NATIONAL FORUM OF APPLIED EDUCATIONAL RESEARCH JOURNALVOLUME 21, NUMBER 1, 2007--2008

THIRTY-FIVE YEARS OF LEMON INFLUENCE: ANALYSIS AND NATIONAL IMPLICATIONS

Robert L. MarshallWestern Illinois University

ABSTRACT

This article provides an analysis of significant challenges that have arisen over the past 35 plus years when the three-prong Lemon test has been applied to established traditional values predicated by the engrained religious heritage of the United States coupled with the diversity of religion and social mores across the nation. Even with criticism and challenges along the way, the Lemon test has remained the litmus test influencing public school religion law challenges for almost four decades.

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 involved

two state statutes, Pennsylvania and Rhode Island, which provided for state educational funding aid to church-related elementary and secondary schools. The issue litigated was whether state funding provided to parochial schools violated the establishment clause of the first amendment to the United States Constitution. Implications of the ruling have been far reaching over the last 35 years and continue at the present time. Lemon v. Kurtzman has literally been cited thousand of times in other cases over the past 35 years. In only two instances since 1971, the United States Supreme Court in the land veered away from the ruling and the three-prong test established by the case.

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The unparalleled three prong test emerged from the ruling and has become the jurisprudential precedent for cases to follow in evaluating the establishment issue related to religion in public schools across the states. Litigation and the ultimate decision of the case yielded the three prongs known as the “Lemon test”. The Lemon test directs the courts to find that a statute, policy or practice does not violate 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 a majority of the Court has shifted to an accommodationist stance in recent decisions (Levy 1994; Choper 1995). Prominent First Amendment scholar Jesse Choper has labeled the Lemon test as ‘‘the governing approach to judging Establishment Clause issues’’ (Choper 1995:165). Futhermore, the Lemon test enunciated in the majority opinion in Lemon v. Kurtzman has served to provide a framework for the decisions in Establishment Clause cases decided over the last 35 years (Kritzer & Richards, 2003).

In recent times the U.S. Supreme court has expanded the limits of the Lemon test and more broadly accepted the constitutionality of some policies and practices that were considered inappropriate in previous times. One such example is the ruling in Mitchell v. Helms (530 U.S. 793, 2000) that approved the practices of public school teachers providing services to parochial school students along with funding for computers at the same institutions. This decision truly stretches the limits of the Lemon test and expands the limits while opening the door for litigation questioning previous decisions related to services and assistance for parochial schools.

Currently, a shift in the political climate of the Supreme Court has fostered the initiative to possibly amend or abolish the Lemon guideline and favor a more flexible approach to resolving establishment clause issues. The Court has only deviated from the

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Lemon test a limited number of times. One such case was Board of Education of Kiryas Joel Village School District v. Grumet (512 U.S. 687, 1994) which struck down the establishment of a public school district to educate special education children of a religious enclave of Satmar Hasidim, practitioners of a strict form of Judaism because it only served one religious group or sect. Again in Roseburg v. University of Virginia (515 U.S. 819, 1995), the Supreme Court found that student activity funds could not be denied for a religious magazine since it would constitute impermissible viewpoint censorship in violation of the First Amendment free speech clause (Kemmer, Walsh & Maniotis 2005). Shortly after these two decisions, the court returned to the Lemon guidelines in Agostini v. Felton (522 U.S. 803, 1997) upholding the practice of providing instruction by public school teacher to parochial school educationally disadvantaged children which overruled the previous decision prohibiting the same practice in Aguilar v. Felton (473 U.S. 402, 1985). All things considered, until the Supreme Court establishes a more applicable set of guidelines that more effectively assess or determine constitutionality of cases, the Lemon test remains as the precedent utilized by the justices.

Lemon Test Applications

Over the past 35 years, the Lemon test has been applied in a plethora of cases involving an array of religious issues in district courts, courts of appeals, and the United States Supreme Court. Throughout this period of time, the Court has applied the three-prong test rigidly at times and more broadly in others even reversing its own decisions in a few instances. The following list represents some of the key relevant issues where the Lemon v. Kurtzman case influence and the three-prong test have been applied:

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◦ 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 the Supreme Court might be headed with application of the Lemon test guideline, justices’ opinions were gleaned from the Westlaw Campus Research Database. From this source a number of opinions emerge with some common theme in the direction the Court may be headed in future decision. Both dissenting and concurring decision indicate a change in the climate of the high Courts evaluation and decision process for cases related to establishment issues.

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In Wallace v. Jaffree (472 U.S. 38, 1985), Chief Justice Rehnquist 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

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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

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signpos[t]." Mueller v. Allen, (463 U.S. 388, 394, 1983) , citing Hunt v. McNair, (413 U.S. 734, 1973); Larkin v. Grendel's 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 District V. Doe (530 U.S. 290, 2000) Justice Rehnquist writes the following dissenting opinion:

We do not learn until late in the Court's opinion that respondents in this case challenged the district's 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 district's policy may be applied in violation of the Establishment Clause, but whether it inevitably will be.

