Rethinking American Establishment Jurisprudence

Eric Wang

Many Americans gleam over Uncle Sam’s “wall of separation” between church and state. That this wall should be thick and tall perhaps became even more evident after President Trump posed weeks ago with a Bible minutes after having the National Guard use tear gas to expel peaceful protestors for his photo-op. Reverends and representatives alike expressed outrage, condemning Trump for using Scripture as a political prop.

Fortunately, America’s First Amendment declares that “Congress shall make no law respecting an establishment of religion.” Yet, though we cherish these wise words, they are far from clear. To determine whether the state has respected an establishment of religion, the Supreme Court has employed a multitude of approaches, from the “endorsement” and “strict neutrality” tests, to most (in)famously, the three-pronged Lemon test.1John Witte & Joel A. Nichols, Religion and the American Constitutional Experiment, 158 (Oxford University Press 2016) (1999).

First articulated in Walz v. Tax Commission (1970) and Lemon v. Kurtzman (1971), the Lemon test stipulates that for state aid to religion (e.g. tax exemptions, monetary support) to not violate the Establishment Clause, the aid must (1) have a secular purpose; (2) have a primary effect that neither advances nor prohibits religion; and (3) foster no excessive entanglement between church and state. Later, the Court in Agostini v. Felton (1997) presented a two-pronged version of Lemon that examined (1) “whether the government acted with the purpose of advancing or prohibiting religion” and (2) “whether the [government] aid has the effect of advancing or inhibiting religion.”

For decades, numerous Supreme Court justices have criticized the Lemon test. In 1993, Justice Scalia famously called Lemon a “ghoul in a late-night horror movie” that stalks establishment jurisprudence. In Van Orden v. Perry (2005), Justices Rehnquist, Scalia, Kennedy, and Thomas similarly found the Lemon test unhelpful. Most recently, in American Legion v. American Humanist Association (2019), Justice Alito remarked that the Court has “either expressly declined to apply the test or . . . simply ignored it,” and Justice Thomas stated he would “overrule the Lemon test in all contexts.”

Instead of using Lemon’s second prong (and Lemon altogether), the Court should focus on whether state aid to religious entities constitutes coercion or unequal treatment…

Yet, the Lemon test and “Lemony logic” still persist. Lacking clear doctrinal replacements, lower federal courts have still resorted to Lemon or its Agostini modifications.2Id. at 171. In American Legion, Justice Kagan wrote that the Lemon “test’s focus on purposes and effects is crucial in evaluating government action” in establishment cases. In fact, 37 state constitutions (though not because of Lemon) still have Lemon-esque “Blaine Amendments” that prohibit state funding for “sectarian schools.”  

Because of this reality, I join with other justices to further challenge the Lemon test, specifically its second prong — the core prong that Agostini and Justice Kagan hope to retain. The second prong’s prohibition of government actions that “advance” religion not only contributes to the Court itself defining religion, but also unnecessarily restricts state aid to religious entities that can help society flourish. Instead of using Lemon’s second prong (and Lemon altogether), the Court should focus on whether state aid to religious entities constitutes coercion or unequal treatment: if existent, these two aspects — not mere state support for religious groups — make state aid to religious groups problematic.

Bifurcating and Defining Religion

Combined with Agostini, Lemon’s second prong proscribes government aid that has the purpose or primary effect of advancing religion. Inheriting doctrine from Bradfield v. Roberts (1899), Everson v. Board of Education (1947), and Board of Education v. Allen (1968), “accommodationist” courts have interpreted this prong to still allow for the state to aid religious schools, but only their “secular” dimensions. For example, in Tilton v. Richardson (1971), the Court decided that the Higher Education Facilities Act (1963), which funded construction at four church-related colleges, did not advance religion because the Act ensured that its subsidized facilities “would be devoted to the secular, and not the religious, function of the recipient institutions.” Similarly, in Hunt v. McNair (1973), the Court decided that South Carolina’s Educational Facilities Authority Act, which funded projects at universities including a Baptist-controlled college, did not advance religion because the projects were too “confined to a secular purpose.”

