Church, State and the Lemon Test: The Shortcomings of the Supreme Court When Deciding Establishment Clause Cases

#History: A Journal of Student Research Volume 2 Conflict & Law Article 4 6-2018 Church, State and the Lemon Test: The Shortcomings of the Supreme Court When Deciding Establishment Clause Cases Jonathan Broida The College at Brockport Follow this and additional works at: https://digitalcommons.brockport.edu/hashtaghistory Part of the Constitutional Law Commons, History Commons, and the Religion Commons Repository Citation Broida, Jonathan (2018) "Church, State and the Lemon Test: The Shortcomings of the Supreme Court When Deciding Establishment Clause Cases," #History: A Journal of Student Research: Vol. 2 , Article 4. Available at: https://digitalcommons.brockport.edu/hashtaghistory/vol2/iss1/4 This Paper is brought to you for free and open access by Digital Commons @Brockport. It has been accepted for inclusion in #History: A Journal of Student Research by an authorized editor of Digital Commons @Brockport. For more information, please contact . CHURCH, STATE, AND THE LEMON TEST: THE SHORTCOMINGS OF THE SUPREME COURT WHEN DECIDING ESTABLISHMENT CLAUSE CASES Jonathan Broida, The College at Brockport The Establishment Clause in the First Amendment of the United States Constitution has been the subject of contentious debate. Advocates for a strict separation of church and state believe that it should be broadly interpreted, while critics think that it should be interpreted narrowly. The U.S. Supreme Court invented the Lemon test in its decision in Lemon vs. Kurtzman (1971) in order to provide clear guidance for establishment clause cases. The Lemon test set the standard for determining government entanglement with religion for over a decade after its creation. However, beginning in the 1980s, arguments that the test provided an overly broad interpretation of the Establishment Clause began to impact its use. The Lemon test’s absence has led to Supreme Court decisions that have slowly eroded the wall of separation between church and state. Justices have tried to create new tests, but they have been unable to replicate the success of Lemon. Justices have increasingly relied on subjective reasoning that has contradicted past precedent and further obscured the boundary between church and state. Their conflicting interpretations of the Establishment Clause have created questions about their abilities as decision makers. Justices’ personal biases and ideological differences can create errors in judgment thus having the potential to influence their decisions, making tests, like Lemon, essential for interpreting the Constitution. The Lemon test provides a clear and concise method that is essential for ensuring that the government and the Supreme Court adhere to a strict set of rules for interpretation of the Establishment Clause. Analysis of the Court’s decision making in Lemon v. Kurtzman (1971), Marsh v. Chambers (1983) and Lee v. Weisman (1992) highlights the strength of the Lemon test when it is used and reveals the shortcomings of Establishment Clause interpretation without it. The Supreme Court’s decision in Lemon v. Kurtzman (1971) established a comprehensive approach for the Justices to use in Establishment Clause cases. The Court ruled 8-1 that Pennsylvania and Rhode Island violated the First Amendment by providing public funds to private religious schools.1 The Court, led by Chief Justice Burger, devised a three-prong approach to determine if the states violated the Clause. The first prong of the test held that a statute must have a secular legislative purpose; the second, “the principle or primary effect must be one that neither advances nor inhibits religion;” and third, “the statute must not foster an excessive government entanglement with religion.”2 Burger relied heavily on the third prong of the test when delivering the majority opinion. In his analysis he found that since the teachers were employed by religious organizations and were a part of a system that placed religious ideas in the minds of children, a teacher would find it difficult to navigate the line between secular and religious intent.3 In order to prevent an excessive entanglement of church and state, both state governments would be forced to oversee the schools to make sure teachers did not incorporate religious ideas into the curriculum. Broida / “Church, State, and the Lemon Test” The lone dissenting opinion of Justice Byron R. White was influenced by his personal beliefs and highlights the errors in judgment that the Lemon test was created to prevent. White found fault in the Court’s decision to strike down the Rhode Island statute because he believed no evidence existed that teachers engaged in non-secular activities with their students.4 His reasoning is misguided because over two-thirds of the teachers were Catholic nuns and religious instruction was permitted.5 Even if secular teachings were a part of the curriculum, the schools were still sponsored by the Roman Catholic Church, which promotes learning through religious doctrine. Justice White continued his opinion by stating that he “cannot hold that the First Amendment forbids an agreement between the school and the State that state funds would be used only to teach secular subjects.”6 White’s subjective interpretation came into complete conflict with the Establishment Clause. The Pennsylvania and Rhode Island statutes violated the First Amendment because the laws respected a religious establishment. White’s flawed opinion emphasizes how incorporating a structured test, like Lemon, is essential for preventing a Justice’s personal bias from influencing his or her interpretation of the Establishment Clause. Despite the Lemon test’s effectiveness at countering the partiality of some Supreme Court Justices, critics believe that the test is flawed. Law author William B. Petersen argues that one of the biggest pitfalls of the test is “its assumption that a religious purpose, by itself, renders a statute unconstitutional.”7 He proposes that if a law is passed that has a religious purpose, it should not automatically be deemed unconstitutional because religious purpose does not necessarily lead to religious effect. Peterson exemplifies his point by suggesting that laws against murder and theft should be unconstitutional because those ideas are found in religious holy books.8 Peterson’s reasoning is flawed since laws against murder and theft have been included in secular governments prior to the creation of any popular holy texts. Religious organizations certainly do not hold a monopoly on human morality. Peterson’s argument misses the importance of the Lemon test’s religious purpose prong by overlooking the implications of a statute that supports the purpose of one religion over another. If a law is passed with the purpose of favoring one religion, it infringes on the First Amendment rights of those that practice all others. The design of the Lemon test not only prevents entanglement with church and state, it stops religious organizatio (...truncated)