LEMON TEST

theLemon test is the three-part formula used by the Supreme Court to decide whether or not a government action violates the establishment clause. The first part requires that the government action have a secular purpose; the second part demands that the action neither advance nor inhibit religion as its primary effect; and the final part dictates that the act not cause an excessive entanglement between church and state. The test was first announced in lemon v. kurtzman (1971), though its major components date back, at least, to the majority opinion in abington township school district v. schempp (1963).

The test's first prong remained noncontroversial throughout most of the 1970s, with the Court invariably finding a secular purpose for statutes under review. Then came the Court's decision in Stone v. Graham (1979), which struck down a Kentucky law requiring the posting of the Ten Commandments in public classrooms. Kentucky claimed that the purpose of the posting was to inform students of the influence of the Ten Commandments on secular history—and, in fact, the Commandments were to be accompanied by a message pointing out their influence on the development of Western law. But the Court found this "avowed" secular purpose insufficient and claimed that the state's actual purpose was to promote religion. This distinction between "actual" and "avowed" secular purposes was adopted by Justice sandra day o'connor in her restatement of the Lemon test in lynch v. donnelly (1984), and the distinction became increasingly important thereafter. In wallace v. jaffree (1984) the Court struck down a law providing for a schoolroom moment of silence because the legislators' actual motive was to promote religion; and in Edwards v. Aguillard (1987) the Court invalidated for the same reason Louisiana's Balanced Treatment Act, which claimed to promote academic freedom in the discussion of creationism.

The actual-purpose approach has drawn serious criticism; the most sustained critique of the approach was delivered by Justice antonin scalia in his dissent in Aguillard. If religious motivation by itself invalidates a piece of legislation, wrote Scalia, then a great deal of legislation indeed may have to be invalidated: "Today's religious activism may give us the Balanced Treatment Act, but yesterday's resulted in the abolition of slavery, and tomorrow's may bring relief for famine victims." Moreover, if the Court really wants to strike down legislation on the basis of motivations, it had better go about it in a more thorough manner. Scalia suggested that to ascertain the dominant motivation behind a bill reliably, one would need to tally the views of every legislator. Scalia's criticism may have had an effect, for Justice O'Connor took a step back from the actual-purpose standard in her majority opinion in westside community schools v. mergens (1990).

But the first prong of Lemon is not the only part of the test to spark debate in recent years; controversy has also erupted over its second prong—spurred in part by the Court's maze of contradictory decisions involving government aid to religious institutions. Seeking greater clarity in the application of the second prong, Justice O'Connor has convinced a majority of her colleagues to reformulate it. The inquiry under the second prong has shifted from determining the primary effect of a government act to ascertaining whether the government action has "in fact conveyed a message of endorsement or disapproval" of religion. Under this new inquiry, an act may (or may not) violate the establishment clause, regardless of whether it advances or inhibits religion as a primary effect; the crucial factor is the public message conveyed by the act.

justice anthony m. kennedy has been the Court's most vocal critic of O'Connor's endorsement inquiry, and in county of allegheny v. american civil liberties union (1989) he offered his own reformulation of Lemon's second prong in response. Kennedy's reformulation prohibits two types of government action: direct government benefits that tend to establish a state religion, and government coercion to engage in religious activity. Kennedy's opinion was joined by Chief Justice william h. rehnquist and Justices Antonin Scalia and byron r. white. All four Justices have indicated a dislike for the Lemon test, and Kennedy may be laying the groundwork to replace it altogether.

John G. West, Jr.
(1992)

(see also: Religious Fundamentalism; Separation of Church and State.)

Bibliography

Levy, Leonard W. 1986 The Establishment Clause: Religion and the First Amendment. Chapter 6. New York: Macmillan.

Theuer, Jeffrey S. 1988 The Lemon Test and Subjective Intent in Establisment Clause Analysis: The Case for Abandoning the Purpose Prong. Kentucky Law Journal 76:1061–1075.