A shield. A ghoul. A great decision. A survivor. A misadventure. A clear structure. A checkered career. Doctrinal chaos. A grand unified theory. Crucial. Alive and kicking. On life support.
All have been used to describe the Lemon Test, the three-pronged analysis established 50 years ago this month by the U.S. Supreme Court to determine whether a government action violates the separation of church and state.
The test marked a watershed moment for religious freedom and church-state jurisprudence. For the first time, courts had comprehensive guidance for analyzing whether a violation of the First Amendment’s Establishment Clause had occurred.
“In the decades leading up to Lemon, the Supreme Court issued a string of decisions that provided important protections for church-state separation. What the court hadn’t done was to provide a legal test – a clear, organized way to analyze and decide cases,” said Richard B. Katskee, vice president and legal director at Americans United.
“Lemon changed all that,” Katskee said. “It collected, organized and explained what was important for litigants and courts to take into account, and it provided a clear structure for doing so. So not only did courts all across the country have the tools to decide cases more consistently and correctly, but government officials better understood what was required of them. And the rest of us knew how to hold them responsible when they didn’t live up to their constitutional obligations.”
Sadly, some Supreme Court justices in the half-century since that decision haven’t appreciated the Lemon Test as much as proponents of church-state separation have. Or more accurately, conservative justices haven’t liked applying the test when the obvious answers would mean stopping government from endorsing or supporting religion. Those justices have increasingly gone out of their way to ignore the test.
As the Lemon Test turns 50 this month, here’s a look at its origins, where it stands and where it might end up.
The Case: Challenging Aid To Religious Schools
The name of the Lemon Test was derived from the case Lemon v. Kurtzman, which was one of a trio of cases dealing with government aid to religious schools heard by the Supreme Court in 1971.
The lead plaintiff was Alton Lemon, an Army veteran, government employee and father from Philadelphia. Active in both the American Civil Liberties Union and the NAACP, Lemon told The Philadelphia Inquirer that he was attending an ACLU meeting when he first learned of a potential legal challenge to Pennsylvania’s Nonpublic Elementary and Secondary Education Act.
Enacted in 1968, the legislation was described as 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. Ostensibly, the aid was to be used only for “secular” education at private schools. 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 – the Salary Supplement Act, which funneled tax money directly to private school teachers. Participating educators had to affirm they taught no religious subjects and used only secular educational materials that were used by public schools. At the time of the Supreme Court’s opinion two years later, about 250 private school teachers had applied for the money – all of them employed by Roman Catholic schools.
Alton Lemon said he agreed to join the suit challenging Pennsylvania’s law because sending public money to private schools was “an issue around which I have some strong feelings,” he told the Inquirer in 1991.
Lemon, who was Black, feared that funding private schools with taxpayer money would especially erode the quality of public education for minority children: “If a lot of public funds are siphoned off, Blacks and minorities are going to suffer.”
Joining Lemon were several organizational plaintiffs – including Americans United. Others included the ACLU, NAACP, Pennsylvania Council of Churches, the Pennsylvania Jewish Community Relations Conference and the state’s largest teachers’ union, the Pennsylvania State Education Association.
When Lemon v. Kurtzman was filed in 1969, it’s unclear whether those involved realized the magnitude it would someday have. In the July-August 1969 issue of Church & State, the filing warranted all of one paragraph. But the case was mentioned many more times in the following months, especially after a federal court ruled 2-1 in favor of Pennsylvania officials, a decision that was appealed directly to the U.S. Supreme Court.
Meanwhile, a different federal court ruled against Rhode Island in DiCenso v. Robinson, the case challenging that state’s private school funding law. And a third federal court ruled against a group of Connecticut taxpayers in Tilton v. Richardson, which challenged provisions of the federal Higher Education Facilities Act of 1963 that allowed taxpayer money to fund construction of secular buildings at religious colleges and universities.
The U.S. Supreme Court heard arguments in all three cases at the beginning of March 1971 and issued opinions in all three on June 28, 1971.
The Test: A Three-Pronged Bulwark
“The Wall Still Stands” was the headline in Church & State after the Supreme Court ruled in favor of Lemon.
“What the Court has done is reaffirm faith in the time-tested American plan of separation of church and state,” exclaimed Dr. Glenn L. Archer, then the executive director of Americans United.
In 8-0 and 8-1 decisions respectively (Justice Thurgood Marshall did not participate in Lemon), the Supreme Court 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 noted that while the states had tried to take precautions to prevent public money from funding religious instruction, those precautions included review of school records – crossing the church-state line that prevents government from intruding on how religious schools operate.
“[T]he very restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role give rise to entanglements between church and state,” Burger wrote. “The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related school.
“Under our system, the choice has been made that government is to be entirely excluded from the area of religious instruction, and churches excluded from the affairs of government,” Burger concluded. “The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that, while some involvement and entanglement are inevitable, lines must be drawn.”
While the outcome in Lemon was a noteworthy victory for church-state separation, Burger’s conclusion – that it was unconstitutional to entangle religion and government – 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.
