The Democratic candidates offering left-wing variations of Trump's populism recognize the dangers of imitating his transparency on judicial selection.
2021 marks the fiftieth anniversary of the Supreme Court case, Lemon v. Kurtzman. Its majority opinion, authored by Chief Justice Warren Burger, is well-known for giving us what would come to be called “The Lemon Test,” a three-pronged analytical tool that Burger claimed is the “cumulative criteria developed by the Court over many years.” It was, in Burger’s mind, a succinct summary of what “may be gleaned” from the Court’s prior rulings in Establishment Clause cases: “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 government entanglement with religion.’” According to Burger, if the law or policy in question fails any one of the test’s three prongs, then the law or policy violates the Establishment Clause.
The Road to Lemon
From 1971 onward the Lemon Test would become a point of contention between the Court’s justices, largely because the “prior rulings” referred to in Lemon were cases decided after 1947, and for this reason, seemed to some justices to rely on contrived reasoning intended to institutionalize a strict separationist view of the Establishment Clause, as if it were uncontroversially the American view on the relationship between church and state. For it was in 1947, in the case of Everson v. the Board of Education, that the Court for the first time applied the Establishment Clause to the states by incorporating it through the liberty clause of the 14th amendment. Although Everson’s majority opinion, authored by Justice Hugo Black, provided no argument for the clause’s incorporation (aside from citing dictum in Murdock v. Pennsylvania , a free exercise case), it did sketch out what the Court considered the Establishment Clause’s true meaning, one that Black claimed could be attributed to what its framers understood it to mean. Writes Black:
The “establishment of religion” clause of the First Amendment means at least this:  Neither a state nor the Federal Government can set up a church.  Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.  Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.  No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.  No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion.  Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.
Black applied this six-pronged account of the Establishment Clause to the law under scrutiny in Everson: a New Jersey statute that authorized local school districts to develop policies on the transportation of children to and from school. What occasioned a challenge to this statute was a Ewing, New Jersey school board policy that authorized reimbursement of the bus fares of students attending parochial schools. Ruling in favor of the school district, Black reasoned that because the policy was simply offering the district’s parochial school students a welfare benefit that it offers its public school students, the policy does not run afoul of the Establishment Clause.
By framing the reimbursement as a public welfare benefit, Black analogized that it was not unlike “state-paid policemen, detailed to protect children going to and from church schools from the very real hazards of traffic,” for such a government action “would serve much the same purpose and accomplish much the same result as state provisions intended to guarantee free transportation of a kind which the state deems to be best for the school children’s welfare.” To be sure, religion in both cases is “benefited,” insofar as some religious parents would not send their children to parochial schools if not for the reimbursement or the police detail. But if the government were to deny such benefits to these families, would not, argues Black, this constitute a violation of their free exercise rights? For the First Amendment also teaches us that the government “cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” On the other hand, the Establishment Clause forbids New Jersey from contributing “tax-raised funds to the support of an institution which teaches the tenets and faith of any church” (even if, presumably, the policy does not exclude any religious or similarly-situated secular institution). Nevertheless, Black opines, the financial support given to religion by Ewing’s tax-funded reimbursement scheme passes constitutional muster because it is attenuated enough from the sorts of tax-supported contributions forbidden by the Establishment Clause.
As one can readily see, there seems to be a tension in Black’s understanding of the religion clauses of the First Amendment. He seems to be saying that it is a violation of the Free Exercise Clause for the state to single out religion for exclusion from certain public benefits, while at the same time saying that it is a requirement of the Establishment Clause for the state to single out religion for exclusion from certain public benefits. It would, of course, be unfair and uncharitable to judge this to be an obvious contradiction, since one could argue, as Black argues in Everson, that some public benefits—such as the direct funding of churches and their ministers, the sort of state action that drew the ire of Thomas Jefferson and James Madison—are clear-cut violations of the Establishment Clause—while other public benefits—such as providing police and fire fighting assistance to churches—amount to indirect aid that is made available to all citizens and does not have the purpose of financially supporting the mission of any religious institution. Nevertheless, as the Court’s subsequent cases leading up to Lemon reveal, this distinction is not so easily delineated.
Consider just these three cases: Zorach v. Clauson (1952), Board of Education v. Allen (1968), and Walz v. Tax Commission of the City of New York (1970). In Zorach, the Court upheld a New York City release time program that permitted students to leave campus for religious classes if requested by their parents. No instruction took place in public school buildings and the program did not use any public funds. Yet, as Black queries in his dissent: Does not this arrangement aid religion and violate state neutrality since it requires that government officials cooperate with religious authorities in a way that encourages religious instruction?
