Will the Court Finally Kill the Lemon Test Ghoul?

In Everson v. Board of Education (1947), Justice Hugo Black clearly proclaimed that the “First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” Writing for the majority, he concluded that a New Jersey program subsidizing transportation of parochial school students was constitutional.  Four dissenting justices and many observers thought that the decision and opinion were contradictory.

The majority and dissenting opinions in Everson relied on a dubious reading of American history, but the metaphor of a wall of separation between church and state could have provided guidance to lower courts if anyone actually followed it. Taken literally, it would create a bright line prohibiting any state involvement with churches and other religious entities. For instance, such a wall would seem to exempt synagogues from building codes and prohibit police officers from protecting church property.  But no jurist has ever understood the Establishment Clause to require such outcomes.

In hopes of bringing some clarity to its Establishment Clause jurisprudence, justices created an analytical test in Lemon v. Kurtzman (1971). The Lemon Test permits laws and policies that benefit religion if they 1) have a secular purpose; 2) do not have a “principal or primary effect” of advancing or inhibiting religion; and 3) do not foster “an excessive entanglement between government and religion.” Alas, this test has proven no more useful than the wall of separation metaphor. Supreme Court Justices have used it to strike down and uphold a variety of very similar practices, and they periodically ignore it and then revive it. In 1993, Justice Antonin Scalia compared it to a ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”  

Since the mid-1980s, largely at the urging of Justice Sandra Day O’Connor, some jurists have held that the Establishment Clause is best understood as prohibiting governments from doing things that a reasonable observer might understand to be endorsing religion. This approach is sometimes merged with the Lemon Test, as it was by the U.S. Fourth Circuit Court of Appeals in The American Legion v. American Humanist Association. In spite of, or because of, all of these tests, many observers agree with Justice Clarence Thomas’s remark last year that “this Court’s Establishment Clause jurisprudence is in disarray.” 

The Bladensburg Cross

The American Legion v. American Humanist Association involves a 40-foot Latin cross erected by private citizens on private land to commemorate the 49 men from Prince George’s County, Maryland, who died in the First World War. Due to safety concerns, Maryland took over the memorial, known as the Bladensburg cross, in 1961. The Fourth Circuit concluded that this state involvement “has the primary effect of endorsing religion and excessively entangles the government in religion” and so is in violation of the Establishment Clause. This decision, if affirmed by the Supreme Court, raises questions about the constitutionality of numerous religious symbols and expressions on public land across the nation.

On February 27, 2019, the United States Supreme Court heard oral arguments in this case. Neal Katyal, representing the state of Maryland, emphasized that the Bladensburg cross was built 93 years ago by private individuals and that it is currently situated in a park alongside other war memorials. He also stressed that “in the wake of World War I, crosses like this one have an independent secular meaning.”Deputy Solicitor General, arguing as a “friend of the court” on behalf of the state and the American Legion, reiterated many of these points.  

Michael Carvin, representing the American Legion, encouraged the Court to abandon the Lemon Test. Drawing from Town of Greece v. Galloway’s approach to legislative prayer, he argued that a historical approach to the Establishment Clause provides better guidance to lower courts than asking them to discern whether a reasonable observer might consider a memorial to be endorsing religion. In this sort of case, he contended that governments can engage in religious speech so long as they are not coercive or attempting to proselytize. Because the purpose of the cross in question is to memorialize soldiers and not to coerce or covert, it is constitutional.

Monica L. Miller, arguing on behalf of the American Humanist Association, stressed that a cross is a uniquely religious symbol and that its use to memorialize soldiers amounts to endorsing Christianity. Some religious memorials, such as crosses in Arlington Cemetery, may be constitutional, but only if religious symbols from other faiths are present and no one tradition is favored over the others. Although there are other memorials in Veterans Park, they are small and obscure, and they pale in comparison to the 40-foot Bladensburg cross.

The Court’s more liberal justices peppered the monument’s defenders with questions about the appropriateness of using a cross to memorialize soldiers who may or may not have been Christians. They also objected, reasonably enough, to the claim that a cross is a secular symbol. Justice Kagan, for instance, asked Wall if his claim was that “the cross has become a symbol that’s universal” rather than “the foremost symbol of Christianity?”

Conservatives jurists, on the other hand, pushed Miller on why they should declare the Bladensburg cross to be unconstitutional in light of cases that upheld legislative chaplains, displays of the Ten Commandments on public land, and the like. They were also concerned about the implications for other memorials should the Bladensburg cross be found unconstitutional.

A Prediction

It is always risky to predict how justices will decide a case based on oral arguments, but their questions and past votes suggest that Justices Roberts, Gorsuch, Kavanaugh, Alito, and Thomas will find the cross to be constitutional. Justice Breyer may well concur with the majority, but primarily because the cross is almost a hundred years old. In his words: “History counts. And so, yes, okay [to the Bladensburg cross], but no more.” On the other hand, Justices Ginsburg, Sotomayor, and Kagan seem likely to view the cross as an unconstitutional endorsement of religion.  

