NATIONAL FORUM OF APPLIED EDUCATIONAL RESEARCH JOURNAL VOLUME 21, NUMBER 1, 2007--2008 THIRTY-FIVE YEARS OF LEMON INFLUENCE: ANALYSIS AND NATIONAL IMPLICATIONS Robert L. Marshall Western Illinois University ABSTRACTThis article provides an analysis of significant challenges that have arisen overthe past 35 plus years when the three-prong Lemon test has been applied toestablished traditional values predicated by the engrained religious heritage ofthe United States coupled with the diversity of religion and social mores acrossthe nation. Even with criticism and challenges along the way, the Lemon testhas remained the litmus test influencing public school religion law challengesfor almost four decades.L emon 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. The case involvedtwo state statutes, Pennsylvania and Rhode Island, which provided forstate educational funding aid to church-related elementary andsecondary schools. The issue litigated was whether state fundingprovided to parochial schools violated the establishment clause of thefirst amendment to the United States Constitution. Implications of theruling have been far reaching over the last 35 years and continue at thepresent time. Lemon v. Kurtzman has literally been cited thousand oftimes in other cases over the past 35 years. In only two instances since1971, the United States Supreme Court in the land veered away fromthe ruling and the three-prong test established by the case. 4
5 NATIONAL FORUM OF APPLIED EDUCATIONAL RESEARCH JOURNAL The unparalleled three prong test emerged from the ruling andhas become the jurisprudential precedent for cases to follow inevaluating the establishment issue related to religion in public schoolsacross the states. Litigation and the ultimate decision of the caseyielded the three prongs known as the “Lemon test”. The Lemon testdirects the courts to find that a statute, policy or practice does notviolate 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. The Lemon test has continued to be influential even as amajority of the Court has shifted to an accommodationist stance inrecent decisions (Levy 1994; Choper 1995). Prominent FirstAmendment scholar Jesse Choper has labeled the Lemon test as ‘‘thegoverning approach to judging Establishment Clause issues’’ (Choper1995:165). Futhermore, the Lemon test enunciated in the majorityopinion in Lemon v. Kurtzman has served to provide a framework forthe decisions in Establishment Clause cases decided over the last 35years (Kritzer & Richards, 2003). In recent times the U.S. Supreme court has expanded the limitsof the Lemon test and more broadly accepted the constitutionality ofsome policies and practices that were considered inappropriate inprevious times. One such example is the ruling in Mitchell v. Helms(530 U.S. 793, 2000) that approved the practices of public schoolteachers providing services to parochial school students along withfunding for computers at the same institutions. This decision trulystretches the limits of the Lemon test and expands the limits whileopening the door for litigation questioning previous decisions relatedto services and assistance for parochial schools. Currently, a shift in the political climate of the Supreme Courthas fostered the initiative to possibly amend or abolish the Lemonguideline and favor a more flexible approach to resolvingestablishment clause issues. The Court has only deviated from the
Robert L. Marshall 6Lemon test a limited number of times. One such case was Board ofEducation of Kiryas Joel Village School District v. Grumet (512 U.S.687, 1994) which struck down the establishment of a public schooldistrict to educate special education children of a religious enclave ofSatmar Hasidim, practitioners of a strict form of Judaism because itonly served one religious group or sect. Again in Roseburg v.University of Virginia (515 U.S. 819, 1995), the Supreme Court foundthat student activity funds could not be denied for a religious magazinesince it would constitute impermissible viewpoint censorship inviolation of the First Amendment free speech clause (Kemmer, Walsh& Maniotis 2005). Shortly after these two decisions, the court returnedto the Lemon guidelines in Agostini v. Felton (522 U.S. 803, 1997)upholding the practice of providing instruction by public schoolteacher to parochial school educationally disadvantaged childrenwhich overruled the previous decision prohibiting the same practice inAguilar v. Felton (473 U.S. 402, 1985). All things considered, until theSupreme Court establishes a more applicable set of guidelines thatmore effectively assess or determine constitutionality of cases, theLemon test remains as the precedent utilized by the justices. Lemon Test Applications Over the past 35 years, the Lemon test has been applied in aplethora of cases involving an array of religious issues in districtcourts, courts of appeals, and the United States Supreme Court.Throughout this period of time, the Court has applied the three-prongtest rigidly at times and more broadly in others even reversing its owndecisions in a few instances. The following list represents some of thekey relevant issues where the Lemon v. Kurtzman case influence andthe three-prong test have been applied:
7 NATIONAL FORUM OF APPLIED EDUCATIONAL RESEARCH JOURNAL ◦ 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 Dissenting Opinions In an effort to shed some light on the issue of where theSupreme Court might be headed with application of the Lemon testguideline, justices’ opinions were gleaned from the Westlaw CampusResearch Database. From this source a number of opinions emergewith some common theme in the direction the Court may be headed infuture decision. Both dissenting and concurring decision indicate achange in the climate of the high Courts evaluation and decisionprocess for cases related to establishment issues.