Rather, what was seminal 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 individual tests collectively became known as the Lemon Test; and if a government action failed any of the three prongs, the action should be deemed unconstitutional.
The Aftermath: The Court Starts To Sour On Lemon
At first, the Lemon Test seemed to be a straightforward guide to resolving many church-state disputes. It was applied just two years later in a second case that also bears Alton Lemon’s name: Sloan v. Lemon, which challenged a Pennsylvania law that allowed tax dollars to pay for private school tuition. Alton Lemon was victorious once again. 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.”
But fractures developed on the court pretty quickly, especially when it came to strictly applying the Lemon Test to cases involving public aid for private religious schools. By the late 1980s, the high court, now more conservative thanks to appointments during the Ronald Reagan presidency, had begun to ease up and 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.
This line of reasoning led to the watershed ruling in Zelman v. Simmons-Harris in 2002, in which the court determined that a private school voucher program in Ohio did not violate the Constitution because parents chose whether to use the tuition money at secular or religious schools (even though 96% of the students participating in the program were enrolled in religiously affiliated private schools).
The application of the Lemon Test is not limited to cases involving funding for private religious schools. The court has also used it when deciding cases involving religion in public schools, government-sponsored religious displays and other areas of church-state law.
In 2000, the court stopped a public school district in Texas from sponsoring student prayers at high school football games in Santa Fe Independent School District v. Doe; it found the prayers violated the first prong of Lemon that requires a policy to have a secular purpose. The court applied the same reasoning in 2005 when it narrowly found that Ten Commandments displays at two Kentucky courthouses were unconstitutional in the case McCreary County v. ACLU.
But in a clear display of the justices’ differing views of the Lemon Test and church-state separation, the court narrowly allowed a Ten Commandments monument to stand outside the Texas capitol building on the same day the court invalidated the Kentucky displays. In the Texas case, Van Orden v. Perry, Justice Stephen Breyer provided the needed fifth vote to maintain the monument.
Breyer cited the monument’s donation by a predominantly secular group; its placement in a park amid nearly 40 other historical, mostly secular monuments; and its more than 40-year history of unchallenged existence. “Where the Establishment Clause is at issue, tests designed to measure ‘neutrality’ alone are insufficient,” Breyer wrote, noting that strict “devotion” to secularism can transcend into “hostility to the religious.”
In the Supreme Court’s most recent case involving a religious display on public land – American Legion v. American Humanist Association, which involved a towering, 40-foot cross in Bladensburg, Md. – the court majority in 2019 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.
Writing in the Catholic University Law Review later that year, Americans United Associate Vice President and Associate Legal Director Alex Luchenitser and Madison Legal Fellow Sarah Goetz cautioned against the reliance on a historical test for which some justices seem to be advocating.
Unlike in legislative prayer cases like Marsh v. Chambers and Greece v. Galloway, in which the court upheld invocations during government meetings by pointing to the unbroken tradition of Congress having invocations and funding legislative chaplains since 1789, Luchenitser and Goetz noted there are few other modern church-state issues that can be traced back to the same time period as the creation of the First Amendment – the only appropriate historical test, Luchenitser and Goetz argue.
“Instead of making the law clearer, abandoning existing Establishment Clause jurisprudence in favor of a historical-practice test … would provide courts much less guidance than they have now,” Luchenitser and Goetz wrote. “That is principally because there are very few historical practices to which current practices can properly be compared.”
It’s been 50 years since Lemon was decided. And nearly 20 years since Justice Antonin Scalia notoriously referred to the Lemon Test as “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, … stalk[ing] our Establishment Clause jurisprudence once again, frightening the little children and school attorneys …” And yet, despite the hostility many conservative justices have aimed at Lemon, there has been no consensus for how to craft a better test.
“Courts across the country have had no trouble applying Lemon,” AU’s Katskee said. “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 said.
Alton Lemon died in 2013 at the age of 84. Late in his life, he wasn’t feeling optimistic about the future of the test that bears his name. “Separation of church and state is gradually losing ground, I regret to say,” Lemon told The Philadelphia Inquirer in 2003.
A year earlier, Lemon sat unrecognized in the back of a federal courtroom listening to arguments over a Ten Commandments plaque on the wall of a Philadelphia-area courthouse. Upon learning Lemon was in the audience, the judge introduced him.
That judge, correctly applying the Lemon Test, ordered the plaque to be removed. But a year later, a federal appeals court reversed that decision and allowed the plaque to stay, citing the plaque’s historical significance.
“Lemon is still the law,” Katskee added. “But as some members of the Supreme Court have worked overtime to create the impression that it isn’t, lower-court judges have felt ever more free to decide cases based on their personal biases rather than upholding constitutional protections. In other words, the conservative justices have been trying to push us back to the days when there was genuine confusion about how to apply the law, leaving the protections for religious freedom uncertain, unequal and unstable. That’s not just unfortunate but dangerous.”
