The Lemon Test: Its Inception, Application, and Death
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The First Amendment commands that congress “shall make no law respecting an establishment of religion.” Nevertheless, deciding what laws impermissibly establish religion is not an easy task. Lemon v. Kurtzman, decided in 1971, was a defining moment in First Amendment jurisprudence and became a critical test of Establishment Clause violations for decades. However, the recent Supreme Court decision in Kennedy v. Bremerton School District is being viewed as the official end of the Lemon Test with the Court holding that the test had been “long ago abandoned.” While prior cases implied the growing dislike of Lemon, Kennedy sparked a new debate on the Establishment clause and the Court’s approach in future cases.
In Lemon v. Kurtzman, decided in 1971 and written by Chief Justice Burger, the Supreme Court held that Pennsylvania’s and Rhode Island’s laws allowing state funding of certain teachers’ salaries in church-related educational institutes violated the Establishment Clause. These state laws would grant state funding to supplement the salaries of teachers in religious schools who taught secular subjects due to concerns with rising salaries and school costs.
The Court held that the laws were unconstitutional and created a three-part test to determine whether laws were permitted under the First Amendment’s Establishment Clause. To pass the test, the law must: 1) have a secular purpose, 2) have a principle or primacy effect that neither advances nor inhibits religion, and 3) not foster excessive government entanglement with religion. In applying this framework to the state laws in question, the Court held that these laws constituted excessive entanglement between religion and government. The Court’s analysis cited multiple reasons for this conclusion, including the inherently religious purpose of these schools, the dangerous erosion of the separation between church and state, the risk of excessive government oversight and investigation into religious school’s finances. There were also claims that upholding the Pennsylvania and Rhode Island laws would insert religious preferences into politics, and that unlike in other cases, there was no long standing tradition in support of these laws.
At the time, Lemon was viewed as a summary of previous case law and designed to clarify the precedent, especially for lower courts. Prior cases had upheld various state actions regarding religious schools. For example, states were required to allow private school attendance to fulfill school attendance obligations. Schools were also permitted to make arrangements where students may leave class to attend religious services, fund programs like transportation, and to purchase textbooks on secular subjects even in religious schools. In a more general context, the Court had also permitted Sunday closing laws, tax exemptions for churches, and government funding improvements in religious hospitals.
While the Lemon Test remained prominent in First Amendment decisions for many years, it was not without criticism and competing tests. Numerous scholars noted the application of Lemon was complex and messy and caused many lower courts and lawmakers to struggle to understand the three prongs. The test was also easy to fail and thus invalidated many state laws. Additionally, other competing tests were proposed throughout First Amendment cases.
One such alternative framework has been described as the coercion test. This test is generally associated with Justice Kennedy’s opinion in Lee v. Weisman from 1992, which prohibited a school’s practice of allowing a member of the clergy to offer invocations and benedictions at graduation ceremonies. The analysis in this case focused on the pressure put on students to stand or remain respectfully silent during a school’s invocations. Justice Kennedy argued that even though the pressure was “subtle and indirect” it was still compulsion and forced students to exhibit “an expression of participation in the prayer.” However, Justice Scalia firmly disagreed, arguing that the hallmark of coercion is “support by force of law and threat of penalty.”
A second test that functions as a complementary offshoot of Lemon is the endorsement test, which was championed as a clarification in the Courts doctrine and the Lemon Test. Justice O’Connor proposed the test in her concurring opinion in Lynch v. Donnelly in 1984. The endorsement test focuses on whether the law in question communicates a message of government endorsement or disapproval of religion based on the perceptions of a reasonable observer. While this test has also faced criticisms and is no longer a favored test, lower courts still utilized the test in varying manners for many years.
In Lamb’s Chapel v. Center Moriches Union Free School District, decided in 1993, the Supreme Court reversed a New York law prohibiting school property from being used for religious purposes even after school hours. In holding that the law was an unconstitutional restriction on speech, the Court also applied Lemon to find that there would be no Establishment Clause violation in permitting religious meetings. However, Justice Scalia’s concurrence heavily criticized the use of the Lemon Test and described it as “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad.”
In 2013, the Court decided Town of Greece v. Galloway, which upheld a legislative practice of opening each session with prayer by a state funded chaplain. While the Court primarily relied on the prior case of Marsh v. Chamber and the tradition of similar practices, the case raised ambiguities on the future of the Lemon Test. The majority never explicitly rejected or relied on Lemon, and the dissent only mentioned it briefly. This startling absence of consideration led to speculations on the uncertain future of the Lemon Test.
These uncertainties reached a climax in Kennedy v. Bremerton School District. Decided in June of last year, the case again addressed claims under the First Amendment’s Establishment Clause. Here, Kennedy, a high school football coach, was suspended by the district due to concerns his practice of praying during and after games would lead to liability under the Establishment Clause. In holding that Kennedy’s prayers were conditionally protected, the Court also addressed the Lemon Test. Describing both the Lemon Test and the offshoot endorsement test as “long ago abandoned,” the Court instead held that the Establishment Clause must be interpreted with “reference to historical practices and understandings,” borrowing language from Town of Greece. The defining line of constitutionality must be drawn in accord with history and the understanding of the Founding Fathers, with a focus on original meaning. The dissent by Justices Sotomayor, Breyer and Kagan critiqued the majority’s treatment of Lemon and argued that the test remains a valuable consideration in such cases.
Although Lemon “was not explicitly overturned” by Kennedy, the Court’s treatment firmly implies that the test is no longer favored and that the Court will now apply more of an original meaning test. This has led legal scholars to speculate that the “once popular Lemon Test is now dead.” So what takes its place? In Kennedy, the Court implemented a new test based on historical practices and understandings. This approach is consistent with the more originalist approach to constitutional interpretation seen in other recent decisions on the Second Amendment and will likely see continued endorsement by the Court’s majority. Scholars have argued that the significance of Kennedy lies not in its treatment of Lemon but instead in its new historical approach to the First Amendment. While some argue that historic understandings uphold “public religious expression as a natural part of human life and culture,” others claim that such an approach will give “no serious attention to the real world impact that prayer and other religious activities have on the rest of the community.” However, the actual impact of Kennedy’s new test and Lemon’s death remains to be seen.
Suggested Citation: Trinity Kipp, The Lemon Test: Its Inception, Application, and Death, Cornell J.L. & Pub. Pol’y, The Issue Spotter (October 10, 2023), https://live-journal-of-law-and-public-policy.pantheonsite.io/the-lemon-test-its-inception-application-and-death/.
Trinity Kipp is a second-year law student at Cornell Law School. She graduated from Thomas Edison State University with a degree in English and Communications. In addition to her involvement with Cornell’s Journal of Law and Public Policy, Trinity serves as the Executive Vice President of Cornell’s Federalist Society.