Robert L. Marshall 8 In Wallace v. Jaffree (472 U.S. 38, 1985), Chief JusticeRehnquist wrote the following dissenting opinion: The 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. The three-part test has simply not provided adequate standards for deciding Establishment Clause cases, as this Court has slowly come to realize. Even worse, the Lemon test has caused this Court to fracture into unworkable plurality opinions, see n. 6, supra, depending upon how each of the three factors applies to a certain state action. The results from our school services cases show the difficulty we have encountered in making the Lemon test yield principled results. For example, a State may lend to parochial school children geography textbooks, Board of Education v. Allen, (392 U.S. 236, 1968) that contain maps of the United States, but the State may not lend maps of the United States for use in geography class. Meek v. Pittenger, (421 U.S. 349 1975). A State may lend textbooks on American colonial history, but it may not lend a film on George Washington, or a film projector to show it in history class. A State may lend classroom workbooks, but may not lend workbooks in which the parochial school children write, thus rendering them nonreusable (Meek, supra) A State may pay for bus transportation to religious schools Everson v. Board of Education (330 U.S. 1 1975) but may not pay for bus transportation from the parochial school to the public zoo or natural history museum for a field trip Wolman v. Walter, (433 U. S. 229 1977). A State may pay for diagnostic services conducted in the parochial school but therapeutic services must be given in a different building; speech and hearing "services" conducted by the State inside the sectarian school are
9 NATIONAL FORUM OF APPLIED EDUCATIONAL RESEARCH JOURNAL forbidden, Meek v. Pittenger, (421 U.S. 349 1975), but the State may conduct speech and hearing diagnostic testing inside the sectarian school. (Wolman, supra). Exceptional parochial school students may receive counseling, but it must take place outside of the parochial school, (Wolman, supra) such as in a trailer parked down the street A State may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services, Committee for Public Education and Religious Liberty v. Regan, (444 U.S. 646 1980) but it may not provide funds for teacher-prepared tests on secular subjects Levitt v. Committee for Public Education and Religious Liberty (413 U.S. 472 1973) Religious instruction may not be given in public school, Illinois ex rel. McCollum v. Board of Education, (333 U.S. 203, 1948). but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws. Zorach v. Clauson, (343 U.S. 306 1952) These results violate the historically sound principle "that the Establishment Clause does not forbid governments ... to [provide] general welfare under which benefits are distributed to private individuals, even though many of those individuals may elect to use those benefits in ways that aid religious instruction or worship." Committee for Public Education & Religious Liberty v. Nyquist, (413 U.S. 756, 1973) (BURGER, C.J., concurring in part and dissenting in part). It is not surprising in the light of this record that our most recent opinions have expressed doubt on the usefulness of the Lemon test. 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
Robert L. Marshall 10 signpos[t]." Mueller v. Allen, (463 U.S. 388, 394, 1983), citing Hunt v. McNair, (413 U.S. 734, 1973); Larkin v. Grendels Den, Inc., (459 U.S. 116, 1982). We have noted that the Lemon test is "not easily applied," (Meek, supra) and as Justice WHITE noted in (Regan, supra) under the Lemon test we have "sacrifice[d] clarity and predictability for flexibility." (444 U.S., 662, 1980). In Lynch we reiterated that the Lemon test has never been binding on the Court, and we cited two cases where we had declined to apply it. Again in the more recent Santa Fe Independent School DistrictV. Doe (530 U.S. 290, 2000) Justice Rehnquist writes the followingdissenting opinion: We do not learn until late in the Courts opinion that respondents in this case challenged the districts student- message program at football games before it had been put into practice. As the Court explained in United States v. Salerno, (481 U.S. 739, 745, 1987), the fact that a policy might "operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid." See also Bowen v. Kendrick, (487 U.S. 589, 1988). While there is an exception to this principle in the First Amendment overbreadth context because of our concern that people may refrain from speech out of fear of prosecution, Los Angeles Police Dept. v. United Reporting Publishing Corp., (528 U.S. 32, 38-40, 1999), there is no similar justification for Establishment Clause cases. No speech will be "chilled" by the existence of a government policy that might unconstitutionally endorse religion over nonreligion. Therefore, the question is not whether the districts policy may be applied in violation of the Establishment Clause, but whether it inevitably will be.
