Lemon v. Kurtzman: Reflections on a Constitutional Catastrophe
William E. Thro and Charles J. Russo
One of the most contentious issues in constitutional law is whether governmental action amounts to “an establishment of religion” in violation of the First Amendment. For the past fifty years, the Court has often, but not always, resolved Establishment Clause cases using the three-pronged test established by Lemon v. Kurtzman. Under the Lemon test, a court must ask whether a challenged government action (1) has a secular purpose; (2) has a “principal or primary effect” that “neither advances nor inhibits religion”; and (3) does not foster “an excessive government entanglement with religion.” Despite consistent criticism from the academy, the lower court, and many Justices (as well as several Establishment Clause cases where the Court has simply ignored the decision), the Court has not explicitly overruled Lemon.
Yet Lemon is a constitutional catastrophe. This is so for three reasons. First, it is contrary to the original public meaning of the Establishment Clause. Second, it is simply unworkable as a jurisprudential test. Third, rather than uniting Americans into what John Inazu calls a “confident pluralism,” it encourages division. Each of these flaws warrants further discussion.
A. Contrary to Original Public Meaning
As explained above, Lemon, like Everson v. Board of Education before it, assumes the Establishment Clause erects a “wall of separation.” This assumption is simply wrong. When the First Amendment was ratified in 1791, the original public meaning of the Establishment Clause was not separation of church and state, but the freedom from the establishment of religion.
There is a “distinction between the separation of church and state and the constitutional freedom from a religious establishment.” The phrase “separation of church and state” suggests “a distance, segregation, or absence of contact between church and state and state. Rather than simply forbid civil laws respecting an establishment of religion, [the separationist interpretation of the First Amendment] has more ambitiously tended to prohibit contact between religious and civil institutions.” Conversely, the freedom from a religious establishment means there is no “promotion and inculcation of a common set of beliefs through governmental authority.” There will be no “exclusive legal preference for one church or religion over all others” nor any “arrangement where the civil government imposed articles of faith and forms of worship on all those under its authority.”
The Framing Generation’s views focused on freedom from religious establishment rather than a separation of church and state. “None of the Framers believed that a public role for religion was an evil in itself. Rather, many opposed an established church like the established Anglican Church in England because they believed that it was a threat to the free exercise of religion.” Indeed, “most Framers supported religion, not for credal purposes, but because it promoted civic virtue among the people, which they thought was a necessary element for the maintenance of republican self-government.”
This freedom from a religious establishment was understood to be a rejection of coercion, a mandate of neutrality toward competing sects, and a prohibition on governmental interference with religious organizations. As Judge McConnell noted, freedom from religious establishment “can be summarized [by the] six categories [of actions it outlaws] : (1) control over doctrine, governance, and personnel of the church; (2) compulsory church attendance; (3) financial support; (4) prohibitions on worship in dissenting churches; (5) use of church institutions for public functions; and (6) restriction of political participation to members of the established church.” While the Lemon test certainly would prevent the government from engaging in any of those six actions, in practice it goes far beyond them. If the Court wishes to be true to the original public meaning, then Lemon must be abandoned.
B. Unworkable Jurisprudentially
As a half century of litigation has demonstrated, Lemon is simply unworkable jurisprudentially. Since Everson first applied the Establishment Clause to the States, the court has addressed six distinct categories of cases. First, “religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.” Second, “religious accommodations and exemptions from generally applicable laws.” Third, “subsidies and tax exemptions.”
Fourth, “religious expression in public [K-12] schools.” Fifth, “regulation of private religious speech.” Sixth, “state interference with internal church affairs.” Of course, there are other cases that do not fit into the categories, such as cases concerning Sunday closing laws and church involvement in governmental decision making.
Yet as Justice Kavanaugh observed, “the Lemon test does not explain the Court’s decisions in any of those….categories” for multiple reasons. First, “the Court has relied on history and tradition and upheld various religious symbols on government property and religious speech at government events….Lemon does not account for the results in these cases.” Second, the “Court has allowed legislative accommodations for religious activity and upheld legislatively granted religious exemptions from generally applicable laws. Lemon, fairly applied, does not justify those decisions.” Third, “the Court likewise has upheld government benefits and tax exemptions that go to religious organizations, even though those policies have the effect of advancing or endorsing religion. Those outcomes are not easily reconciled with Lemon.”
Fourth, “the Court has proscribed government-sponsored prayer in public schools. The Court has done so not because of Lemon, but because the Court concluded that government-sponsored prayer in public schools posed a risk of coercion of students…In short, Lemon was not necessary to the Court’s decisions holding government-sponsored school prayers unconstitutional.” Fifth, “the Court has allowed private religious speech in public forums on an equal basis with secular speech. Lemon does not explain those cases.” Sixth, the cases involving government interference with church affairs, such as Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, have never mentioned Lemon.
