Lemon Test

The Lemon Test is part of a very unstable and hotly debated area of constitutional law: whether government aid to religion in the form of grants to or partnership with religious schools violates the constitutional prohibition against establishing religion. In 1971, the Lemon Test was the final word on the subject, but as the political debate about the separation of church and state grew more contentious in the 1980s and 1990s, other tests, such as the Endorsement test and the Coercion test, have been proposed, and there remains no firm resolution of the issue.

Originating in the 1971 case Lemon v. Kurtzman, 403 U.S. 602 (1971), this test is meant to determine whether government subsidies to religious organizations violate the Establishment Clause of the First Amendment. The Establishment Clause states that ‘‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’’ As explained in the 1947 case Everson v. Bd. of Ed., 330 U.S. 1 (1947), this clause means at least four things: (1) that neither the state nor federal government can set up an official church, (2) that a person cannot be forced either to practice or not to practice religion, (3) that government cannot give aid to religion, and (4) that government cannot participate in the affairs of religion. In Everson, a New Jersey law allowed a subsidy to religious schools for student bus transportation. The Court held that the subsidies did not violate the Constitution because they were intended for a secular aspect of the schools’ mission— student transportation. Thus, the holding distinguished between secular and sacred activities by the schools; where the subsidies were only used for secular purposes that were ‘‘indisputably marked off from the (schools’) religious function,’’ they were constitutionally permissible.

Following Everson, it was permissible for the government to subsidize a religious organization, but only after determining that the aid served a secular, not religious end. Lemon v. Kurtzman revolves around this problem of whether government subsidies to religious organizations aid a secular or sacred purpose. Lemon involved Rhode Island and Pennsylvania subsidies to private religious school teachers for teaching secular subjects. In contrast to the result in Everson, the Court held that these subsidies were unconstitutional. Although the teachers testified that they did not inject religion into their secular classes, Justice Burger wrote that the only way to prove they did not would be for government to carefully audit and supervise the curricula. This level of government involvement in religious school curricula would amount to excessive entanglement between church and state.

The Lemon test requires any government subsidy to a religious organization to meet three tests: (1) it must have a good faith secular purpose, (2) it must not have the principle effect of aiding or inhibiting religion, and (3) it must not create an excessive entanglement between government and religion. The test does not invalidate a subsidy for having a religious purpose, as long as it has a bona fide secular purpose as well. Neither does it invalidate a subsidy that aids religion, so long as that is not its principal effect. In this sense, it concedes to the accommodationist view that the ‘‘wall of separation’’ is permeable.

The Court had several opportunities to apply the Lemon test again in the 1980s. Several of these decisions involved the government’s display of religious symbols. In Lynch v. Donnelly, 465 U.S. 668 (1984), the Court considered a creche in Pawtucket, Rhode Island’s, annual Christmas display. The Court found that the creche did not run afoul of the Establishment Clause because, taken in context of a holiday display that also included secular images of Christmas, it did not have the principal effect of advancing religion. This decision also introduced the Endorsement test, which has existed as a parallel to the Lemon Test ever since. However, in County of Allegheny v. ACLU, 492 U.S. 573 (1989), the Court found that a creche erected all by itself in a prominent location on the steps of a downtown courthouse did violate the Establishment Clause. The Allegheny creche’s prominence and the fact that its religious message was undiluted by the presence of secular images of Christmas meant that it had the principal effect of advancing Christianity, in violation of the Lemon Test. Justices Rehnquist, Scalia, Kennedy, and White believed the majority’s application of the Lemon Test unjustifiably hostile to religion. In another case, Bowen v. Kendrick, 487 U.S. 589 (1988), the Court held that the ‘‘Chastity Act,’’ which provided government funds to religiously affiliated non-profits to teach abstinence and adoption as alternatives to abortion, was not unconstitutional because it met the three prongs of the Lemon Test.

Evangelical Christians interpret the result of Lemon and the associated school prayer and religious display cases as discrimination against religion. In response to this concern, President George W. Bush pushed with some success for a variety of legislation that would seem to fly in its face. This includes school vouchers that can be used to pay for private religious schools and ‘‘Charitable Choice,’’ an effort to end the ‘‘discrimination’’ against religious non-profits in receiving federal grants.

CHRISTOPHER D. KING

Cases and Statutes Cited

• Bowen v. Kendrick, 487 U.S. 589 (1988)
• Capital Square Review Board v. Pinette, 515 U.S. 753 (1995)
• County of Allegheny v. ACLU, 492 U.S. 573 (1989)
• Everson v. Bd.of Ed., 330 U.S. 1 (1947)
• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• Lynch v. Donnelly, 465 U.S. 668 (1984)
• McCreary v. ACLU of Kentucky Van Orden v. Perry

See also Legislative Prayer; Public School Curricula and Free Exercise Claims; Religious Symbols on Public Property; Secular Purpose; School Vouchers; State Aid to Religious Schools; Teacher Speech in Public Schools; Teaching Evolution in Public Schools