News and Notes: Lemon Test Endangered
By George Francis Kane
Secular government is on the brink of oblivion in America.
Every reader of this column surely knows that the separation of state and church is legally based in the Establishment and Free Exercise Clauses of the First Amendment, that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” It was not until the middle of the twentieth century that the Supreme Court received cases that enabled it to take up the task of providing clarity to the Establishment Clause by creating tests to determine when government actions would be in violation. Pre-eminent among these tests is the three-pronged Lemon Test:
- The government’s action must have a legitimate secular purpose;
- The government’s action must not have the primary effect of either advancing or inhibiting religion; and
- The government’s action must not result in an “excessive entanglement” of the government and religion.
The Lemon Test provided clear definition to the Establishment Clause since it was introduced in the 1971 case Lemon v. Kurtzman. Since the turn of the millennium, however, the composition of the Supreme Court has taken a conservative turn, and its understanding of the Establishment Clause has weakened. It has never overturned the Lemon Test, but rather it has repeatedly ignored it.
That brings us to the case Shurtleff v. City of Boston, which the Court heard in January. Boston has three flagpoles outside its city hall, one of which normally flies the flag of the City of Boston. At times Boston chooses to fly a different flag instead, as a special recognition or celebration by the city. Usually, this is the flag of some other nation, but the city decided to fly the LGBTQ Rainbow Flag, to commemorate the city’s official designation of Boston Pride Month.
In response, a Christian Nationalist organization, Camp Constitution, applied to fly the Christian flag on the city’s flagpole. The city rejected the application, as it would violate the precepts of the Lemon Test. The flagpole in question is city property, and the decision of what flags to fly is always an official act of government. It is not a free speech forum and has never been used to fly the flag of any religion, sect or denomination.
An amicus curiae brief submitted by the Becket Fund, a Christian nationalist legal group, reveals that the strategic plan behind this case is to overturn the Lemon Test, so that it may no longer be adopted by lower courts. In the hearing for this case, Justice Neil Gorsuch approved of the characterization of the Lemon Test as a mistaken view of the Establishment Clause, and asked the Court “What’s left for us to decide?”
What will be the result of overturning the Lemon Test? If laws are not required to have a secular purpose, there will be nothing to restrain the spending of government tax revenue on funding religious education and advocacy. If they may have the effect of promoting religion, then there is no bar to government establishing religious orthodoxy, which may be imposed with force of law. Religious freedom will disappear along with reproductive and sexual identity rights. If there is no bar to government entanglement with religion, law and religious dogma can be expected to merge. Government may then set, as a requirement for government funding, doctrinal compliance by churches with the denominations the government prefers. Preference for one religion over another? Preference for religion over nonreligion? Nothing in law will prevent them.
What will replace Lemon, to test when a government action violates the Establishment Clause? Supposedly, we will return to the understanding of the role of government with respect to religion that was in effect when the First Amendment was adopted. So, what were the tests of Establishment Clause violation that were in effect at that time? History is totally silent. There were no Establishment Clause cases accepted by the Supreme Court, or brought to it, until the mid-1900s. The Establishment Clause will be rendered operationally meaningless.
