Thirtyfive Years of Lemon Influence: Assessing Decisions, Impact and Implications

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Thirty-five Years of Lemon Influence Assessing
Decisions, Impact and Implications
American Educational Research Association 2008
Annual Meeting
Robert L. MarshallProfessor of Educational
LeadershipWestern Illinois University
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The Landmark Case

• Lemon v. Kurtzman (403 U.S. 602, 1971), has
  become one of the most significant public school
  religion decisions ruled upon by the United
  States Supreme Court in history.

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Lemon test.

• The Lemon test directs the courts to find that a
  statute, policy or practice does not violate the
  Establishment Clause of the first amendment only
  if
• 1. It has secular purpose.
• 2. It neither advances nor inhibits religion.
• 3. It does not foster an excessive entanglement
  with religion.

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Recent Decision Expands Limits

• U.S. Supreme court has expanded the limits of the
  Lemon test and more broadly accepted the
  constitutionality of some policies and practices
  that were considered inappropriate in previous
  times. One such example is the ruling in Mitchell
  v. Helms (530 U.S. 793, 2000) that approved the
  practices of public school teachers providing
  services to parochial school students along with
  funding for computers.

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Applications of the Lemon test

• Creation-science
• School prayer
• Religious symbols and clothing
• Religious student organizations
• Religious exemptions for students
• Financial assistance to parochial schools by the
  states
• Religion in the classroom
• Religion in music programs
• Religious literature distribution
• Observance of religious holidays
• Pledge of allegiance
• Religious exemptions for parent
• Use of school facilities by religious groups
• Religious material in school libraries
• Distribution of religious material in schools
• Display of the Ten Commandments

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Criticisms

• Although the test initially provided helpful
  assistance, e.g., Tilton v. Richardson, (403 U.S.
  672, 1971), we soon began describing the test as
  only a "guideline," Committee for Public
  Education Religious Liberty v. Nyquist, supra,
  and lately we have described it as "no more than
  a useful signpost."
• Chief Justice Rehnquist in Wallace v. Jaffree

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Criticisms

• Lemon's "three-part test represents a determined
  effort to craft a workable rule from a
  historically faulty doctrine but the rule can
  only be as sound as the doctrine it attempts to
  service
• Lemon has had a checkered career in the
  decisional law of this Court
• Chief Justice Rehnquist in Santa Fe v. Doe

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Criticism

• the entire enterprise of trying to justify
  various types of subsidies to nonpublic schools
  should be abandoned. Rather than continuing with
  the sisyphean task of trying to patch together
  the "blurred, indistinct, and variable barrier"
  described in Lemon v. Kurtzman, (403 U.S. 602,
  1971),
• Justice Stevens in Committee for Public Ed. and
  Religious Liberty v. Regan (444 U.S. 646, 1980),

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Concurring Opinion

• Our prior cases have used the three-part test
  articulated in Lemon v. Kurtzman, 403 U.S. 602,
  612-613, (1971), as a guide to detecting these
  two forms of unconstitutional government action.
  It has never been entirely clear, however, how
  the three parts of the test relate to the
  principles enshrined in the Establishment Clause.
  Focusing on institutional entanglement and on
  endorsement or disapproval of religion clarifies
  the Lemon test as an analytical device.

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Concurring Opinion

• The purpose prong of the Lemon test asks whether
  government's actual purpose is to endorse or
  disapprove of religion. The effect prong asks
  whether, irrespective of government's actual
  purpose, the practice under review in fact
  conveys a message of endorsement or disapproval.
  An affirmative answer to either question should
  render the challenged practice invalid.
• Justice OConnor in Lynch v. Donnelly (465 U.S.
  668, 1984)

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Concurring/Dissenting

• The secret of the Lemon test's survival, I think,
  is that it is so easy to kill. It is there to
  scare us (and our audience) when we wish it to do
  so, but we can command it to return to the tomb
  at will.
• Justice Scalia in Lynch

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More Scalia

• As to the Court's invocation of the Lemon test
  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,

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More Scalia

• For my part, I agree with the long list of
  constitutional scholars who have criticized Lemon
  and bemoaned the strange Establishment Clause
  geometry of crooked lines and wavering shapes its
  intermittent use has produced

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the sisyphean task

• "the sisyphean task of trying to patch together
  the blurred, indistinct, and variable barrier
  described in Lemon "). We have even gone so far
  as to state that it has never been binding on us.
  Lynch v. Donnelly, 465 U.S. (668, 679, 1984)

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Conclusion

• significant challenges arise when the three-prong
  test is applied to established traditional values
  predicated by the engrained religious heritage of
  the United States coupled with the diversity of
  religion and social mores across the nation. Even
  with criticism and challenges along the way, the
  Lemon test has remained the litmus test
  influencing public school law challenges for over
  35 years.

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Recommendations for School Leaders

• Kemmer, Walsh and Maniotis (2005) refer to a set
  of six guidelines developed by a coalition of
  seventeen religious and educational organizations
  about religion in public schools. The following
  list guidelines are suggested for public schools
  at the present time
• The schools approach to religion must be
  academic, not devotional.
• The school may strive for student awareness of
  religion but should not pass for student
  acceptance of any on religion.
• The school may sponsor study about religion but
  may not sponsor the practice of religion
• The school may expose students to a diversity of
  religious views but may not impose any particular
  view.
• The school may educate about all religions but
  may not promote or denigrate any religion.
• The school may inform the student about various
  beliefs but should not seek to confine him or her
  to any particular belief.