11 NATIONAL FORUM OF APPLIED EDUCATIONAL RESEARCH JOURNAL The Court, venturing into the realm of prophecy, decides that it "need not wait for the inevitable" and invalidates the districts policy on its face. See ante, at 2282. To do so, it applies the most rigid version of the oft-criticized test of Lemon v. Kurtzman, (403 U.S. 602, 1971). The Court rightly points out that in facial challenges in the Establishment Clause context, we have looked to Lemons three factors to "guid[e] [t]he general nature of our inquiry." Ante, at 2282 (internal quotation marks omitted) (citing Bowen v. Kendrick, (487 U.S. 589, 612, 1988)). In Bowen, we looked to Lemon as such a guide and determined that a federal grant program was not invalid on its face, noting that "[i]t has not been the Courts practice, in considering facial challenges to statutes of this kind, to strike them down in anticipation that particular applications may result in unconstitutional use of funds. (487 U.S., at 612, 1988) But here the Court, rather than looking to Lemon as a guide, applies Lemons factors stringently and ignores Bowens admonition that mere anticipation of unconstitutional applications does not warrant striking a policy on its face. Lemon has had a checkered career in the decisional law of this Court. See, e.g., Lambs Chapel v. Center Moriches Union Free School Dist., (508 U.S. 384, 398-399, 1993) (SCALIA, J., concurring in judgment) (collecting opinions criticizing Lemon ); Wallace v. Jaffree, (472 U.S. 38, 1985) (REHNQUIST, J., dissenting) (stating that Lemons "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" (internal quotation marks omitted)); Committee for Public Ed. and Religious Liberty v. Regan, (444 U.S. 646, 671, 1980) (STEVENS, J., dissenting) (deriding "the sisyphean task of trying to patch together the
Robert L. Marshall 12 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) ("[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area .... In two cases, the Court did not even apply the Lemon test [citing Marsh v. Chambers, (463 U.S. 783, 1983), and Larson v. Valente, (456 U.S. 228, 1982). Indeed, in Lee v. Weisman, (505 U.S. 577, 1992), an opinion upon which the Court relies heavily today, we mentioned, but did not feel compelled to apply, the Lemon test. See also Agostini v. Felton, (521 U.S. 203, 233, 1997) (stating that Lemons entanglement test is merely "an aspect of the inquiry into a statutes effect"); Hunt v. McNair, (413 U.S. 734, 741, 1973) (stating that the Lemon factors are "no more than helpful signposts"). Even if it were appropriate to apply the Lemon test here, the districts student-message policy should not be invalidated on its face. The Court applies Lemon and holds that the "policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events." Ante, at 2283. The Courts reliance on each of these conclusions misses the mark. In Aguilar v. Felton, Sandra Day O’Connor provides anaddition to Judge Rehnquist’s dissenting opinion related to the Lemontest as follows: As in Wallace v. Jaffree, 472 U.S. 38, (1985), and Thornton v. Caldor, Inc., (472 U.S. 703, 1985), the Court in this litigation adheres to the three-part Establishment Clause test enunciated in Lemon v. Kurtzman, (403 U.S. 602, 612-613, 1971). To survive the Lemon test, a statute must have both a
13 NATIONAL FORUM OF APPLIED EDUCATIONAL RESEARCH JOURNAL secular legislative purpose and a principal or primary effect that neither advances nor inhibits religion. Under Lemon and its progeny, direct state aid to parochial schools that has the purpose or effect of furthering the religious mission of the schools is unconstitutional. I agree with that principle. According to the Court, however, the New York City Title I program is defective not because of any improper purpose or effect, but rather because it fails the third part of the Lemon test: the Title I program allegedly fosters excessive government entanglement with religion. I disagree with the Courts analysis of entanglement, and I question the utility of entanglement as a separate Establishment Clause standard in most cases. Before discussing entanglement, however, it is worthwhile to explore the purpose and effect of the New York City Title I program in greater depth than does the majority opinion. In Committee for Public Ed. and Religious Liberty v. Regan(444 U.S. 646, 1980), Justice Stevens reiterates his dissenting opinionwith the following colorful quote: …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), I would resurrect the "high and impregnable" wall between church and state constructed by the Framers of the First Amendment. See Everson v. Board of Education, (330 U.S. 1, 1947)
