The United States Supreme Court made a mistake; they created an unkillable monster.
In 1971, what began as a case about textbooks and government spending, concluded in a three-step test protecting the Establishment Clause rights of Americans. This test, known as the Lemon test, gave the courts three checkboxes that states must fulfill when creating legislation.
The test is as follows: the state must have a secular purpose in creating legislation; the primary effect of said legislation must not inhibit or advance religion; and there can be no excessive government entanglement with religion.
Summarized, when states are writing laws, they must have a non-religious goal, cannot aid or hinder religion too much and the legislation must not put the state too close to religion.
Numerous articles and opinions have already been written expressing frustration at the Lemon test. Even the modern Supreme Court agrees that the test is messy.
Jakob Miller—a Political Science professor at Taylor—said, “it (Lemon test) is highly subjective in nature…. What is an ‘excessive government entanglement?’”
It doesn’t take an expert like Miller to understand that excessive government entanglement is not a clearly defined phrase.
For example, Indiana’s legislature cannot build an Anglican Church in downtown Indianapolis. That policy would fail all three steps of the Lemon test.
But what if the Minnesota legislature decided to provide free transportation to all educational facilities, religious or secular? The state has a non-religious purpose: education. The primary effect is smarter children, not religious conversion. Yet debate can be had on whether the government is too entangled with religion.
Before 1971, this theoretical Minnesota case was decided. Everson v. Board of Education (1947) decided that New Jersey could provide financial aid to parents of school children, regardless of school religiosity.
If Everson were to be tried again, it is uncertain how it would turn out. This is a problem.
“The point of the Court is to produce objective tests,” said Miller.
A truly objective test does not leave room for uncertainty. One of the best aspects of our legal system is that any lawyer should be able to look at a case and confidently predict the outcome. While this is easier said than done, it is the thought that counts.
In Lemon, any attempt at objectivity seems to have been thrown out the window.
Even the contemporary Court understands how bad the Lemon test is. Take Santa Fe Independent School District v. Doe (2000) for example. In this Establishment Clause case, the Court determined that having an elected student give an invocation at high school football games violates the Establishment Clause.
The Lemon test was cited a singular time. For a test that is supposed to inform all Establishment Clause decisions, Lemon isn’t even loved by its creator.
It’s almost embarrassing.
If the entity that created the Lemon test won’t even use it, there must be a problem. Finding a viable solution, however, was not easy.
Since 1971, court justices and legal experts across the country have tried to provide a better test. And each attempt has failed. In an excellent bit of writing, Justice Antonin Scalia compared the Lemon test to some unkillable ghoul.
“As to the Court’s 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…”
Grant County Judge, Mark Spritzer, along with many other scholars would call what Scalia wrote about a zombie precedent.
“Zombie precedents a lot of times is what Supreme Court scholars call those precedents that haven’t been explicitly overruled. And that is what you started to see with Lemon before Kennedy,” explained Spritzer.
Kennedy?
Only two years ago the Supreme Court heard Kennedy v. Bremerton (2022)—another case involving prayer at football games. Like a marriage between one of the Ghostbusters’ proton packs and a kitchen juicer, SCOTUS may have finally put the citrus ghoul to bed.
Kennedy didn’t just kill Lemon though—it replaced it entirely. The Supreme Court put a silver spear in the zombie and hired a guard for the grave.
“It (the Kennedy test) is a history and tradition type of test…in essence, it’s an originalist perspective,” said Spritzer.
That phrase—originalist perspective—is one of those phrases deeply embedded in the legal lexicon.
Imagine Congress in the summer of 1789. The writers of the Bill of Rights are gathered in a hot, stuffy room deciding how best to protect the religious freedom of the infant United States. Would they agree that free busing to religious schools is allowed?
That is the originalist perspective.
“It’s going back to the original intentions of the framers,” explained Spritzer.
To some legal experts, the Kennedy test and the originalist perspective is a wonderful change of pace. Jeremy Dys, the Chair of Religious Institutions at the First Liberty Institute loves the Court’s new standard.
“The Supreme Court had to know all the facts of the situation in the Lemon test…The Kennedy test gives us (lawyers) ample opportunity to present facts.”
In other words, the Lemon test was all about the situational context—which differs from case to case. The Kennedy test revolves around any hard evidence of traditional or historical significance.
Let’s say a North Carolina law prohibits homeless people from sleeping in privately created refuges. Soon after the law’s passage, a church is fined for allowing a man to sleep in the sanctuary. Under the new Kennedy test, this North Carolina law would fail.
A sanctuary is defined as a place of refuge. Years of church history convey that it was no accident the church calls it a sanctuary.
Under Lemon, this theoretical case is impossible to predict.
To Dys, the Kennedy test is a lively replacement for the ghoulish Lemon test. Spritzer, while agreeing that Kennedy is an upgrade, is slightly more cautious.
“We (lawyers and judges) are not historians.”
If Kennedy intends to use history as a metric, then both lawyers and judges must obtain a deep understanding of the past. All legal experts will have to become historians.
Adding history to an already packed law school curriculum isn’t the only downside to the Court’s new test. The framers had no concept of the Internet. Judges across the nation now must use the context of 1787 to decide if online churches can be regulated.
However, it may be better that we are left with judges as historians. While the Supreme Court’s Establishment Clause legal philosophy might force lawyers to study more history, at least the loathsome Lemon test is dead—for now.
