The Lemon Approach
The Supreme Court’s approach to the Establishment Clause has been the subject of much critique. Justice Thomas, for example, has chided his colleagues for having “confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess.”
The earliest and most persistent framework was announced in the Court’s 1971 decision in Lemon v. Kurtzman, one of the cases we will read for today. The Lemon test requires courts to examine a law challenged under the Establishment Clause to ensure: (1) that it has a secular legislative purpose; (2) that its principal or primary effect neither advances nor inhibits religious practice; and (3) that it does not result in an “excessive government entanglement” with religion.
The Lemon Test has faced many detractors. Consider this passage from a 1993 concurrence by Justice Scalia:
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. Its most recent burial, only last Term, was, to be sure, not fully six feet under. 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. The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts.” Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 397 (1993) (Scalia, J., concurring).
As we move through the part of the course that deals directly with the Establishment Clause, keep the Lemon test in mind. Should Lemon apply to school prayer? Legislative prayer? Religious displays? School funding? Are certain contexts more or less suited to the application of Lemon?
Lemon v. Kurtzman, 403 U.S. 602 (1971)
Committee for Public Education v. Nyquist, 413 U.S. 756 (1973)