Lemon at 50: Has the Supreme Court Soured on Its Bitter Fruits?

Lemon at 50: Has the Supreme Court Soured on Its Bitter Fruits?

By Susan Newhart Elliott, Professor & Director of Zimmerman Law Library | University of Dayton School of Law | selliott1@udayton.edu

This year's University of Dayton School of Law Education Law Symposium – Lemon at 50: Has the Supreme Court Soured on Its Bitter Fruits? – will take place online on Friday, September 24, from 9 a.m. to 4 p.m., in conjunction with the Law School’s Alumni Weekend.

The Symposium focuses on the United States Supreme Court’s landmark 1971 decision in Lemon v. Kurtzman, which produced a three-prong analysis (the “Lemon Test”) for First Amendment Establishment Clause jurisprudence. The Symposium addresses Lemon’s past, present, and uncertain future.

Lemon involved two state programs providing economic supplements for teachers of secular subjects in private schools, the majority of which were Roman Catholic. Challengers claimed that the programs violated the First Amendment’s Establishment Clause by providing governmental support and benefit to establishments of religion.

The first two clauses of the First Amendment to the United States Constitution provide:

Congress shall make no law respecting an establishment of religion, or prohibit ing the free exercise thereof ….

The language of the Establishment Clause is somewhat opaque. It does not simply prevent the government from establishing a state religion; its reach extends to laws “respecting an establishment of religion.” It may be broadly said to prevent the government from compelling, directing, or becoming actively involved in religious conduct, as the Free Exercise clause may be said to prevent the government from prohibiting or burdening religious conduct.

The Lemon Court’s opinion noted the challenges of “this extraordinarily sensitive area of constitutional law,”2 and articulated a structure for analysis drawn from existing Establishment Clause jurisprudence: (1) whether the law at issue had a secular legislative purpose; (2) whether the principal or primary effect was to advance or inhibit religion; and (3) whether the law “foster[ed] an excessive government entanglement with religion.”3

The Court concluded that the state programs had a secular purpose (enhancing the quality of secular education in all schools) and that neither was intended to advance religion.4 However, the Court further concluded that the extent of governmental supervision, management, and direction necessary to ensure that the economic support was effectively limited to secular conduct would result in “excessive entanglement between government and religion,”5 in violation of the Establishment Clause.

Lemon has been subject to criticism through the past 50 years. In 2019, the Supreme Court decided American Legion v. American Humanist Association, 6 an Establishment Clause case challenging state acquisition and maintenance of a 32-foot cross that was a long-standing World War I monument. Both lower courts employed the Lemon Test, with different results. The district court found that governmental maintenance of the cross was permissible, but the Fourth Circuit Court of Appeals concluded that state maintenance of the Cross failed the Lemon Test’s primary effect and excessive entanglement prongs, reflecting endorsement of a “hallmark symbol of Christianity.”7

The Supreme Court reversed. In an opinion by Justice Alito, the Court declined to employ the Lemon test, devoting several pages to criticism of Lemon and especially of its application in cases relating to longstanding monuments. Using a historically oriented analysis, without articulation of a specific test, the Court concluded that governmental support and maintenance did not violate the Establishment Clause in view of the history and context of the cross.8

Justices Kavanaugh, Thomas, and Gorsuch wrote separate concurrences, all suggesting that the Lemon Test should no longer apply in any context.9 Justice Kagan concurred in part but argued that the Lemon Test’s focus on purposes and effects had continuing value.10 Justice Ginsberg dissented, joined by Justice Sotomayor,11 without specific consideration of Lemon, although the discussion might be read to embrace the primary effect and entanglement prongs of the Lemon Test.

ENDNOTES:

1403 U.S. 602 (1971) 2Lemon v. Kurtzman, 403 U.S. at 612. 3Id. at 612-613. 4Id. 5Id. at 613-614. 6139 S. Ct. 2067 (2019) 7Am. Humanist Ass’n v Md. Nat’l Capital Park & Planning Comm’n, 874 F.3d 195, 200 (4th Cir. 2017). 8Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. at 2090. 9Id. at 2092, 2095. 2101. 10Id. at 2094. 11Id. at 2103.

In July of this year, the Supreme Court granted certiorari in Carson v. Makin, involving challenges to a Maine program providing payment of school tuition, in districts where no public school has been established, at the parents’ choice of out-of-district public schools or “approved” private schools.12 To be approved, a private school must be deemed “nonsectarian … in accordance with the First Amendment of the Constitution.”13

The challenge has been brought by parents who wish to use the programs to send the their children to religious schools that have not been approved under this requirement. They contend that two recent Supreme Court decisions, Trinity Lutheran Church of Columbia v. Corner14 and Espinoza v. Montana Dept. of Revenue, 15 have so radically changed the landscape of First Amendment jurisprudence in religionrelated cases that the Court must reverse the lower courts’ judgements that the “non-sectarian” requirement is permissible.

Lemon has not yet been overruled. No test has been articulated by the Court to take its place. (There have been suggestions that Establishment Clause doctrine should be recrafted in the context of the Free Exercise Clause, tethering the two together,16 or that the Court should replace the Lemon Test with analysis based on the Founders’ understanding of the elements of an “establishment of religion.”17) However Lemon faces a very uncertain future, especially in view of the recent developments. Linda Greenhouse (the keynote speaker for the 2021 Dayton Bench and Bar Conference in November) has noted that the Supreme Court’s 2020-2021 decisions evidence a new majority that has been ever more deferential to religion.18

The University of Dayton’s Lemon at 50 Education Law Symposium will address the past, present, and future of Lemon in Establishment Clause jurisprudence, including Lemon’s international legacy. The online format has provided opportunities for participation by an exceptional array of scholars and practitioners, including keynote speaker Professor Amanda Harmon Cooley (South Texas College of Law), Professor Paul Bable (Research Unit for the Study of Society, Ethics and Law, University of Adelaide), Professor Carlos Bernal (University of Dayton School of Law and past justice of the Constitutional Court of Colombia), and Edwin Darden (Bill and Melinda Gates Foundation). View more details at https://udayton.edu/law/ events/index.php

ENDNOTES:

12979 F.3d 21 (2020). 13Id. at 25. 14137 S. Ct. 2012 (2017) 15140 S. Ct. 2246 (2020) 16See Leading Cases: American Legion v. American Humanist Ass;n, 133

Harv. L.R. 262 (2019). 17See Michael McConnell, Cleaning Up the Lemon Mess, The Volokh

Conspiracy (Feb. 28, 2019), https://reason.com/volokh/2019/02/28. 18https://www.nytimes.com/2021/07/01/opinion/supreme-court-religion.html