Supreme Court Partially Junks a Lemon

The Bladensburg World War I Memorial in Bladensburg, Maryland.
The Bladensburg World War I Memorial in Bladensburg, Maryland.

It’s hard to think of a more aptly named legal doctrine than the Supreme Court’s Lemon Test. Created in 1971’s Lemon v. Kurtzman, it is meant to determine when government action violates the Establishment Clause of the First Amendment. The test’s three prongs require government programs to 1) have a secular legislative purpose, 2) primarily neither advance nor inhibit religion, and 3) not create an excessive entanglement with religion. It has been the subject of almost universal scorn ever since its birth.

The first prong is vague, easy to avoid, or just wrong. You can divine a secular purpose for almost any law, and legislators who are religiously motivated can simply dissemble. It’s also not clear why or even how government officials should shed their deepest beliefs when making policy. For instance, if a Catholic legislator voted to increase welfare benefits because of her faith, that would in theory violate the secular-purpose prong. But it’s the second and third prongs that truly make the test incoherent. The only way to tell if a government program’s primary effect is to advance religion is to closely monitor participating groups, thereby creating an excessive entanglement. The court has further said that a program can violate the effects prong if a “reasonable observer” believes that the program endorses religion—a standard legal scholars have ridiculed as the “two Rudolphs and a Frosty rule.” Essentially, to avoid being successfully sued, public officials such as school superintendents and principals must make sure that any religious display is surrounded by a sufficient number of secular symbols and symbols from other faiths.

The Lemon Test’s manifold infirmities have led the court to ignore it when it is inconvenient but then invoke it when it suits their purposes. This led Justice Scalia to mock the test as a “ghoul from a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” The test is particularly frightening, Scalia noted, for school officials, who can never be certain if they have violated such an ambiguous and malleable standard. To take one obvious and vexing example, school officials can never be sure if their celebration of the winter solstice is sufficiently diverse to avoid litigation.

School officials may now be able to rest a bit easier, as today, in its decision in American Legion v. American Humanist Association, the Supreme Court partially scrapped the test. In 1925, the American Legion erected a forty-foot Latin cross on private land to honor forty-nine men from Prince George’s County, Maryland, who had died during World War I. In 1961, the Maryland-National Capital Park and Planning Commission acquired the cross and land it sits on because they were at the middle of a busy intersection.

All was fine until 2014, when the American Humanist Association and three self-professed atheists sued, claiming that the cross violated “the founding principle of separation of church and state.” The trial court used the Lemon Test to deny this claim, saying that the purpose of the cross was to honor veterans and that its ownership and maintenance by the state was primarily intended to maintain traffic safety. In a 2-1 decision, however, a panel of the U.S. Court of Appeals for the Fourth Circuit disagreed. That court ruled that the cross violated all three prongs of the Lemon Test. The cross as a Christian symbol did not have a secular purpose, was so large that it overwhelmed other memorials at the same intersection thus advancing religion, and created an entanglement because the state maintained the cross on public property.

The Supreme Court heard the case in February. Oral argument signaled that the cross was safe. Even liberal Justice Breyer indicated that, with so much history under the bridge, tearing down the cross would be unjustified. But other justices wanted to go farther, targeting the Lemon Test itself. Justice Gorsuch called Lemon a “dog’s breakfast” and Justice Kavanaugh pointed out that the court’s intermittent use of the test indicated that it was time to simply abandon it.

The court came close to doing so today in a 7-2 decision. Writing for the majority, Justice Alito said that Lemon should not apply in cases that “involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations.” The opinion did not explicitly overturn Lemon but clearly sought to confine it sufficiently to make it unclear where it could still apply. Justice Breyer wrote a concurring opinion joined by Kagan. And Justice Kagan wrote an opinion concurring in part but explicitly declining to sign on to the parts of the decision most critical of Lemon. The ever-cautious Chief Justice Roberts joined Alito’s decision in full but was otherwise silent. One suspects that his minimalism was at work in the case. By not explicitly overturning Lemon, the court preserved a 7-2 majority lending the decision perhaps more authority. At the end of the day, however, only three justices—Kavanaugh, Thomas, and Gorsuch—clearly indicated that they would completely abandon the test.

Since the court did not explicitly overturn Lemon, its status for Establishment Clause cases involving education is uncertain. However, for school officials, this decision should be a welcome development. It should now be far more difficult for them to be sued under Lemon, particularly when they can claim that the displays or ceremonies in question have historical significance. To the extent that Lemon still applies, it is most likely to be invoked in cases involving government financial support for religious schools. But other free exercise issues currently under review by the court may soon erode whatever bite Lemon still has in that arena.

In short, as Justice Gorsuch put it, the Lemon Test appears to have been “shelved.” However, being shelved is not the same thing as being overturned. As Justice Scalia pointed out, Lemon has been a “docile and useful monster” and that explains why it has so often been resurrected. It is unlikely that there are five justices on the court willing to invoke it to strike down a government program bearing on religion. But absent a public execution, followed perhaps by a cremation on the steps of the Supreme Court building, one can’t be confident that it will not come to life again.

Joshua Dunn is professor of political science at the University of Colorado–Colorado Springs.

This article appeared in the Winter 2020 issue of Education Next. Suggested citation format:

Dunn, J. (2020). Supreme Court Partially Junks a Lemon: American Legion Cross Case May Make It Harder to Sue Schools over Religion. Education Next, 20(1), 6-7.

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