Washington, DC, USA - June 9, 2014: The seats for the nine powerful judges of the Supreme Court ... [+]
As part of their decision on Kenedy v. Bremerton School District (the praying coach case), the Supreme Court formally threw out the Lemon Test. So what was the Lemon Test, and who will miss it now that it’s gone?
The Lemon Test first emerged in 1971 in the matter of Lemon v. Kurtzman. It is a test that used three prongs to help a court determine if the Establishment Clause of the First Amendment had been violated or not. The test concluded that the government has not violated the First Amendment if its actions
- Have a secular, non-religious purpose
- Do not advance or inhibit a religion
- Do not promote any extreme entanglement with religion on the government’s part.
Lemon was almost immediately criticized and tweaked. In 1984, Justice Sandra Day O’Connor “clarified” the test with the idea of endorsement, and her endorsement test essentially supplanted the Lemon test. That in turn was later pushed aside by testing for “coercion,” which even more recently gave way to the “historical” approach.
I asked Derek W. Black, professor of law at the University of South Carolina and author of Schoolhouse Burning, about the Lemon Test and the Kennedy decision; he wrote, “It clearly takes the Lemon Test off the board, but no majority of the Court had been willing to apply Lemon for a decade or two anyway. So it makes explicit what has been implicit.”
While some have been concerned about the court throwing out Lemon, that test appears to have already been a dead issue. What is more significant is what they have held up in its stead. From the decision:
In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.“‘[T]he line’” that courts and governments “must draw between the permissible and the impermissible” has to “‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’”
As with recent decisions about gun control and abortion, the court is looking to early U.S. history for its guidance. That suggests problematic findings in the future; after all, historical practices and understandings familiar to the founding fathers would include education only for white males, and only for a few years. How that perspective will help inform any decisions about 21st century public education remains a mystery for the moment—other than how it opens the door for religious observance and practices by teachers while they are at work in school.
So in the end, the loss of the already-dusty Lemon Test is not nearly as significant as what the Court has offered in its place.
As Black puts it, “The real change would seem to be—not the reversal of Lemon—but going all-in on a historical approach that gives no serious attention to the real world impact that prayer and other religious activities have on the rest of the community.”