Robert L. Marshall 14 Concurring Opinions More recently in Agostini v. Felton (521 U.S. 203, 1997),Sandra Day O’Connor delivered the opinion of the court as follows: In order to evaluate whether Aguilar has been eroded by our subsequent Establishment Clause cases, it is necessary to understand the rationale upon which Aguilar, as well as its companion case, School Dist. of Grand Rapids v. Ball, ( 473 U.S. 373, 1985), rested. The Court conducted its analysis by applying the three- part test set forth in Lemon v. Kurtzman, 403 U.S. 602, (1971): "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." 473 U.S., at 382-383, 105 S.Ct., at 3222 (quoting Lemon, supra) The Court acknowledged that the Shared Time program served a purely secular purpose, thereby satisfying the first part of the so-called Lemon test. 473 U.S., at 383, 105 S.Ct., at 3222. Nevertheless, it ultimately concluded that the program had the impermissible effect of advancing religion. Id., at 385, 105 S.Ct., at 3223. The Court found that the program violated the Establishment Clauses prohibition against "government- financed or government-sponsored indoctrination into the beliefs of a particular religious faith" in at least three ways. Ibid. First, drawing upon the analysis in Meek v. Pittenger, (421 U.S. 349, 1975), the Court observed that "the teachers participating in the programs may become involved in intentionally or inadvertently inculcating particular religious tenets or beliefs." 473 U.S., at 385. Meek invalidated a Pennsylvania program in which full-time public employees
15 NATIONAL FORUM OF APPLIED EDUCATIONAL RESEARCH JOURNAL provided supplemental "auxiliary services"--remedial and accelerated instruction, guidance counseling and testing, and speech and hearing services--to nonpublic school children at their schools. 421 U.S., 367. Although the auxiliary services themselves were secular, they were mostly dispensed on the premises of parochial schools, where "an atmosphere dedicated to the advancement of religious belief [was] constantly maintained." Meek, 421 U.S., 371. In Lynch v. Donnelly (465 U.S. 668, 1984), Justice O’Connorwrites the following 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. "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ...; finally, the statute must not foster an excessive government entanglement with religion. " 403 U.S., at 612-613, 91 S.Ct., at 2111. Moreover, the Court has held that a statute or practice that plainly embodies an intentional discrimination among religions must be closely fitted to a compelling state purpose in order to survive constitutional challenge. See Larson v. Valente, (456 U.S. 228, 1982). As the Courts opinion observes, ante, at 1366, n. 13, this case does not involve such discrimination. The Larson standard, I believe, may be assimilated to the Lemon test in the clarified version I propose. Plain intentional discrimination should give rise to a
Robert L. Marshall 16presumption, which may be overcome by a showing ofcompelling purpose and close fit, that the challengedgovernment conduct constitutes an endorsement of the favoredreligion or a disapproval of the disfavored. In this case, as even the District Court found, there isno institutional entanglement. Nevertheless, the appelleescontend that the political divisiveness caused by Pawtucketsdisplay of its crèche violates the excessive-entanglement prongof the Lemon test. The Courts opinion follows the suggestionin Mueller v. Allen, 463 U.S. ----, ----, (1983), and concludesthat "no inquiry into potential political divisiveness is evencalled for" in this case. Ante, at 1364. In my view, politicaldivisiveness along religious lines should not be an independenttest of constitutionality. Although several of our cases have discussed politicaldivisiveness under the entanglement prong of Lemon, see, e.g.,Committee for Public Education v. Nyquist, (413 U.S. 756,796, 1973).We have never relied on divisiveness as anindependent ground for holding a government practiceunconstitutional. Guessing the potential for politicaldivisiveness inherent in a government practice is simply toospeculative an enterprise, in part because the existence of thelitigation, as this case illustrates, itself may affect the politicalresponse to the government practice. Political divisiveness isadmittedly an evil addressed by the Establishment Clause. Itsexistence may be evidence that institutional entanglement isexcessive or that a government practice is perceived as anendorsement of religion. But the constitutional inquiry shouldfocus ultimately on the character of the government activitythat might cause such divisiveness, not on the divisivenessitself. The entanglement prong of the Lemon test is properlylimited to institutional entanglement.