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The Court, venturing into the realm of prophecy, decides that it "need not wait for the inevitable" and invalidates the district's 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 Lemon's 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 Court's 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 Lemon's factors stringently and ignores Bowen's 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., Lamb's 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 Lemon's "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

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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 Lemon's entanglement test is merely "an aspect of the inquiry into a statute's 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 district's 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 Court's reliance on each of these conclusions misses the mark.

In Aguilar v. Felton, Sandra Day O’Connor provides an addition to Judge Rehnquist’s dissenting opinion related to the Lemon test 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

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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 Court's 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 opinion with 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)

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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 Clause's 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

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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’Connor writes 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 Court's 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

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presumption, which may be overcome by a showing of compelling purpose and close fit, that the challenged government conduct constitutes an endorsement of the favored religion or a disapproval of the disfavored.

In this case, as even the District Court found, there is no institutional entanglement. Nevertheless, the appellees contend that the political divisiveness caused by Pawtucket's display of its crèche violates the excessive-entanglement prong of the Lemon test. The Court's opinion follows the suggestion in Mueller v. Allen, 463 U.S. ----, ----, (1983), and concludes that "no inquiry into potential political divisiveness is even called for" in this case. Ante, at 1364. In my view, political divisiveness along religious lines should not be an independent test of constitutionality.

Although several of our cases have discussed political divisiveness 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 an independent ground for holding a government practice unconstitutional. Guessing the potential for political divisiveness inherent in a government practice is simply too speculative an enterprise, in part because the existence of the litigation, as this case illustrates, itself may affect the political response to the government practice. Political divisiveness is admittedly an evil addressed by the Establishment Clause. Its existence may be evidence that institutional entanglement is excessive or that a government practice is perceived as an endorsement of religion. But the constitutional inquiry should focus ultimately on the character of the government activity that might cause such divisiveness, not on the divisiveness itself. The entanglement prong of the Lemon test is properly limited to institutional entanglement.

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The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government's 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

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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 test came from Justice Scalia in his concurring opinion in Lamb's Chapel v. 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 Lamb's 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 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 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 creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so.

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The secret of the Lemon test's 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.

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Analysis of Lemon by Law Scholars

Douglas Laycock, Alice McKean Young Regents Chair Emeritus at the University of Texas Law School in Austin, Texas, analyzed the historical pathway of the three-prong test in “Survey of Religious Liberty in the United States” and Establishment Clause cases and found that it has “not produced coherent results” but has “produced distinctions that do not commend themselves to common sense” (Douglas, 47 Ohio St. L. J. 409, 446, 1986). The following is a quote from his Ohio State Law Journal report from a symposium entitled “The Tension Between the Free Exercise Clause and the Establishment 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.

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The Court's 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 Court's results and actually hampers understanding of the real issues.

The Honorable Kenneth F. Ripple, judge on the United States Court of Appeals for the Seventh Circuit since 1985, published an article in 1980 entitled “The Entanglement Test of the Religion

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Clauses--A Ten Year Assessment” which focuses on the final prong and how the courts have applied the excessive entanglement provision of the Lemon test. The following is a summary of his analysis of the decisions 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.

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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.

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Kenneth Mitchell Cox published a review in the Vanderbilt Law Review in October of 1984 entitled “The Lemon Test Soured: The Supreme Court's New Establishment Clause Analysis” (37 Vand. L. Rev. 1175). His analysis contends that the Supreme Court has veered away from rigorous applications of the Lemon test. The following is a quote from the conclusion of his article:

The Supreme Court's 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 Court's 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 government's routine historical recognition of religion in American society. The Court's 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 Court's idea of pointing to other, distinguishable official acknowledgements of religion does not justify the government's 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

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In the process of analyzing the cases influenced by the Lemon test along with court and judges opinions, it comes to light that the political climate could bring significant change in the not so distant future in regards to religion in public schools. The limitations of the Lemon test emerge in the analysis of the endorsements made by the lower courts. Moreover, significant challenges arise when the three-prong test is applied to established traditional values predicated by the engrained religious heritage of the United States coupled with the diversity of religion and social mores across the nation. Even with criticism and challenges along the way, the Lemon test has remained the litmus test influencing public school law challenges for over 35 years.

Recommendations

Kemmer, Walsh and Maniotis (2005) refer to a set of six guidelines developed by a coalition of seventeen religious and educational organizations about religion in public schools. The following list guidelines are suggested for public schools at the present time:

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 schools should go a long way toward minimizing the probability of costly litigation regardless or where the Supreme Court and lower courts may stand in the future on the provisions of the three-pronged Lemon test.

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