The Lemon Test

The purpose of the Lemon test is to determine when a law has the effect of establishing religion. The test has served as the foundation for many of the Court's post-1971 establishment clause rulings. As articulated by Chief Justice Burger, the test has three parts:

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."

According to separationist scholars Barry Lynn, Marc Stern, and Oliver Thomas, the fact that a law may have a "religious purpose or be motivated by religion does not mean it is unconstitutional as long as it also has a bona fide secular or civic purpose" (The Right to Religious Liberty, p. 3). Similarly, "a law that has a remote or incidental effect of advancing religion is not unconstitutional as long as the effect is not a 'primary' effect" (p. 3). Finally, the Court has allowed some entanglement between church and state, as long as this entanglement is not "excessive" (p. 3). Hence, the Court has built some leeway into the test so as not to invalidate laws that have only remote connections to religious practice. This is not, in other words, the work of a Court that was hostile to religion. On the contrary, Justice Burger, a Nixon appointee, is generally reckoned as a conservative on social issues.

We note also that the Lemon test is squarely grounded on the principles articulated in Everson v. Board of Education. Accomodationist legal scholar Stephen Monsma, for example, notes that Burger's opinion is:

Deeply embedded in...the sacred-secular distinction and the Supreme Court's evaluation of the state's attempts to separate out the two and subsidize only the latter. His opinion noted that at the trial-court level several teachers had testified "they did not inject religion into their secular classes." And the District Court found that religious values did not necessarily affect the content of secular instruction. Burger agreed, but made the additional, crucial observation that "the potential for impermissible fostering of religion is present." He then went on to conclude that under such circumstances state attempts to assure a strict separation of the sacred and the secular would require continuing state administrative supervision and surveillance, resulting in state entanglement with religion (When Sacred and Secular Mix: Religious Non-Profit Organizations and Public Money, pp. 32-33)

The Lemon test has not escaped criticism. Many scholars (including separationists Leonard Levy and Donald Laycock) have argued that the test is unduly subjective and internally consistent, and it's usefulness has been questioned by a majority of the sitting Justices. Still, as noted by Monsma,

...[the test] has not been formally overruled and the basic principles on which it rests--no-aid- to-religion and the sacred-secular distinction--still form the core of what is the dominant line of reasoning dealing with public funds going to religious nonprofit organizations (p. 33)