17 NATIONAL FORUM OF APPLIED EDUCATIONAL RESEARCH JOURNAL The purpose prong of the Lemon test asks whether governments actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of governments 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. The purpose prong of the Lemon test requires that a government activity have a secular purpose. That requirement is not satisfied, however, by the mere existence of some secular purpose, however dominated by religious purposes. In Stone v. Graham, (449 U.S. 39, 1980), for example, the Court held that posting copies of the Ten Commandments in schools violated the purpose prong of the Lemon test, yet the State plainly had some secular objectives, such as instilling most of the values of the Ten Commandments and illustrating their connection to our legal system, but see id., at 41, 101 S.Ct., at 193. The proper inquiry under the purpose prong of Lemon, I submit, is whether the government intends to convey a message of endorsement or disapproval of religion. Focusing on the evil of government endorsement or disapproval of religion makes clear that the effect prong of the Lemon test is properly interpreted not to require invalidation of a government practice merely because it in fact causes, even as a primary effect, advancement or inhibition of religion. The laws upheld in Walz v. Tax Commission, (397 U.S. 664, 1970) (tax exemption for religious, educational, and charitable organizations), in McGowan v. Maryland, (366 U.S. 420, 1960) (mandatory Sunday closing law), and in Zorach v. Clauson, (343 U.S. 306, 1952) (released time from school for off-campus religious instruction), had such effects, but they did not violate the Establishment Clause. What is crucial is that a government practice not have the effect of communicating a message of government endorsement or disapproval of
Robert L. Marshall 18 religion. It is only practices having that effect, whether intentionally or unintentionally, that make religion relevant, in reality or public perception, to status in the political community. Finally, the most significant condemnation of the Lemon testcame from Justice Scalia in his concurring opinion in Lambs Chapelv. Center Moriches Union Free School District (508 U.S. 384, 1993).The following is an excerpt from his concurring opinion in the case: …I also agree with the Court that allowing Lambs Chapel to use school facilities poses "no realistic danger" of a violation of the Establishment Clause, ante, at *398 2148, but I cannot accept most of its reasoning in this regard. The Court explains that the showing of petitioners film on school property after school hours would not cause the community to "think that the District was endorsing religion or any particular creed," and further notes that access to school property would not violate the three-part test articulated in Lemon v. Kurtzman, (403 U.S. 602, 1971). Ante, at 2148. As to the Courts 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, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman, (505 U.S. 577, 586-587, 1992), conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creatures heart (the author of todays opinion repeatedly), and a sixth has joined an opinion doing so.
19 NATIONAL FORUM OF APPLIED EDUCATIONAL RESEARCH JOURNAL The secret of the Lemon tests 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. See, e.g., Lynch v. Donnelly, (465 U.S. 668, 679, 1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e.g., Aguilar v. Felton, (473 U.S. 402, 1985) (striking down state remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, (463 U.S. 783, 1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts," Hunt v. McNair, (413 U.S. 734, 741, 1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him. 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. See, e.g., Choper, The Establishment Clause and Aid to Parochial Schools--An Update, 75 Calif.L.Rev. 5 (1987); Marshall, "We Know It When We See It": The Supreme Court and Establishment, 59 S.Cal.L.Rev. 495 (1986); McConnell, Accommodation of Religion, 1985 S.Ct.Rev. 1; Kurland, The Religion Clauses and the Burger Court, 34 Cath.U.L.Rev. 1 (1984); R. Cord, Separation of Church and State (1982); Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U.Pitt.L.Rev. 673 (1980). I will decline to apply Lemon-- whether it validates or invalidates the government action in question--and therefore cannot join the opinion of the Court today.
