreme Court heard arguments in both cases, along with a third case involving taxpayer funding of religious colleges. In 8-0 and 8-1 decisions respectively (Justice Thurgood Marshall did not participate in Lemon), the Supreme Court in June 1971 struck down both the Pennsylvania and Rhode Island laws because, as Chief Justice Warren E. Burger wrote in the majority opinion, they resulted in “excessive entanglement between government and religion.”
Burger’s conclusion wasn’t novel. Indeed, he noted in his opinion that he was applying the standard the court had described a year earlier in Walz v. Tax Commission of the City of New York, in which the court had ruled that tax exemptions for houses of worship were permissible.
What was seminal about the decision was the comprehensive analysis and summary of the court’s previous church-state rulings that Burger laid out in Lemon – creating clear guidance for future courts to weigh potential violations of religious freedom. Lemon identified and clarified three criteria a government action must meet to pass constitutional muster:
- It must have a secular purpose;
- It must neither advance nor inhibit religion;
- It must not excessively entangle government with religion.
The three criteria collectively became known as the Lemon Test, and if a government action failed any of the three prongs, the action should be deemed unconstitutional.
Alton Lemon got to put the Lemon Test to, well, the test just two years later – and became a two-time winner at the Supreme Court as a result. The justices applied the test named after him in Sloan v. Lemon, which challenged a Pennsylvania law that allowed tax dollars to pay for private school tuition. In a 6-3 decision, the court struck down the law, using the Lemon Test’s second prong to determine the funding had “the impermissible effect of advancing religion.”
As straightforward as the Lemon Test is, fractures over its use developed on the court pretty quickly, especially when it came to strictly applying the test to cases involving public aid for private religious schools. By the late 1980s, after the high court swung more conservative thanks to appointments during Ronald Reagan’s presidency, the justices had begun to allow more indirect-aid programs that gave public money to students and families to use at private schools (rather than directly to the private schools), even if that money was ultimately spent at religious schools.
“Courts across the country have had no trouble applying Lemon,” AU Vice President and Legal Director Richard B. Katskee said last year upon the 50th anniversary of the Lemon Test (See “Squeezing Lemon,” June 2021 issue of Church & State). “What’s really going on is that conservative justices and judges often don’t like the results. They don’t like having to rule against governmental support for religion or special privileges for favored religious groups.
“The real problem for the lower courts is that the members of the Supreme Court who have tried over the years to weaken, scale back, and cast doubt on Lemon haven’t been able to agree on an alternative. It turns out to be really tough to craft a useful, workable legal test other than Lemon,” Katskee added.
By the time the third church-state case in which Alton Lemon was tangentially involved was moving through the federal courts 20 years ago, the cracks in the Lemon Test were becoming more visible.
In 2002, Lemon was in a federal courtroom to hear arguments over the constitutionality of a Ten Commandments plaque on the wall of a Philadelphia-area courthouse. Upon learning that Lemon was in the audience, the judge introduced him. That judge, correctly applying the Lemon test, ordered the plaque to be removed. Sadly, a year later, a federal appeals court reversed that decision and allowed the plaque to stay, citing its historical significance. The challengers opted not to appeal the case further.
The historical significance argument is gaining traction. In the Supreme Court’s most recent case involving a religious display on public land – 2019’s American Legion v. American Humanist Association, which involved a towering, 40-foot cross in Bladensburg, Md. – the court majority similarly pointed to the cross’s nearly 100-year-old history, that its intent as a war memorial conveyed a secular message, that it was located near other secular monuments and that removing it could be interpreted as hostility toward religion.
Alton Lemon didn’t live to see the court so thoroughly ignore his namesake test in the Bladensburg Cross case; he died in 2013 at the age of 84. But late in his life he was aware of the growing threat to the cause that meant so much to him: “Separation of church and state is gradually losing ground, I regret to say,” Lemon told The Philadelphia Inquirer in 2003.
For now, as Katskee noted last year, “Lemon is still the law.” And regardless of what happens in the future, Alton Lemon’s name will always be remembered alongside other protectors of the fundamental American principle of church-state separation.