In Allen, the Court upheld a New York law that required school districts to loan textbooks to all school-age students without charge, including those attending private religious schools, most of which were Catholic. The books had to be designed for public schools or approved by the district’s board of education. Justice Byron White used in his majority opinion a test first fashioned by the Court in Abington School District v. Schempp (1963), that asks the question of whether the purpose and primary effect of the law under scrutiny either advances or inhibits religion. (Notice that the Abington test is essentially a primitive version of Lemon’s first two prongs). Based on that test, White concludes that the facts in Allen are similar to those found in Everson. Thus, reasons White, New York State, like the school district in Ewing, is merely providing to parochial school students access to a benefit that all public school students already enjoy. In a vigorous dissent, Black, the author of Everson’s majority opinion, maintains that there is a big difference between books and buses. The latter are just a means of transportation, while the former are the “heart of any school” and “the most essential tool of education.” Although the law requires that the books be secular, Black was convinced that this provision would not prevent parochial schools from using the books in a way that advances their sectarian agenda.
The Court in Walz wrestles with the question of whether the government’s granting of tax exemption to religious institutions violates the Establishment Clause, since it seems by implication to be in violation of Everson’s directive: “No tax in any amount, large or small, can be levied to support any religious activities or institutions….” If the government cannot assist religion by financially subsidizing it with monies derived from taxation, why is it acceptable for the government to assist religion by financially exempting it from paying monies by means of taxation? In his majority opinion, Chief Justice Burger answers that question by appealing to the long history in America of tax exemption of religious institutions and how that has provided the sort of distance between church and state that helps maintain the true purpose of the Free Exercise and Establishment Clauses, “one that seeks to mark boundaries to avoid excessive entanglement.” (Notice that this is Lemon’s third prong). Arguing that the religion clauses should be read to require the government to exercise “benevolent neutrality” toward religion, Burger holds that church tax exemption does not violate the Establishment Clause. He writes: “[W]e will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality…” So, even though church tax exemption does aid religion, it neither establishes a state church (since it applies to all faith-based, and many non-faith based, non-profit groups) nor does it require that the state interfere with religion (since it eliminates a means by which the government could control religion, taxation).
Lemon and Its Reasoning
Lemon was decided the year after Walz. In Lemon the Court confronts challenges to statutes in Pennsylvania (1968) and Rhode Island (1969). The latter set up a program that supplemented the salaries of teachers at private elementary schools for the purpose of making the schools more competitive in attracting better quality faculty members. The statute included several restrictions: Teachers’ salaries could not exceed those earned by their public school peers; they had to agree in writing that they would not teach religion; and they must be employed in a private school with a per-pupil expenditure on secular subjects that is less than that of the public schools during the same designated time period. About a quarter of all school age children in the state attended private schools, 95% of whom were enrolled in Catholic schools.
The Pennsylvania law gave power to the state superintendent to reimburse the costs of designated “secular educational services” offered by the state’s private schools, which educated 20% of the state’s student population. Over 96% of them were enrolled in religious-affiliated institutions, most of which were Catholic. The legislature had found that the state’s nonpublic schools were not doing well, and that a way to address this problem was to provide financial assistance to private schools for their secular objectives. Qualifying institutions were directly reimbursed for “teachers’ salaries, textbooks, and instructional materials,” limited to “mathematics, modern foreign languages, physical science, and physical education.” The superintendent was required to approve the textbooks and instructional materials. No state money was to be given for courses that include “any subject matter expressing religious teaching or the morals or forms of worship of any sect.” All schools receiving funding had to account for every cent by employing state-prescribed accounting procedures. This was so that all the costs of secular education could be properly identified and distinguished from monies used for courses and materials not funded by the program.
Acknowledging that the language of the religion clauses is imprecise and “at best, opaque,” Chief Justice Burger tells us that the Court nevertheless “must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: ‘sponsorship, financial support, and active involvement of the sovereign in religious activity’” (quoting from his own opinion in Walz). It is at this point that he introduces the Lemon Test as a way to determine whether the government’s action is sponsoring, financially supporting, or actively involved in religious activity.