The Lemon Test or a Return to America’s Founders?

The Blandensburg cross is almost certainly constitutional, but First Amendment experts will still await the Court’s opinion with bated breath to see if the majority repudiates the Lemon Test. Justice Gorsuch appears to be leaning in this direction, referring to Lemon’s endorsement test as a “dog’s breakfast” and later observing that “it’s been a long time since this Court has applied Lemon; but yet the courts of appeals continue to cite it and use it . . . and it has resulted in a welter of confusion.” He then asked whether “it is time for this Court to thank Lemon for its services and send it on its way?”

For the Court’s conservative justices, a clear alternative to the Lemon Test is a return to the original understanding of the Establishment Clause. Carvin referred specifically to brief written by Professor Michael McConnell for the Becket Fund for Religious Liberty, a brief with which Chief Justice Roberts was clearly familiar. McConnell argues that:

there is abundant evidence of what constituted an establishment at the founding—namely, (1) government control over the doctrine and personnel of the established church; (2) mandatory attendance in the established church; (3) government financial support of the established church; (4) restrictions on worship in dissenting churches; (5) restrictions on political participation by dissenters; and (6) use of the established church to carry out civil functions.  

A return to the original understanding of the Establishment Clause would prohibit governments from engaging in these sorts of policies. This approach would provide extensive protection to religious minorities without calling into question practices such as appointing military and legislative chaplains, permitting religious holiday displays on public land, and using crosses to memorialize fallen soldiers.  

Since 1947, the vast majority of Supreme Court justices have insisted that the Establishment Clause must be interpreted in light of its generating history. The Court misconstrued and distorted this history in Everson, and separationist justices have continued to do so to the present day. The Supreme Court would do well to heed Professor McConnell’s call to abandon the Lemon Test and rely instead on an accurate account of the Founders’ understanding of what the Establishment Clause does, and does not, permit.

Reader Discussion

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on March 07, 2019 at 10:11:08 am

McConnell injects some sanity, as well as history, into the debate.
Kudos to McConnell.

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on March 07, 2019 at 11:38:42 am

Its an anti-ESTABLISHMENT clause not an anti-ENDORSEMENT clause. The first definition in Merriam-Webster states: to institute (something, such as a law) permanently by enactment or agreement. Michael McConnell's list seems to provide a fine starting place for SCOTUS to begin its reassessment of doctrine.

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Ron Johnson
on March 07, 2019 at 11:51:55 am

Yes. It seemed to me that the at the oral arguments one of the lawyers for American Legion, Michael Carvin, screwed up by saying the replacement test would prohibit more than just coercion. Coercion is ALL it should prohibit, and nothing more.
I realize why Carvin would want to argue for the inclusion of prohibitions on "endorsements"- it would mean overturning fewer precedents in this ruling. But so be it. If this is going to be a landmark where the court gets the original meaning of the establishment clause right for the first time, forget the "judicial minimalism." Multiple stakes need to be driven through multiple hearts to kill Lemon

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CJ Wolfe
on March 07, 2019 at 13:19:48 pm

"there is abundant evidence of what constituted an establishment at the founding—namely, (1) government control over the doctrine and personnel of the established church; (2) mandatory attendance in the established church; (3) government financial support of the established church; (4) restrictions on worship in dissenting churches; (5) restrictions on political participation by dissenters; and (6) use of the established church to carry out civil functions. "

Let's follow this to an inevitable issue: religion in education. Does this mean that public schools could offer a class about Christianity as long as it isn't a graduation requirement? Would they have to offer classes about other religions? I agree that the Lemon test is clunky but, it seems like McConnell's definition of establishment is an elaboration of "excessive entanglement."

It seems to me that the Establishment Clause comes up primarily when Christians feel discriminated against for not being able to have religious icons in public (government) spaces or they want to shape public policy based on Christian values. Since 70% of Americans identify as Christians, doesn't it mean that all Christian icons and symbols are inherently an endorsement of the predominant religion?

I also note that McConnell's definition includes 2 specific references to preserving (or at least not infringing on) minority religions. I would argue THAT (protecting minority speech/groups/views/assembly) was the primary purpose of the Establishment Clause and the other 1st Amendment rights.

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Make Lemonade
on March 07, 2019 at 14:22:07 pm

funny you should ask. re: classes on religion:

I recall at a public university some five decades ago, taking a class on Comparative Religions. while it was NOT a requirement, it most certainly counted towards one's degree.

Yep, such classes ought not to be mandatory; but as an elective, I see absolutely no problem. This, of course, will not be sufficient for the "humanists" or whatever they call themselves as it appears that they desire the outright criminalization of any and all things religious.

