Lockean

     The Supreme Court makes decisions that often spark heated debate due to the precedent that these decisions set. One such case, Lemon v. Kurtzman 403 U.S. 602 (1971), not only set the precedent on how other Establishment or Free Exercise Clause cases are decided as it pertains to questions of state and religion through the Lemon Test but it has brought into question the very foundation of the First Amendment and the original intent of the separation between church and state.  Today, some argue that the first prong of the Lemon Test is inadequate in deciding Establishment Clause cases and that it should be abandoned for a better test focused on “coercion and endorsement” (Blackman 2009).  Others argue that the test goes too far and does not promote religious freedom but rather adversely affects it (Belcher 2009).  On the contrary, the Lemon Test had its purpose and still does. It should be seen as not only a building block establishing a foundation for future cases in changing times just as those cases before it but also as the insulation protecting an insular minority’s fundamental rights from “popular opinion”.

     Historically, the founding fathers of the Constitution wanted to ensure that the newly formed union would be free from a nationally supported religion, such as the Church of England, at a minimum.  With that in mind, they established the First Amendment stating, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.  However, debate continues today as to whether or not the founding fathers intended the First Amendment to omit religion from government completely arguing that our nation was considered, and still is, a “Christian Nation”.  The argument made by Thomas Jefferson and James Madison suggesting the need for separation between church and state as necessary is often ignored.  Equally ignored is the fact that many of the founding fathers were not theist but deist in belief.  The Court has struggled with these ideas behind their intent while trying to balance the law with public opinion and politics.

     While there have been many cases under the Establishment Clause, one case in particular, is often incorrectly cited when arguing the intent of the founding fathers but needs to be mentioned none the less.  The case, Holy Trinity Church v. U.S. (1892), is often cited as proof that the Court upheld the founding father’s intentions of keeping the nation a “Christian Nation”.  This distorted and far reaching interpretation had nothing to do with the case and the case had nothing to do with religion but has been pulled for “sound bite” purposes throughout history to support the argument of governmental support of religious functions to a certain extent.  This is worth mention as it plays into the sociological jurisprudence of not only the high court but also the lower courts in which original arguments are brought.  Further, it supports the idea that mainstream society accepts the notion that we are a “Christian Nation” and therefore ruling any other way would be un-American.

     Interestingly enough, actual cases brought to the high Court regarding the Establishment Clause didn’t start until the 1940’s which followed on the back of the increasing growth of government and the Court’s decision to focus on fundamental rights and insular minorities.  However, this idea of “fundamental rights and insular minorities” came at a time when the United States was under great pressure to protect itself from the enemies of war.  The Second World War piggy backed by the Red Scare validated the idea that while fundamental rights were important, the protection of American soil and democracy trumped individual freedoms.  The Court’s focus was centered on the First Amendment and freedom of speech issues or conspiracy rather than the Establishment Clause.  The Court’s struggle with the balance of individual religious rights versus the protection of democracy could be seen through decisions of the court that were often close to unanimous as in the Gobitis v. Minersville School District (1940) case in which the court ruled that the school district’s requirement for all children to salute the flag was constitutional, giving no regard to personal beliefs.  The Court continues to struggle with how to define and build on personal freedoms in the cases of Carnwell v. Conneticut (1940) in which the Court determines that the “First Amendment embraces two concepts, freedom to believe and freedom to act”(Mount 2009) and the case of West Virginia School Board v. Barnett (1943) in which the Court reverses the idea that the First Amendment protects only beliefs and not actions.

     It wasn’t until 1947 that the court started to see a deluge of religion cases starting with Everson v. Board of Education (1947), setting a foundation for the Lemon Test.  Here the court held that reimbursing parents for transportation expenses to parochial schools did not violate the Establishment Clause. However, it was less than a unanimous vote and very clear that if the state had reimbursed the school for transportation the Justices would have found this a violation.  The 5 to 4 vote centered on the argument of a secular purpose related to getting children to school safely versus the “wall of separation” that was argued by Jefferson and Madison.

     The controversy of religion and schools escalated and cases continued to produce very different results based solely on the minutia of the facts.  Just as with reimbursing parents versus reimbursing the school, the court found that bringing religious leaders into the public school to teach violated the Establishment Clause yet allowing students time out of school to go to religious teachings did not (Zorach v. Clauson 1952).  Other cases have shown that the devil’s in the details.  For example, Engel v. Vitale (1962) established that prayer in school violated the Establishment Clause, yet since, there have been many school prayer cases debating the question of the details such as “silent prayer”, prayer for special occasions and opt outs.  This controversial issue has left the Court walking a tight rope and judging on the side of caution. The Court has followed a line of reasoning showing a willingness to strike down anything that may be seen as either coercive or “as a state endorsement of religion.” (Linder 2009).

These cases all lead to the crescendo of the “Lemon Test” established in Lemon V. Kurtzman (1971). It was here that the Court wrote:

“In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement of the sovereign in religious activity."

“Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years.  Three such tests may be gleaned from our cases.  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." (Mount 2009)

The facts of the Lemon case are less important than the historical precedent this three-prong test has set.  This test has been the foundation of all Establishment Clause cases and is still in use today. However, critics of the Lemon Test have grown.