Relative to courts that read Lemon more strictly, accommodationist courts open more doors for religious schools to receive aid. Nonetheless, the accommodationist requirement that state aid only fund a school’s “secular” components is profoundly mistaken. In deciding whether state aid funded the “secular” purposes of religious schools, the Court (1) already assumes a line between the secular and spiritual, and (2) decides where that line is, thereby defining what constitutes “secular” and what constitutes “religious” or “spiritual.” Yet, the problem here is that some religious groups may not have the same secular-sacred boundaries as the Court, or, may reject secular-sacred distinctions altogether. As Calvinist theologian Abraham Kuyer famously declared, “there is not a square inch of the whole domain of our human existence over which Christ, who is Sovereign over all, does not cry, Mine!” As Lutheran pastor Wolfhart Pannenberg once wrote, “the very idea of the one God implies that all finite reality depends on him.”3See Wolfhart Pannenberg, An Introduction to Systematic Theology, 10 (1991).

When the Court denies state aid for religious schools because it deems that such aid did not solely fund the school’s “secular” components, the Court imposes a bifurcated definition of religion — the Court’s own definition — upon faith communities that may have different bifurcations or none at all. If one of the Establishment Clause’s concerns is to prevent the state from defining religion, then, ironically, accommodationist readings of Lemon’s second prong violate the very clause Lemon sought to uphold.

Sadly, the Court began catching glimpses of this irony, but used it to place government aid programs and their recipients in impossible binds. For example, in Aguilar v. Felton (1985), the Court struck down funding for religious schools, because the very act of determining that state-funded religious school teachers “were not conveying religious messages” would require “comprehensive . . . state surveillance” that constituted “excessive entanglement” between church and state. In other words, to ensure that its aid only funded a school’s “secular” purposes, the state would need to become excessively entangled with religion. To ensure that Lemon’s second prong was satisfied, the state would need to violate Lemon’s third prong. In sum, Aguilar’s reading of Lemon’s last two prongs created a Catch-22 that nearly made Lemon logically impossible to fulfill.4This dilemma could not be more patent than when the Aguilar Court explicitly wrote: “As in Lemon, we observed that, though a comprehensive system of supervision might conceivably prevent teachers from having the primary effect of advancing religion, such a system would inevitably lead to an unconstitutional administrative entanglement between church and state.” Aguilar v. Fenton, 473 U.S. 402, 410 (1985). Justice Rehnquist took notice of the Catch-22, and saw it as existing in the fulfillment of the third prong itself (versus my interpretation of a dilemma between the second and third prong). As Rehnquist wrote, “the Court takes advantage of the ‘Catch 22’ paradox…whereby aid must be supervised to ensure no entanglement, but the supervision itself is held to cause an entanglement.” See id. at 421.

Peaceful religions — sources of the knowledge of good and willingness to do good — can help people do right and avoid wrong, even when law enforcement’s cost-benefit structures do not sufficiently incentivize good and deter evil.

Thus, (an accommodationist rendition of) Lemon’s second prong causes the Lemon test to both contravene itself and the very constitutional clause it claims to uphold. This double contravention already casts serious doubt on the value of Lemon’s second prong and the Lemon test altogether.

Yet, the reasons to scrap Lemon do not stop there. Whereas accommodationist courts emphasized the divide between secular and sacred, “separationists courts” attended to how intertwined the two domains were within religious schools, and on this basis further constricted state aid to avoid advancing religion (e.g., Levitt v. Comm. for Pub. Educ. & Religious Liberty (1973) and New York v. Cathedral Academy (1977)). I agree with separationists that it is difficult — if not, often impossible — to demarcate the “secular” components of a religion or religious entity. Yet, against separationists, I argue that even if government aid were to “advance” religion — i.e. fund “non-secular” purposes as often understood — such aid would be not only permissible, but also beneficial for society. It would be good if the state were to fund not only algebra workbooks and gym equipment, but also (with impartiality) Quran copies or salaries for Jewish rabbis.

Religion, Flourishing, and Pluralism

The Lemon test’s second prong prohibits state aid that has a primary effect that advances religion. But why is it wrong for state aid to “advance” religion? Specifically, why is it wrong for the state to financially aid religious schools not only with their “secular” items (e.g. science textbooks) but also their “sectarian” or “religious” endeavors (e.g. Scripture reading)?  The first reason one might give is that when the state sponsors religious activity, it forces taxpayers to pay for religious activities with which they disagree. Yet, the state coerces its subjects to pay taxes for endeavors with which they disagree all the time — e.g., the Iraq War, “Obamacare,” President Trump’s paycheck, etc. The mere fact that one disagrees with where tax money goes, is not in itself a sufficient warrant for the person to not be forced to pay the tax. If it is already permissible and obligatory for citizens to be coerced to pay for activities with which they disagree, why should the fact that the activity is religious in nature make a difference?