Put simply, “in many cases,” the Supreme Court “has either expressly declined to apply the [Lemon] test or has simply ignored it.” Indeed as “cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them.” Justice Thomas, in calling for the complete repudiation of Lemon, has argued: (1) it has no basis in the original meaning of the Constitution; (2) it is easily manipulated to achieve whatever result the judges wish; (3) it causes enormous confusion in both state and federal courts. Justice Kavanaugh asserts the Court “no longer applies” Lemon. Justice Gorsuch, joined by Justice Thomas, declares, “Lemon was a misadventure. It sought a ‘grand unified theory’ of the Establishment Clause but left us only a mess.”
C. Divides Americans
A half century after Lemon, our Republic lacks “agreement about the purpose of our country, the nature of the common good, and the meaning of human flourishing.” Indeed, “there is not a single important cultural, religious, political or social force that is pulling Americans together more than it is pushing us apart.” We have forgotten that “freedom flows from the tireless efforts of those who proclaim and pursue protection of the equal human dignity of all.” Many are intolerant of Americans “with a deep faith that requires them to do things passing legislative majorities might find unseemly or uncouth.”
If our Union “conceived in liberty and dedicated to the proposition that all…are created equal” is to “long endure,” then we must develop a “‘confident pluralism that conduces to civil peace and advances democratic consensus-building.”’ Since every American is “seeking a home where he himself is free,” our Nation must find a way “to be steadfast in our personal convictions, while also making room for the cacophony that may ensue when others disagree with us.”
Acknowledging the “nobility and dignity [of] all persons, without regard to their station in life” also requires permitting views we find “deeply unacceptable” or “blasphemously, disastrously, obscenely wrong.” We can and must learn to “live with those we regard as damned.”
The Nation has room for “both for you and ‘a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.’” Just as America was “wide enough” for both Hamilton and Burr, it is “wide enough” for red states and blue states, urban and rural, the secular and the sacred, the new immigrant and the Tribal Nations, the descendent of slaves and the descendent of pilgrims, People of Faith and people of no faith, those who remember Pearl Harbor and those who do not remember 9/11, the critical race theorist and the constitutional originalist, the gay and the straight, the cisgender and the transgender or nonbinary.
Yet by perpetuating the idea of a wall of separation between Church and State, Lemon encourages this division. For example, after Lemon, university administrators erroneously thought the Establishment Clause required the exclusion of student religious groups from campus facilities and/or obtaining funding from student activity fees. The enactment of policies that treat people of faith as second-class citizens unable to partake of the benefits available to the secular sends the unmistakable message that believers are unwelcome. There is a distinct relationship between the acceptance of a wall of separation and the acceptance of anti-religious bigotry.
As Justice Breyer, joined by Justice Kagan, observed, “there is no single formula for resolving Establishment Clause challenges. The Court must instead consider each case in light of the basic purposes that the Religion Clauses were meant to serve.” Justice Kavanaugh has suggested that Establishment Clause cases turn on “an overarching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in history and tradition; or (ii) treats religious people, organizations, speech, or activity equally to comparable secular people, organizations, speech, or activity; or (iii) represents a permissible legislative accommodation or exemption from a generally applicable law then there ordinarily is no Establishment Clause violation.”
Justice Kavanaugh’s overarching set of principles explain existing Establishment Clause jurisprudence and may well represent a concise future approach to Establishment Clause issues. The Court should abandon a legal standard that is contrary to the original public meaning, is unworkable jurisprudentially, and encourages division among Americans.♦
William E. Thro, J.D., is General Counsel of the University of Kentucky, former Solicitor General of Virginia, and current President-Elect of the National Education Finance Academy. Mr. Thro writes in his personal capacity. His views do not necessarily represent the views of the University of Kentucky.
Charles J. Russo, M.Div., J.D., Ed.D. is the Joseph Panzer Chair of Education in the School of Education and Health Sciences (SEHS), Director of SEHS’s Ph.D. Program in Educational Leadership, and Research Professor of Law in the School of Law at the University of Dayton, OH. He is also an Adjunct Professor at Notre Dame University of Australia School of Law, Sydney Campus
Thro, William E., and Charles J. Russo. “Lemon v. Kurtzman: Reflections on a Constitutional Catastrophe.” Canopy Forum, November 1, 2021. https://canopyforum.org/2021/11/1/lemon-v-kurtzman-reflections-on-a-constitutional-catastrophe-by-william-e-thro-and-charles-j-russo/