The Supreme Court for nearly four decades used the three-pronged Lemon test to evaluate whether a law or governmental activity violated the establishment clause of the First Amendment. However, by 2022, the court had largely abandoned the test as a way to measure compliance with the First Amendment’s prohibition on government “establishment of religion.”
In 2022 in Kennedy v. Bremerton, a case involving a high school football coach’s group post-game prayers, the authoring Supreme Court justice, Justice Neil Gorsuch, ruled instead that the establishment clause “must be interpreted by ‘reference to historical practices and understandings.’ ” Gorsuch believed that the lower courts had created a “vice between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other.” He associated such conflict with the three-part Lemon test.
Cases that challenge whether a law or practice violates the clause in the First Amendment prohibiting the “establishment of religion” often involve direct government aid to religion, such as aid to parochial schools, or the introduction of religious observances into the public sector, such as school prayer.
Lemon test comes from Lemon v. Kurtzman
The Lemon test came about in 1971 as a way to measure when a law went too far in the Supreme Court’s landmark decision in Lemon v. Kurtzman (1971). Lemon represented the refinement of a test the Supreme Court announced in Walz v. Tax Commission (1970). Writing for the majority in Walz, Chief Justice Warren E. Burger took the traditional purpose and effect test the court had been using since Everson v. Board of Education (1947) and added the excessive government entanglement prong to the test. Under these guidelines, the court would examine the proposed aid to the religious entity and ensure that it had a clear secular purpose. The court also would determine if the primary effect of the aid would advance or inhibit religion. For the third prong, added in the Walz case, the court would examine whether the aid would create an excessive governmental entanglement with religion.
Burger attempted to clarify ‘excessive governmental entanglement’
In Lemon v. Kurtzman, Burger, again writing for the unanimous court, attempted to clarify some of the confusion regarding the meaning of the excessive governmental entanglement prong of the test. To determine whether the program created an impermissible entanglement between religion and government, there were three factors the court had to weigh.
The court would look at the character and purpose of the institution that benefited, the nature of the aid the state was providing, and the resulting relationship between the government and the religious institution. If the program failed any single part of the test, it would render the aid an unconstitutional violation of the establishment clause.
The court expressed concern regarding the question of political division. According to Burger, the “potential for political divisiveness” of religious programs was “a principal evil” the First Amendment was designed to prevent.
In applying the test to various programs under review, the court generally conceded the first prong, refusing to second guess the legislature’s purpose. Only a handful of programs fail to meet the “effect” part of the test. The key provision of the test normally was the excessive governmental entanglement prong.
Appplication of the test is inconsistent
If, as is believed, Burger intended this to be a relatively accommodationist test, he would be disappointed. For about two decades, the test generally was used by the court to erect a wall of separation between church and state.
Ultimately, excessive entanglement is in the eye of the beholder. Justices who favor separation could use the test to find a violation of the establishment clause, whereas supporters of accommodation could use the same test to uphold the practice or program in question. Indeed, critics of the court’s jurisprudence have argued that application exhibited a great deal of inconsistency, which filters to the legislatures that pass such programs and the lower courts that have to evaluate them.
Lemon test has faced criticism
Both justices and legal analysts attacked the Lemon test. And as the court became more conservative, the move to accommodation gained momentum. In Lee v. Weisman (1992), the Supreme Court considered whether a nondenominational prayer could be offered at a high school graduation ceremony. Chief Justice William H. Rehnquist argued for a non-preferentialism test, Justice Sandra Day O’Connor advocated a religious endorsement test, and Justice Antonin Scalia continued to advance a noncoercive test. However, Justice Anthony M. Kennedy, who wrote the opinion in Lee, joined those who supported the preservation of the Lemon test. At the time, many analysts had predicted the demise of Lemon.
In the 1993 decision Lamb’s Chapel v. Center Moriches Union Free School District, Scalia famously observed that “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.” In Agostini v. Felton (1997), the court modified the Lemon test by folding the entanglement prong into the primary effects prong.
The repeated criticisms, modifications, and failure to apply the Lemon test in some establishment cases, in addition to other tests used by the justices in the establishment clause area, largely undermined its effectiveness.
In upholding the right of the Bremerton football coach to offer after-game prayers at mid-field in Kennedy v. Bremerton School District (2022), Gorsuch (whose opinion was joined by five other justices) argued that the court had long abandoned the Lemon test, which he criticized as being too abstract and ahistorical, for an approach that emphasized “reference to historical practices and understandings.” Three dissenting justices, led by Justice Sotomayor, believed that the three-part Lemon test was still useful.
This article was originally written in 2009. Richard L. Pacelle, Jr. is professor and department head in Political Science at the University of Tennessee. Pacelle’s primary research focus is the Supreme Court. His research includes concerns with policy evolution particularly regarding the First Amendment and the role of policy entrepreneurs in the judiciary, Supreme Court agenda building and decision-making, and inter-branch relations.