Robert L. Marshall 20 Analysis of Lemon by Law Scholars Douglas Laycock, Alice McKean Young Regents ChairEmeritus at the University of Texas Law School in Austin, Texas,analyzed the historical pathway of the three-prong test in “Survey ofReligious Liberty in the United States” and Establishment Clausecases and found that it has “not produced coherent results” but has“produced distinctions that do not commend themselves to commonsense” (Douglas, 47 Ohio St. L. J. 409, 446, 1986). The following is aquote from his Ohio State Law Journal report from a symposiumentitled “The Tension Between the Free Exercise Clause and theEstablishment Clause of the First Amendment”: In 1971 the Court distilled from its earlier cases a three- part test to identify establishment clause violations. The Court said: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion. Lemon v. Kurtzman, (403 U.S. 602, 1971) The Court generally has adhered to this verbal formulation ever since. In cases involving prayer or religious teaching in the public schools, the Court has generally found no secular purpose. In the cases on financial aid to religious institutions, the Court has held that states are pursuing the secular purpose of educating children. But it has generally found a dilemma in the second and third parts of its test. Under the tracing theory, if aid cannot be traced to a wholly secular function it has a primary effect of advancing religion. But if the state imposes substantial controls to insure that the aid is not diverted to religious purposes, that creates too much entanglement between church and state. One way or the other, most aid to religious schools fails the three-part test.
21 NATIONAL FORUM OF APPLIED EDUCATIONAL RESEARCH JOURNAL The Courts three-part test has been subject to intense scholarly criticism. Some scholars have argued that the ban on excessive entanglement in the third part of the test, and on effects that inhibit religion in the second part of the test, are free exercise concepts that have nothing to do with the establishment clause. The dispute is more than academic. Only the affected churches or believers can sue to prevent inhibition of religion or entanglement with religion under the free exercise clause. But, by making these problems establishment clause violations, the Court permits nonbelievers to file taxpayer suits to save the churches from inhibition and entanglement, whether or not the churches want to be saved. In addition to this expansion of the usual understanding of establishment, the three-part test has been so elastic in its application that it means everything and nothing. The meaning of entanglement has been especially slippery. (Laycock, General Theory, supra note 4, at 1392-94). All of the financial aid cases summarized in the previous section were decided under the three-part test; the Court modified the three parts as necessary to accommodate all the different results and all the different theories. The Court upheld municipal Nativity scenes under the three-part test, finding that depictions of the Holy Family had a secular purpose and effect (!) and did not cause excessive entanglement between government and religion. Lynch v. Donnelly, (465 U.S. 668 1984).I have described the prayer cases and the financial aid cases, the two pre-eminent establishment clause issues, without ever mentioning the three- part test. I have done so because I think the three-part test does not help explain the Courts results and actually hampers understanding of the real issues. The Honorable Kenneth F. Ripple, judge on the United StatesCourt of Appeals for the Seventh Circuit since 1985, published anarticle in 1980 entitled “The Entanglement Test of the Religion
Robert L. Marshall 22Clauses--A Ten Year Assessment” which focuses on the final prongand how the courts have applied the excessive entanglement provisionof the Lemon test. The following is a summary of his analysis of thedecisions over the ten year period: The reappraisal of the entanglement test by the Supreme Court must necessarily involve examination from three perspectives: the impact of the test on the overall doctrinal development of the religion clauses; the practical problems inherent in the implementation of the test; and the possible future developments if the Court continues to use it. In considering the impact of the test on the overall development of the religion clauses, one must recognize that the underlying principle protected by the “excessive entanglement” concept has long been recognized as one of the core strengths of our democratic society. Madison recognized the theoretical necessity of confining religion and civil government to their own respective spheres; de Tocqueville observed the salutary consequences of adherence to that standard. Perhaps the expanding role of civil government and the newly-emphasized “social mission” of many large churches has convinced those who enjoy the unique perspective of American life which membership on the Court provides that this value needs to be reemphasized as a significant constitutional standard. There is, however, nothing in the facts of the cases coming before the Court that would tend to support that judgment. Indeed, as Justice Powell noted in Wolman, “(t)he risk of significant religious or denominational control over our democratic processes – or even of deep political division along religious lines – is remote….” It is therefore conceivable that the Court has issued the “entanglement test” without much reflection on its overall impact on the direction of religion clause jurisprudence.
