The 1971 decision of the US Supreme Court that shaped Established Clause law has been known as “The Case.” It is now known as Lemon vs. Kurtzman. The Rhode Island and Pennsylvania legislatures had passed laws authorizing teachers’ salaries at non-public schools to be paid by the state so long as they used state-approved textbooks and instructional material. The Supreme Court’s 8-1 decision struck down this law finding that because most of the teachers covered by facially neutral laws were from Catholic schools and because Catholic schools at the time taught Catholicism (trust me, this is no longer the case), subsidizing any teachers in those schools violated the US Constitution.
Held:These statutes violate the Religion Clauses in the First Amendment. The cumulative effect of both the laws and their relationship is excessive entanglement of government with religion.
(a) Entanglement in Rhode Island programs arises from the religious purpose and activity of churches-affiliated schools. This includes children under the age of eighteen and teachers who are subject to religious discipline and control. To ensure the First Amendment and statutory limitations are respected, these factors warrant constant surveillance by the state. Furthermore, under the Act, the government must inspect school records to determine what part of the expenditures is attributable to secular education, as opposed to religious activity, in the event a nonpublic school’s expenditures per pupil exceed the comparable figures for public schools.
(b) Entanglement in Pennsylvania’s education program results from restrictions on teachers and supervision required for nonpublic schools to maintain a nonideological teaching role. Further, Pennsylvania’s statute provides ongoing financial aid to churches-related schools. Historically, governmental control and surveillance measures tend to follow cash grant programs, and here the government’s post-audit power to inspect the financial records of church-related schools creates an intimate and continuing relationship between church and state.
(c) Religious division was one of the goals of the First Amendment. These programs where annual and possibly permanent appropriations benefit a relatively small number religious groups result in political fragmentation.
The decision resulted in the so-called “Lemon test” to evaluate the permissibility of government “entanglement” with religion.
- A secular purpose must be the sole purpose of the statute. Also known as the Purpose prong
- The statute’s primary, or main effect must not advance nor hinder religion. Also known as the Effect Prong
- The statute must not result in an “excessive government entanglement” with religion. The Entanglement Prong is also known.
Factors:
- Beneficiated institution’s character and purpose
- The state can provide aid in the nature that is most natural.
- The relationship that results between the government and religious authorities.
The same as the Roe Vs. WadeA trimester system and imaginary rights arising out of substantive due process have made the Lemon test so untenable it was substantially altered over time. This was written by Josh Blackman at Reason.
Justice Gorsuch’s majority opinion does not overrule Lemon in so many words, but the import of the ruling is clear–follow Town of GreeceIt is not Lemon.
What the District and the Ninth Circuit overlooked, however, is that the “shortcomings” associated with this “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon The endorsement test is an offshoot. American LegionSee also Town of Greece v. Galloway (2014)You can replace with Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.’” Place in Greece
Justice Sotomayor’s dissent states the issue directly:
Today’s decision goes beyond merely misreading the record. Court of Appeal overrules Lemon v. Kurtzman, 403 U. S. 602 (1971), and calls into question decades of subsequent precedents that it deems “offshoot[s]” of that decision.
Finally! Lemon has been interred. It is fitting to quote from Justice Scalia’s Lamb’s Chapel concurrence:
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. The most recent burial was not six feet deep, but it happened only in the last term. Lee v. Weisman, 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. What is the secret to success? Lemon test’s survival, I think, is that it is so easy to kill. Although it is used to terrorize us and our audiences when it wants to, we have the ability to command it to go back to the tomb as we please. See, e.g., Lynch v. Donnelly (1984). If we are trying to ban a practice, we invoke it. e. g., Aguilar v. Felton(1985); whenever we want to continue a prohibited practice, we completely ignore it, Marsh v. Chambers (1983). Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts,” Hunt v. McNair (1973). It is worthwhile to keep such a useful and docile monster around at all times, even in somnolent. One never knows what might happen.
Justice Gorsuch has placed the pen in the end of the pencil. Lemon Test.
Justice Scalia must be smiling up at me, I think.
Eric Rassback of the Becket Fund for Religious Liberty had this to say about how Town of Greece (read our case summary).The new standard is. Lemon.
To resolve the Establishment Clause crises, my group, the Becket Fund for Religious Liberty, suggested that the Court adopt a historical approach. In particular, we asked the Court to consider Marsh as the “norm,” and the endorsement test as the “aberration.” Although Marsh’s specific analysis was terse – after the fashion of many Chief Justice Burger opinions – we said that MarshHistorical analysis of the type used in Establishment Clause analysis should be considered, but not endorsement. Yesterday, the Court rejected the notion that this was the case. Marsh “carv[es] out an exception” to general Establishment Clause jurisprudence. Instead, the Establishment Clause “must” be interpreted “by reference to historical practices and understandings.”
There are many advantages to this old/new approach. Instead of using the endorsement testing approach to force judicial officers into an uncomfortable, subjective and unresolvable role as psychological representatives of society, judges can use the historical approach which gives them objective facts. The context for any given practice that is challenged is no longer the judge’s mind, but the ascertainable facts of historical tradition.
Historical approaches allow courts to be more logical about the categories of establishment. Our Amicus brief, these fall roughly into four categories – government coercion, government control of churches, government funding of churches, and government delegation of powers to churches. This is how it would work in practice. For example, an Establishment Clause challenge to a government funding program would not start with the inherently abstract “effects” and “endorsement” tests, but with the Founders’ well-documented understanding of what sort of government funding contributed to an “establishment of religion.” The lower court’s analysis could compare the challenged program to the historic government funding of churches in the colonies and in England. Or as Justice Thomas puts it in his concurrence, the court can ask “What constitutes an establishment”? Contrary to Lemon’s premise that the Court “can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law,” there is in fact a wealth of historical scholarship that tells us what the Founders thought was an establishment.
Even though Gorsuch is reluctant to admit it, LemonThis ruling is effective overruled. Lower courts have been ordered by the Supreme Court to cease using this standard in deciding Establishment Clause cases. The dissent of Sotomayor is a statement that the Court should have followed Lemon and subsequent cases based on LemonFor the Bremerton school district, it would have been easy. It is now a matter of rules. The nation can be thankful that the Supreme Court has replaced official religious hostilities with policies of neutrality.
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