The Lemon Approach
Today we encounter the Supreme Court’s infamous and now discarded “Lemon test.” The three-part test, announced in one of the cases we’ll read today, required 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 test reflected several concerns that run throughout our course: preventing government from using religion for public purposes, protecting religious institutions from state supervision, preserving equality among religious traditions, and maintaining a sphere of conscience beyond political control. At least in theory, the Lemon test offered a unified framework for cases involving public funding, religious schools, symbolic endorsement, and church-state entanglement.
But the Lemon test also exposed the difficulty of reducing the Establishment Clause to a single formula. Its three prongs were often indeterminate: how secular must a purpose be, what counts as advancing religion, and when does interaction become excessive entanglement? The Court sometimes applied Lemon strictly, especially in public-school and funding cases, but sometimes avoided it, modified it, or supplemented it with other approaches. Justice O’Connor’s endorsement test asked whether a reasonable observer would perceive government endorsement of religion. Other cases emphasized coercion, neutrality, private choice, historical practice, or equal treatment of religious and secular actors. By the time we reach cases involving legislative prayer, religious monuments, school funding, and public-employee religious expression, Lemon is less a stable test than a sign of the Court’s broader struggle to define what “establishment” means.
We’ll see later that the Court disavows Lemon and the endorsement test in Kennedy v. Bremerton School District. In their place, the Court pointed to “historical practices and understandings,” while also emphasizing coercion as one important marker of an establishment. But this turn does not eliminate the old questions. History and tradition may help explain why legislative prayer or longstanding monuments are permissible, but they are less obviously helpful for new disputes involving public schools, government funding, charter schools, parental opt-outs, or state-mandated religious displays. Lemon’s demise does not end Establishment Clause uncertainty.
Lemon v. Kurtzman, 403 U.S. 602 (1971)
Committee for Public Education v. Nyquist, 413 U.S. 756 (1973)