Some might reply that, as Justice O’Connor and Souter respectively emphasized in their “direct endorsement” and “strictly neutrality” jurisprudence, government aid for religion inherently indicates lesser preference for those who are non-religious.5Witte and Nichols, Religion and the American Constitutional Experiment, 166, 168. Moreover, state funding for religious activity — unlike funding for “secular” activities — does not benefit all of society, but instead, only benefits practitioners of the state-funded religion.

Both responses are flawed. The first response not only can challenge state funding for any non-religious activity too, but also, is logically unsound. If the state funds Activity A, such support does not by itself constitute lesser preference for Activities B and C. B and C may not have applied for funding, or if they did, were denied it for reasons other than their religion or lack thereof. If funding A immanently constitutes bias against B and C, and such bias is legitimate grounds for nullifying funding for A, then the state might as well not fund anything.  The second response is also deeply mistaken. It ignores not only countless instances of state spending that do not directly benefit all of society, but also the ways in which religion does vitally benefit society as a whole. As Massachusetts Chief Justice Theophilus Parsons explained in 1810, laws alone cannot oblige people to perform “duties of charity and hospitality” or eschew “secret offenses” beyond the scope of legal enforcement.6Barnes v. First Parish, 6 Mass. (1810)., qtd. in Michael W McConnell, “Establishment at the Founding,” in No Establishment of Religion: America’s Original Contribution to Religious Liberty, ed. T. Jeremy Gunn and John Witte, Jr. (Oxford University Press, 2012), 17. As Martin Luther King wrote in 1967, “true [racial] integration will be achieved by men who are willingly obedient to unenforceable obligations.”7Martin Luther King, Where Do We Go from Here: Chaos or Community?, ed. Vincent Harding, 2010, 100–101. Peaceful religions — sources of the knowledge of good and willingness to do good — can help people do right and avoid wrong, even when law enforcement’s cost-benefit structures do not sufficiently incentivize good and deter evil.

As Luther and Madison exclaimed, it is wrong to coerce faith: inner faith neither can, nor should be, truly compelled by sword.

Moreover, one  might reasonably argue that a society needs religion to maintain obedience to the law in the first place; to persistently obey the law one must perceive it to be morally legitimate, and to coherently declare something to be morally legitimate, one needs to pre-suppose a foundational bedrock of morality — i.e. God.8See Richard John Neuhaus, The Naked Public Square: Religion and Democracy in America, 2. ed., reprint (Grand Rapids, Mich: Eerdmans, 1997), 80. Also, see Chapters 15 and 16 of Nicholas Wolterstorff, Justice: Rights and Wrongs (Princeton: Princeton University Press, 2008). As Richard John Neuhaus explains, this is why governments often try fostering civic religion. Yet, the tendency of states to generate civic or “ersatz” religion to legitimate their laws, further highlights the importance of sectarian, non-civic religions. These religions provide sources of morality alternative to the state’s own, and thus give citizens independent moral compasses to identify, challenge, and check the state’s wrongdoing. Because religions can help a polity’s subjects perform legally unenforceable obligations and check the state’s missteps, the activities of (peaceful) religions can help all of society flourish. The conviction that the state should only fund activity that benefits all of society, far from being a reason for prohibiting state aid for religion, is a foremost reason for supporting it.   

Still, others might oppose state funds for religious entities because they find it wrong to use funds obtained by coercion to support proselytization. The logic here challenges such funding not simply because some taxpayers disagree with proselytization, but rather, because of the notion that one should not use violence to persuade conversion. As Martin Luther wrote, faith is a “free act,” a “work of God in the spirit” that no “authority should compel.” As James Madison declared, religion is one’s “duty towards the Creator” that neither can nor should be alienated.

Certainly, I agree: neither state nor citizen should force anyone to believe, practice, or disbelieve a religion. Yet, coercing faith or apostasy is different from using funds collected by force to aid religious groups. Whether to proselytize or to worship, religious groups already rely on public goods funded by taxes collected by force: public roads, public safety, etc. Most find such reliance permissible, even though the public goods are secured by sword: why then is it wrong for religious entities to rely on state financial aid, another public good secured by force?

