The landmark case of Lemon v. Kurtzman
was decided by the U. S. Supreme Court in 1971. For more than 50 years, federal courts have used the "Lemon Test" to assess whether actions taken by government entities are too heavily infused with or impacted by religious content or influence. The Lemon Test consists of measuring the government action against three standards:
- Does the action taken have a secular purpose?
- Does the action have the primary purpose of neither advancing nor inhibiting religion?
- Does the action create excessive government entanglement with religious practice?
The test soon developed multiple critics among the justices, who routinely criticized it in later decisions. Although the test is still applied by federal courts, there has been a gradual whittling away at its status as the preferred measure for assessing the religious elements of governmental actions. It's too early to tell for certain, but a recent decision of the court may sound the death knell for Lemon.
In May 2022, the high court decided Shurtleff v. City of Boston.
The case was brought when the Boston city officials refused to fly a religious flag on a city-owned flagpole. The city had a practice of allowing various private groups to fly their flags temporarily on city property. However, a group was denied the opportunity to fly its flag because of its clearly religious content. The group claimed religious discrimination, but the city defended its action by invoking the Lemon Test, saying that by flying the flag the city would be excessively entangled with religious practice.
The city prevailed at both the trial court and the court of appeals levels. However, the Supreme Court reversed the lower courts, and did so unanimously. In multiple concurring opinions, no fewer than four justices threw dirt on Lemon's
grave. Justice Gorsuch summed up the court's action as follows: "To justify a policy that discriminated against religion, Boston sought to drag Lemon once more from its grave. It was a strategy as risky as it was unsound. Lemon ignored the original meaning of the Establishment Clause, it disregarded mountains of precedent, and it substituted a serious constitutional inquiry with a guessing game. This Court long ago interred Lemon, and it is past time for local officials and lower courts to let it lie."
School are routinely faced with situations involving church and state issues. Moving forward, the Lemon
test is unlikely to be the appropriate standard used for determining what action to take. In fact, later this month the court will decide a case that it is likely to establish a new standard for assessing the constitutional parameters of religious expression in schools. Stay tuned!