As for the first prong of the test, Burger states there is no evidence that the legislative purpose of the Pennsylvania and Rhode Island statutes is to advance religion. Their purpose was “intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws.” On the matter of the second prong—whether the statutes have the primary effect of advancing or inhibiting religion—Burger acknowledges that the statutes included provisions that were intended to prevent that very impact, e.g., prohibiting state monies going to teachers of religion. However, the Chief Justice does not say whether these statutory precautions would be adequate in preventing a second prong violation, since, as he argues, the implementation of the precautions themselves would violate the third prong, which prohibits the state from fostering excessive government entanglement with religion. He draws this conclusion from the character and purpose of the private academic institutions funded by both statutes, most of which are Catholic schools that are committed to the integration of faith and reason, are obedient to the authority of the Church’s magisterium, and are staffed by religious and lay people who teach in (or who work adjacent to) buildings in which religious activities are conducted and that are teeming with religious symbols. In order for the state to ensure that its funding does not have the primary effect of advancing religion, it would have to engage in monitoring and surveillance of not only the schools’ financial instruments but also the schools’ teachers and their classroom conduct. Combine this with the political divisions that would likely arise along religious lines from Pennsylvania’s direct funding scheme, it seems clear to Burger that the implementation of these statutes would excessively entangle the government with religion.
Although the Lemon Test for several members of the Court becomes the standard by which Establishment Clause challenges are assessed, it never finds universal acceptance, and over time, as the Court’s composition changes, it gains critics, loses allies in certain types of cases, and its terms seem endlessly pliable. For many justices, the Lemon Test is a short-hand way to reinforce a no-aid interpretation of the Establishment Clause. For some, like the test’s author, Chief Justice Burger, it is merely a rule of thumb that the Court is free to apply or not apply depending on the circumstances of the case. But for others, like Justice Antonin Scalia, the Lemon Test is a hermeneutical fabrication with no relation to the text of the First Amendment and its original meaning.
The views of the first faction are found in cases like Committee for Public Education v. Nyquist (1973). In that case the Court employs the Lemon Test to strike down a New York state law that provides facility repair and maintenance grants to qualifying nonpublic schools as well as support for families that send their children to non-public schools: tuition assistance for low-income families and tax-exemption for ones with higher incomes. Other cases that fall within this no-aid orbit include School District of Grand Rapids v. Ball (1985) and Aguilar v. Felton (1985). Although, as I note below, this no-aid interpretation of the Establishment Clause eventually loses its dominance on the Court, it still rules the popular progressive imagination (See, e.g., Justice Sonia Sotomayor’s dissenting opinion in Trinity Lutheran v. Comer ).
Burger abandons the Lemon Test in Marsh v. Chambers (1983) and reconceptualizes it in Lynch v. Donnelly (1984), two cases that are not so much about financially aiding religion—as in the line of cases from Everson that dealt with education—but about government’s public acknowledgement of religion in civil society. Marsh concerns the question of whether a state violates the Establishment Clause when it pays clergy to open a legislative session with prayer. Ruling in favor of the state, Burger ignores the Lemon Test entirely. He appeals to the long history of legislative prayer and chaplaincy in America including the policy of the First Congress that passed the Bill of Rights. He argues that this historical practice helps us to better grasp the drafters’ understanding of the scope of the Establishment Clause, even though historical practice by itself is not decisive. In dissent, Justice William Brennan, points out the obvious: under the Lemon Test, the legislative prayer is clearly unconstitutional, since its purpose and primary effect are undoubtedly religious.
In Lynch, Burger holds that a city-owned and maintained Christmas display that includes a crèche (a nativity scene) does not violate the Establishment Clause. Sitting on the grounds of a privately owned park, it is erected every Christmas season by the city in cooperation with the local merchants’ association. In his majority opinion, Burger tells us that the Court has “often found it useful” to apply the Lemon Test, but it “has repeatedly emphasized [its]… unwillingness to be confined to any single test or criterion in this sensitive area.” (He says something similar in his dissent in Wallace v. Jaffree ). Nevertheless, he claims that the display passes the test if one looks at its historical and cultural context and compares the city’s minimal support of it to the policies upheld in Everson, Walz, Clawson, Chambers, and several other cases. In concurrence, Justice Sandra Day O’Connor suggests that the purpose and effect prongs of the Lemon Test should be assessed by asking whether the government’s action constitutes an endorsement of religion. “Endorsement,” writes O’Connor, “sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” During her tenure on the Court O’Connor would champion this “Endorsement Test” as a kind of Lemon-substitute. In dissent, Brennan picks up where he left off in Marsh, arguing that the display would not survive if the Court had rigorously applied the Lemon Test. It is obvious to Brennan that it is only because of the crèche’s religious meaning that it makes its appearance in the display, and its effect is the government placing its imprimatur on a religious belief not shared by non-Christians.