23 NATIONAL FORUM OF APPLIED EDUCATIONAL RESEARCH JOURNAL Even if the Court is willing to accept this doctrinal impact of the “entanglement test,” the question remains, as Justice White has reiterated recently, whether the articulation of this constitutional value through the “excessive entanglement” concept is a useful judicial methodology. As employed by the Supreme Court over the past decade, it has emerged largely as a criterion without an internal discipline. The originally conceived standard of history is helpful in assessing some of the more traditional religious-civil relationships but is of only marginal utility in assessing newer areas of contact between those spheres. The only alternative found by the Court has been the quasi-codification of its early holdings into the litmus tests of Roemer and Wolman. Judicial factual assessments of one time and one place thus become the operative standards of constitutional adjudication in the long term. With respect to future directions, the open-ended nature of the “excessive entanglement” concept exposes to subtle and imprecise reassessment many other areas of constitutional adjudication. Traditional areas of church-state cooperation, long permitted under past standards of review, now seem exposed to reassessment on the ground that the relationship poses the danger, although not necessarily the actuality, of future religiously-based strife. Even if the Court does wish to see the “wall of separation” become a bit higher, there are serious questions as to whether it has selected an appropriate tool. Perhaps it has simply increased the probability that future cases will rest to an even greater extent on the personal predilections of current members of the Court or, even worse, on those of past members of the Court whose predilections have become the conventional wisdom of the “standard profiles.” In short, the benefit derived from the test seems quite remote compared with the risks involved in using such an undisciplined judicial methodology.
Robert L. Marshall 24 Kenneth Mitchell Cox published a review in the VanderbiltLaw Review in October of 1984 entitled “The Lemon Test Soured:The Supreme Courts New Establishment Clause Analysis” (37 Vand.L. Rev. 1175). His analysis contends that the Supreme Court hasveered away from rigorous applications of the Lemon test. Thefollowing is a quote from the conclusion of his article: The Supreme Courts two latest establishment clause decisions mark a significant analytical departure from the three part Lemon test that the Court applied in a long line of prior cases. Marsh and Lynch demonstrate the Courts apparent attempt to exclude from the scope of establishment clause protection minor encroachments that the Court believes either do not pose the actual dangers which the Framers feared in the eighteenth century church, or that merely constitute the governments routine historical recognition of religion in American society. The Courts continued use of the new historical approach threatens not only uniformity in establishment clause jurisprudence under the Lemon test, but also the fundamental first amendment protections that the traditional approach has secured. First, historical review cannot yield a definitive interpretation of the Framers intent. Second, historical analysis does not protect adequately against contemporary establishment dangers that the first amendment drafters did not or could not anticipate. Last, the Courts idea of pointing to other, distinguishable official acknowledgements of religion does not justify the governments active participation in religious activity. The Supreme Court should reaffirm its commitment not only to establishment clause principles, but also to the Lemon test as a rigorous analytical framework that protects those principles. Summary and Conclusion
25 NATIONAL FORUM OF APPLIED EDUCATIONAL RESEARCH JOURNAL In the process of analyzing the cases influenced by the Lemontest along with court and judges opinions, it comes to light that thepolitical climate could bring significant change in the not so distantfuture in regards to religion in public schools. The limitations of theLemon test emerge in the analysis of the endorsements made by thelower courts. Moreover, significant challenges arise when the three-prong test is applied to established traditional values predicated by theengrained religious heritage of the United States coupled with thediversity of religion and social mores across the nation. Even withcriticism and challenges along the way, the Lemon test has remainedthe litmus test influencing public school law challenges for over 35years. Recommendations Kemmer, Walsh and Maniotis (2005) refer to a set of sixguidelines developed by a coalition of seventeen religious andeducational organizations about religion in public schools. Thefollowing list guidelines are suggested for public schools at the presenttime: 1. The school’s approach to religion must be academic, not devotional. 2. The school may strive for student awareness of religion but should not pass for student acceptance of any on religion. 3. The school may sponsor study about religion but may not sponsor the practice of religion 4. The school may expose students to a diversity of religious views but may not impose any particular view.
Robert L. Marshall 26 5. The school may educate about all religions but may not promote or denigrate any religion. 6. The school may inform the student about various beliefs but should not seek to confine him or her to any particular belief.Implementing the aforementioned guidelines in all public schoolsshould go a long way toward minimizing the probability of costlylitigation regardless or where the Supreme Court and lower courts maystand in the future on the provisions of the three-pronged Lemon test.
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