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L, Lemon Test

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Lemon Test

is a three-pronged test employed by the Supreme Court in deciding *Establishment Clause disputes, such as state aid to parochial schools, public financing of religious displays, and *school prayers and Bible reading. It derives its name from its first use in Chief Justice Warren *Burger’s majority opinion in *Lemon v. Kurtzman (p. 579) (1971). Under the Lemon Test, for a statute not to be a violation of the Establishment Clause, it must meet the following conditions: (1) it must have a secular legislative purpose, (2) its principle or primary effect must be one that neither advances nor inhibits religion, and (3) it must not foster an excessive entanglement with religion. The structure of the Lemon Test has now come under sustained attack by members of the Court. Chief Justice William *Rehnquist has challenged the test’s historical and constitutional validity, most notably in his lengthy dissent in the school prayer case, *Wallace v. Jaffree (1985).

Scholars have differed in their commentary on the Lemon Test. Some have found it inconsistently applied, unprincipled, and too easily manipulated. Others view it as containing dichotomies too sharp (secular/religious, advance/decline of religious interests, excessive/acceptable entanglement) and thus too rigid to do justice to the complex nature of modern church-state relationships. Others find that the test undermines the value of religious autonomy, especially in public settings, as in *Lynch v. Donnelly (1984), a case in which the Supreme Court allowed a crèche to be placed among less sectarian symbols of Christmas in a publicly funded holiday display. They see the Lemon Test when weakly applied as violating Establishment Clause principles by allowing majority religions to impose their beliefs on nonadherents.

Scholars also differ on the importance of the Lemon Test (and tests in general) as a guide to judicial choices. Leonard Levy, a leading critic, views it as merely lending the appearance of objectivity to judicial decisions that are necessarily subjective. Levy argues that there is no evidence that such a test actually guides the Court in reaching a decision that would not have been reached without it. He finds the excessive entanglement strand as carrying the seeds of its own misconstruction, because the term “excessive” is relative, and cannot possibly have a fixed or objectively ascertainable meaning (Levy, 1986, p. 129).

Levy argues further that the test has had little substantial restraining power on the Court. Justices using the same test, Levy posits, often arrive at contradictory results—with Justice John Paul *Stevens and former justices William *Brennan and Thurgood *Marshall tending to find a violation of the Establishment Clause, and justices such as Rehnquist, Byron *White, Burger (and now Antonin *Scalia and Anthony *Kennedy) in most cases not finding a violation on the same facts. Levy argues that only centrist justices, such as former Justices Lewis *Powell, Potter *Stewart, and Harry *Blackmun, actually use the Lemon Test as a guide to their constitutional choices. Justice Sandra Day *O’Connor, while rejecting the Lemon Test, is a swing voter on religion cases.

Levy’s approach to the Lemon Test obscures and undervalues justices’ ongoing engagement with their long-held fundamental values (individual rights) and institutional norms (polity principles), as they decide on the proper relationship of church and state under the *First Amendment. Rather than viewing the Lemon Test as a means to secure pragmatically policy wants, Ronald Kahn argues that all justices, even centrist justices, use the Lemon Test to conduct a highly motivated and highly competitive ideological jurisprudence, employing their own principles to make constitutional choices. In contrast to the Levy approach, Kahn suggests that the Lemon Test adds to the coherence and discipline of Court choices by providing justices with important benchmarks or boundaries under which to determine whether a law or practice has violated the polity and rights principles that they view as central to the religion clauses of the First Amendment.

Scholars and several Supreme Court justices have sought to replace the Lemon Test with a Coercion Test that would emphasize the importance of limiting the government from coercing individuals in their free exercise of religion. Kahn argues that the Coercion Test would rid Establishment Clause doctrine of the third prong of the Lemon Test, which is based on important institutional norms: “that government must not foster an excessive entanglement with religion,” with its implied concern for limiting political dissent over religious questions. However, recent landmark school prayer and voucher cases demonstrate that the Lemon Test is still at the core of Establishment Clause doctrine.

See also religion.

Ronald Kahn, “Polity and Rights Values in Conflict: The Burger Court, Ideological Interests, and the Separation of Church and State,” Studies in American Political Development: An Annual 3 (1989): 279–293. Ronald Kahn, “God Save Us from the Coercion Test: Constitutive Decision-Making, Polity Principles, and Religious Freedom,” Case-Western Reserve Law Review 43 (1993): 983–1020. Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (1986).

Ronald Kahn