One might reply that there is a difference between 1) the state funding public goods that can be relied upon for evangelistic activity and (2) the state directly funding evangelistic activity. In the latter case — unlike in the former — the government sends the message that it supports evangelistic activity. This makes sense. Still, why is it wrong for the government to indicate its support for the (peaceful) sharing of religious worldviews? The US government already spends tax funds on countless propaganda items overflowing with normative intent. If (1) peaceful, non-civic religions benefit society as a whole and (2) the government shows no bias for one peaceful religion over another or over atheism, why is it impermissible for legislators, if they choose, to offer funds for religious groups to share their worldviews too?

Why not let “a thousand flowers bloom” — i.e., let religious and non-religious viewpoints check, correct, and compete with one another, so that a society can better discern the truth?  

Replacing Lemon

Rejecting coerced faith and hoping for religious pluralism, this essay suggests that in place of Lemon’s second prong and the Lemon test altogether, the Court should use parts of the “no coercion” and “equal treatment” tests to decide whether state activity violates the Establishment Clause.

Periodically articulated by Justice Kennedy, the “no coercion” test dictates (in part) that the “government may not coerce anyone to support or participate in any religion or its exercise.” The no coercion test thus prohibits government acts that force religious participation, whether through threats of violence or social ostracization. Hence, this test has restricted state-conducted religious prayers in public schools, spaces replete with pressure from government authorities and peers (e.g., Engel v. Vitale (1962), Lee v. Weisman (1992),Wallace v. Jaffree (1985)).

Like Justice Kennedy, I support jurisprudential use of the no coercion test. As Luther and Madison exclaimed, it is wrong to coerce faith: inner faith neither can, nor should be, truly compelled by sword. Such compulsion would violate a person’s creative autonomy reflective of God’s own, and not to mention, would violate the Free Exercise Clause. Forcing religious participation is the part of “respecting an establishment of religion” that — unlike mere aid to religion — is inherently wrong.

Second, the equal treatment test, often associated with Justices Thomas and Scalia, permits government support for a religious entity, so long as other religious and non-religious entities “similarly situated receive comparable treatment.”9 Witte and Nichols, Religion and the American Constitutional Experiment, 169.

It’s time the Court fully let its sour lemons go, so that society’s flowers may bloom and its people flourish.

Several reasons support the Court’s use of the equal treatment test in establishment jurisprudence. First, equal treatment is important for no coercion. While it is neither problematic nor inherently discriminatory for the state to aid a peaceful religious entity, it is problematic when a state preferentially aids one peaceful religious group over another similarly situated religious or non-religious group. When the state favors one religion over other worldviews, the state pressures — softly coerces — constituents to join state-favored peaceful religions or renounce unfavored ones. Second, the state should treat all peaceful religions equally, out of respect for peoples’ equal moral worth: if people are morally equal, their (peaceful) choices — including religious ones — should be equally respected by public institutions. Finally, equal treatment of religions enables society to flourish: when peaceful religions are treated equally, they can “compete” in their truth claims on even playing fields; nonviolent competition and dialogue over ideas can help society better understand the truth. Preferential treatment — not mere aid — is what is wrong about “respecting an establishment of religion.”

It’s Time to Move On

Purporting to protect citizens from the state’s establishment of religion, the Lemon test has instead fulfilled its very fears by bifurcating and defining religion. Purporting to benefit the public, the Lemon test has instead blocked religions from offering vital benefits to society. Though religions give citizens the grounds to complete moral obligations, comply with legal duties, and challenge the state’s missteps, the Lemon test has furthered the fiction that religion can and should be kept off the public square.

Rather than use Lemon or Agostini, courts should use combinations of the no coercion and equal treatment tests. State coercion of and preference for a particular faith are objectionable; mere state aid to religious entities is not.

In light of Lemon’s flaws and better doctrinal replacements, the Supreme Court and federal courts should rethink existing establishment jurisprudence. It’s time the Court fully let its sour lemons go, so that society’s flowers may bloom and its people flourish. ♦

Eric Wang is a J.D./M.T.S. candidate at Emory Law and Candler School of Theology, a Class of 2023 Woodruff Scholar, and a Gary R. Smith Research Fellow with Emory’s Center for the Study of Law and Religion. Eric’s scholarly interests include Christian ethics, legal and political philosophy, and contemporary Chinese affairs.