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on March 07, 2019 at 15:48:06 pm

Such a course could be mandatory for a degree in a public institution if the student is majoring in religion. There is no First Amendment problem with a state school offering courses or majors in religion so long as the school does not favor one particular religion over another.

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on March 07, 2019 at 16:55:54 pm

One sign of hope for Breyer from the oral arguments is the part where he mentions "a very good book, the Law & Its Compass, Lord Radcliffe, all our liberties come from freedom of religion."

On hearing that from Breyer, my first impression was to say: who the hell is Radcliffe and why bring him up? Why not just cite any number of American authorities from the Founding who themselves considered religious freedom the "first freedom"? I guess this is a bit like bringing in Alexander Meiklejohn to talk about free speech.

Having looked it Radcliffe up now , there are ALOT of worse authors Beyer could be siting as his authority on religious freedom (Brian Leiter comes to mind). So that gives me hope for Breyer in this case, and it's clear he's been making an effort to read and learn more about the issue

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CJ Wolfe
on March 08, 2019 at 06:49:42 am

Let's return to the original understanding of the Bill of Rights only applying to the federal government, not the States.

The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government. The fact is, prior to incorporation, the Bill of Rights did not apply to the states. State constitutions all had bills of rights, and many of the rights protected by the states mirrored those in the federal Bill, and many went further than the federal Bill.

But in Gitlow v. People (1925), judges on the supreme Court asserted – without any justification in Law or Fact – that the 14th Amendment (which applies to the States) incorporates the First Amendment so that the First Amendment now restricts the powers of the States!

The judges’ new interpretation of the 14th Amendment became the weapon the Court has used to silence Christians and to seize Power over States & local governments. By claiming that the First Amendment restricts the powers of the States & local governments, the Court set itself up as policeman over the States, over counties, over cities & towns, and even over football fields & court-house lawns.

In this way, the Bill of Rights, which was intended to be the States’ and The Peoples’ protection against usurpations of power by the federal government, became the weapon the supreme Court used to usurp power and force their wills on all People in Our Land.

Misconstruing of the establishment clause is secondary to the usurpation by SCOTUS starting in Gitlow v People in 1925.

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Jim Lewis
on March 08, 2019 at 13:22:35 pm

Well, obviously a religion major would have to take religion classes.

I questioned whether the school (public secondary education) would have to provide a class on Islam or Judaism. They offer a Comparative Cultures (religions, too) in the local high school, but that's not the same as a class solely related to Christianity.

Another question: would using McConnell's definition allow schools to teach Creationism instead of evolution?

It flummoxes me that Christians (the majority religious group in the U.S.) insist that they are being persecuted for their religion. Not only that, politicians and policy advocates use Christian values to justify regulation of private affairs (same sex marriage and women's right to choose). I said something to this effect in my first post, but it bears repeating.

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Make Lemonade
on March 11, 2019 at 08:44:03 am

True. There is a difference between establishing and endorsing, and that difference makes all the difference when it comes to Congress “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The Lemon Test is not an accurate means to rule in regards to a violation of church-state relations, because it does not include any of the necessary steps required by law in order to make a law, “respecting an establishment of religion.”

One could say, those necessary steps are elementary:


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Image of Nancy
on March 11, 2019 at 17:23:21 pm

Just as slavery was not a State’s Right issue, but a Human’s Right issue, so too, our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, grounded in Divine Law, is a Human’s Right issue, which, because it does not depend on where that son or daughter of a human person is located, is binding in both State and Federal Law.

Any attempt on the part of State or Federal Government, to coerce any person into denying The Sanctity of the marital act, by reordering men and women, according to sexual desire/inclination/orientation, which necessarily sexually objectifies the human person, and denies our inherent Dignity as a beloved son or daughter, while violating God’s Commandment regarding lust and the sin of adultery, simultaneously, in an attempt to coerce the affirmation of sexual acts that would necessarily deny the Sanctity of the marital act within The Sacrament of Holy Matrimony, would be a violation of The First Amendment for all Faithful Catholics in communion with Christ and His One, Holy, Catholic, and Apostolic Church.

For Catholics, “It is not possible to have Sacramental Communion without Ecclesial Communion”, due to The Unity Of The Holy Ghost.

It is not possible to coerce a Catholic into denying the Sanctity of the marital act, without first and foremost, “prohibiting the free exercise” of Catholicism, and any other religion that takes Genesis, and thus the fact that God Is The Author Of Love, Of Life, and Of Marriage, seriously.

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on March 11, 2019 at 22:36:27 pm

One future problem I foresee is that even under the original interpretation of the establishment clause, conservative Islam fails virtually all the tests.

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Frank Wilson
on May 16, 2019 at 16:11:09 pm

[…] often won. Yet the Court moved away from the extreme separationist rhetoric of Everson in favor of balancing tests such as that articulated in Lemon v. Kurtzman (1971). On the surface, the period between 1971 and […]

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A Strict Separationist Speaks

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.