High-Stakes Test The Supreme Court and the Future of Church-State Separation

The name Alton Lemon may not ring any bells for you, but it should.

Lemon, who died on May 4 at age eighty-four, was the lead plaintiff in an important 1971 Supreme Court case dealing with the separation of church and state. In Lemon v. Kurtzman, the high court struck down programs in Pennsylvania and Rhode Island that diverted taxpayer money to private religious schools. The justices also fashioned a legal test that continues to shape church-state law: the Lemon Test.

I’m not a lawyer and don’t want to bog anyone down in courtroom jargon, but it’s important to know a little about this test and how the court has applied it. In a nutshell, the Lemon Test has three prongs. The Supreme Court ruled that a law violates church-state separation if any one of its prongs is violated; that is, if:


  • The law lacks a valid secular purpose;
  • The law has the primary effect of advancing or inhibiting religion;
  • The law fosters excessive entanglement between church and state.

You can tell that Lemon is a great test because the religious right and the Catholic hierarchy can’t stand it. Indeed, Lemon would have resulted in a high and firm church-state wall—if it had been followed.

Unfortunately, it wasn’t. During the presidencies of Ronald Reagan and George H.W. Bush, the Supreme Court began to change. Reagan appointed Antonin Scalia to the court, a man who made no secret of his hatred for the Lemon Test. In a 1993 decision, Scalia went so far as to call it “a ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried.”

Reagan’s other high court appointees—Sandra Day O’Connor and Anthony M. Kennedy— were critics of the test as well, as has been Bush appointee Clarence Thomas. O’Connor and Kennedy were never as vociferous as Scalia. O’Connor tried to find middle ground by proposing a replacement standard—the Endorsement Test. O’Connor’s test is pretty much what its name suggests: Any government action that amounts to an endorsement of religion is a violation of church-state separation.

But O’Connor’s Endorsement Test failed to catch on with a majority of justices. At the same time, the Lemon Test was never explicitly discarded. The test has been significantly eroded at the high court, especially in the area of government tax aid to religion, but on paper it’s still good law. Lower courts invoke it frequently.

That may soon change. The Supreme Court recently announced that it will hear a case challenging the use of mostly Christian prayers before meetings of the Town Board of Greece, New York. (I know more than a little about this case, since it’s being sponsored by Americans United.) Some legal commentators are speculating that the high court may use the case to modify Lemon or even devise an entirely new test. Others believe the court won’t go that far, enabling Lemon to remain on judicial life support.

The Supreme Court remains sharply divided on church-state issues and other matters of social policy. Most rulings these days are 5-4. A retirement of just one member of the conservative bloc could shift the balance. Until that happens, we are fated to continue grappling over these issues.

This is perhaps the worst possible time for the Supreme Court to be toying with a case that could open the door to majority rule on religious matters. The nation is becoming more diverse by the day. And it isn’t just a case of there being more non-Christians; there is great diversity among the Christian sects as well.

Even as diversity explodes, some seek to align government with specific versions of faith. The message sent here isn’t even subtle: When government bodies choose to open their meetings with prayers, they make it clear that a specific religious expression is the favored faith of the community. If you belong to it, you are an insider. If you don’t, you are at best a second-class citizen who may be extended—if you’re lucky—a type of grudging tolerance.

Such a system will not serve our nation well as we move toward a more pluralistic, diverse society. Indeed, it will quickly become an anachronism as Americans of many faiths, and those of no faith, seek to live side by side in peace.

The court must recognize what would seem to be an obvious feature of U.S. political life: the idea that all citizens stand equal before their government, no matter what they believe about religion. No American is “more equal” because he or she has adopted the theological views the state looks upon with favor.

Nor should any American be compelled to participate, in any way, in religious worship as the price of interacting with government at any level. Individual members of a city council, county commission, state legislature, or Congress have the right to pray individually and privately when and where they see fit. They have no right to use sectarian forms of worship to speak on behalf of an entire community.

If the principles laid down in the Lemon decision had been adhered to, our nation would not be in the shape it’s in now—with more and more states adopting ill-conceived voucher plans that siphon scarce tax dollars away from public schools into the coffers of religious ones, and with “faith-based” initiatives at every level of state and federal government.

Americans are increasingly growing skeptical of laws that are anchored in theology. Witness the dramatic shift on marriage equality and the pushback against efforts by conservative religious groups to use the principle of religious freedom to limit Americans’ access to contraceptives.

More and more Americans are waking up to the fact that in a nation of increasing religious and philosophical diversity, it makes no sense to allow the government to align with any one faith, even for the purposes of a forty-five-second “solemnizing” prayer.

Ten years ago, Alton Lemon told the Philadelphia Inquirer, “Separation of church and state is gradually losing ground, I regret to say.” Lemon was right, but it’s not too late to turn the tide. The Supreme Court could take the first step by realizing that it doesn’t need to fashion another test to determine church-state violations. It simply needs to embrace the principles embedded in our First Amendment, concepts that were reflected more than thirty years ago in the famous test that bears Alton Lemon’s name.