The Fate of the Lemon Test: D.O.A. or Barely Surviving?

United States Supreme Court

United States Supreme Court justices | J. Scott Applewhite/Courtesy The Associated Press

The Supreme Court’s latest church-state separation decision may have sounded the official death knell for the court’s leading legal Establishment Clause test — the so-called “Lemon test.”

Derived from the court’s Lemon v. Kurtzman (1971) decision, the test has three parts or prongs — purpose, effects and entanglement. Chief Justice Warren Burger wrote the following passage in the Lemon case: “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.”

Though oft-criticized, the Lemon test has taken several severe body blows through the years. Most notably, Justice Antonin Scalia disparaged the test colorfully in his concurring opinion in Lamb’s Chapel v. Center Moriches Union Free District (1993): “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.”

The Lemon test also took several blows in the court’s latest Establishment Clause decision American Legion v. American Humanist Association. The decision featured seven separate opinions in a 7-2 ruling upholding the constitutionality of a religious display that featured a 32-foot high Latin cross.

In his concurring opinion, Justice Neil Gorsuch referred to Lemon as a “misadventure” and writes “[t]oday not a single member of the court even tries to defend Lemon against these criticisms — and they don’t because they can’t.” In his concurring opinion, Justice Brett Kavanaugh wrote: “And the court’s decisions over the span of several decades demonstrate that the Lemon test is not good law and does not apply to Establishment Clause cases in any of the five categories.”

Justice Samuel Alito, who wrote the court’s majority opinion, was not as harsh but emphasized that the test “presents particularly daunting problems” regarding religious display cases.

With the vituperative criticism, perhaps the Lemon test is dead. Or is it? Justice Alito noted the criticism of the test from court members, scholars and others, but did not say it was flatly overruled for all types of Establishment Clause cases. Furthermore, Justice Elena Kagan, in her concurring opinion, praised the “test’s focus on purposes and effects” as “crucial in evaluating government action in this sphere.”

Don’t be surprised if some lower courts still use the Lemon test in certain types of Establishment Clause cases.

David L. Hudson Jr. is a Freedom Forum Institute Fellow for First Amendment Studies, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).

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