Although no friend of the Lemon Test, Chief Justice William Rehnquist, in Zelman v. Simmons-Harris (2002), nevertheless employs Lemon-type reasoning to uphold an Ohio school tuition and tutorial aid program for inner-city children who are attending non-public schools including religious ones. But he does so with a subversive twist that pretty much guts the Lemon Test’s no-aid interpretation. What matters for Rehnquist is that the aid is administered indiscriminately and that it is directed by private choice. Zelman is in a line of cases that assess the constitutionality of aid to religion through the lens of neutrality and not just on whether the state aids religion per se, e.g., Witters v. Washington Dept. for the Blind (1986); Zobrest v. Catalina Foothills School District (1993); Rosenberger v. University of Virginia (1995); Mitchell v. Helms (2000); Trinity Lutheran v. Comer (2017); Espinoza v. Montana Department of Revenue (2020). Although Lemon is mentioned in some of these cases, it plays no substantive role in the Court’s judgment. Even in Locke v. Davey (2004), in which the Court holds that a state does not violate the Free Exercise Clause when it denies a scholarship to a college student who wants to use the aid for ministerial training, the Court ignores Lemon and appeals to the state’s discretion in following Jefferson and Madison’s rejection of government funding of ministers. The implication is that if the state had allowed the scholarship it would have not violated the Establishment Clause.
On the government’s cultural recognition of religion, the Court has more or less taken its cue from Burger in Marsh and Lynch, largely ignoring or re-conceptualizing the Lemon Test. There are, of course, exceptions, e.g., Justice David Souter’s majority opinion in McCreary v. ACLU (2005). But in cases like Van Orden v. Perry (2005), Town of Greece v. Galloway (2014), and American Legion v. American Humanist Association (2019) the Court engages in a kind of balancing test in order to avoid the extremes of hostility toward religion and overtly endorsing it. It looks at a variety of factors for guidance including historical practice, the government’s purpose, whether citizens are coerced, and the public’s perceptions.
There are two primary reasons that account for the Court’s shift away from the logic of Lemon. First, the Lemon Test is ahistorical. Because it is rooted in post-1947 Court opinions and not on how the “establishment of religion” was generally understood when the First Amendment was ratified, the Court’s application of the Lemon Test often seems ad hoc, counter-intuitive, and only superficially connected to the historical realities that gave rise to the Establishment Clause. One finds, for example, in the opinions of several justices (especially Black, Brennan, and Souter) the citation of Jefferson and Madison’s objections to government funding of ministers as the justification for interpreting the Establishment Clause as forbidding virtually all aid to religion. But, as Justice Clarence Thomas has noted, given the practices of the time, Jefferson and Madison’s objections are better read as a rejection of preferential financial support of one religion and thus as a violation of equality (or neutrality), and not a rejection of support of religion per se. After all, as advocates of religious liberty, Jefferson and Madison also abhorred singling out religion for special burdens. It is one thing to say that if the government creates a specific tax in order to fund the salaries of Christian ministers, it has established a religion; it is quite another thing to say, as the champions of the Lemon Test and its patrimony often say, that the government is required by the Establishment Clause to burden religious citizens by excluding religious schools from an otherwise universal tuition voucher program.
Second, if applied rigorously, the Lemon Test institutionalizes both a governmental preference for secularism as well as a hostility toward religion. Not only would the state be required to engage in viewpoint discrimination by excluding religion from virtually all public benefits, but it would also be required to completely eliminate from the public square any symbols, words, or monuments that acknowledge the religious heritage and beliefs of the nation’s citizens. Legislative prayers and chaplaincy, “under God” in the Pledge of the Allegiance, public high school Christmas plays, “In God We Trust” on our currency, state monuments that include the 10 commandments, and crosses on public property memorializing fallen soldiers would all be declared unconstitutional under a regime of Lemon Test scrupulosity. For many justices, even some sympathetic to the Lemon Test, this is just a bridge too far.
Nearly thirty years ago, in a colorful passage from his concurrence in Lamb’s Chapel v. Center Moriches Union School District (1993), Justice Scalia bemoaned the resiliency of Lemon: “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.” Given the current trajectory of the Court, it seems that these fears are now unfounded. Lemon, at the age of 50, is finally dead and buried for good. May it rest in peace.
Author’s Note: Special thanks to Baylor philosophy doctoral students Rich Eva and Nick Hadsell for their assistance editing this article.