     The Lemon Test and the debate around it that has ensued supports the fact that the Constitution is a living document and the Court will continue in flux between the upholding the ideals of the founding father’s balanced by public opinion and politics of the time.  This can be seen through the Supreme Court Justice’s over the years who have argued that the test, and more specifically the first prong of the test regarding “secular purpose”, has been largely left undefined and ambiguous which has lead to plurality in decisions.  One such Justice, Justice Scalia, has been one of the most vocal in regarding the denouncement of the Lemon Test.  In his dissent of McCreary County v. ACLU, he criticized the majority for “ratchet[ing] up the Court’s hostility to religion” and with his concurring opinion in Lambs Chapel he castigated the “use of the majority opinion as a manipulation of the Lemon test to fit whatever result the Court aim[s] to achieve” (Blackman 2009).

     His criticism of the “secular purpose” is not unwarranted as this first prong has been the “loophole” for legislation and the advancement of political agenda. Politicians are acutely aware that the Court relies on legislative history when analyzing “purpose”, thus they “have strong incentive to manipulate the legislative history so a future case can be resolved in accordance with their personal views” (Blackman p 64). Justice Souter’s acknowledgement that “savvy officials can disguise their religious intent so cleverly that the objective observer just misses it” (Blackman p 64) proves that more than one sitting on the bench of the high Court is aware of the test’s weaknesses.  This awareness has lead to the high Court showing acceptance for the “endorsement test” proposed by Justice O’Connor and the “coercion test” outlined by Justice Kennedy.

In Lynch v. Donnelly (1984), Justice O’Connor’s understanding of the Establishment Clause was highlighted when she wrote:

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community.  Government can run afoul of that prohibition...[by] endorsement or disapproval of religion.  Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.

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.

     The argument is not that the endorsement test is a replacement for the Lemon Test but rather clarification of the “purpose” prong.  The high Court then established the “coercion test” in the case of Allegheny County v. ACLU (1989) where Justice Kennedy, in his dissent, argues that “the government does not violate the establishment clause unless it (1) provides direct aid to religion in a way that would tend to establish a state church, or (2) coerces people to support or participate in religion against their will” (Haynes 2009). Both tests have not been fully adopted nor has the Lemon Test been fully abandoned. All three have been in use simultaneously still producing mixed results.  In particular, the coercion test has given way to relaxed rules regarding public display of religious symbols such as Nativity scenes on public property.  However, with the continued use of the Lemon Test, debate has escalated pushing for its complete abolishment and favoritism toward neutrality.

     Much of this argument comes from the practicing faithful that argue the Lemon Test adversely affects freedom of religion. In agreement with Justice Burger’s dissent in Wallace v. Jaffree (1985), many will argue that "If the government may not accommodate religious needs when it does so in a wholly neutral and non-coercive manner, the 'benevolent neutrality' that we have long considered the correct constitutional standard will quickly translate into the 'callous indifference' that the Court has consistently held the Establishment Clause does not require” (Belcher 2009). 

They stand by the majority opinion of Lynch v. Donnelly wherein the majority wrote:

“[T]he Court's extended treatment of the 'test' of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) suggests a naive pre-occupation with an easy, bright-line approach for addressing constitutional issues.  We have repeatedly cautioned that Lemon did not establish a rigid caliper capable of resolving every Establishment Clause issue, but that it sought only to provide 'signposts ....'  [O]ur responsibility is not to apply tidy formulas by rote; our duty is to determine whether the statute or practice at issue is a step toward establishing a state religion.” (Belcher 2009)

This idea that the Court has far to long handed down decisions against the intent of our founding fathers has lead to the morphing of the Lemon Test and movement toward neutrality. However, a complete abandonment of the Lemon Test and a shift toward neutrality is dangerous and should be viewed with skepticism.

     It is often argued that our founding fathers were among the practicing faithful. However, there is clear evidence that while they had prayer and gave thanks during the establishment of our nation, they were deists.  That is, they believe in a higher power, one god, but leave behind the belief of the supernatural and dogmatic rules of the church and Bible.  Their views and guidance were based on morality of “social contract” not religion.   The idea that one must give up some freedoms to a governing authority to maintain social order was prominent.  However, this was balanced with trying to weed out the corruption of a large government intertwined with a large church and forced participation.  The founder’s intended to shift from the rigid rules of the church and allow for flexibility, some claiming that the Constitution needed to be a living document to change with time. It is clear they wanted citizens to have freedom of religion without government entanglement or endorsement.  However, did they also intend on allowing for freedom from religion?

     By moving toward a position of neutrality we are in danger of creating a faith-based problem of epic proportions.  The Court’s view of neutrality is “not favoring one religion over another and not favoring religion over non-religion and vice versa” (Haynes 2009).

     We live in time where freedom from religion is just as important as freedom of religion. A neutrality stance will help to push faith-based initiatives through legislation.  This is done through the political process and legislative history.  The Court’s continued movement toward neutrality allows for the manipulation of this system.

     In the year 2007, one religious survey questioned 35,000 people about their religious affiliation. 76.2% of those surveyed reported being Christian while 16.1% reported being non-religious.  These numbers have carried since 2001 when another studied reported surveying 113,000 adults with 76.5% responding that they were Christian and 13.2% responded as non-religious. It is clear that the protection of the “insular minorities” or non-religious rights is at stake.  The previous president Bush, with his faith-based initiatives, backed by Republicans and the Christian majority is intent at pushing the notion of a “Christian Nation” and policies of “neutrality”.  Abandoning the precedents set by the Court through the building blocks of the Lemon Test, endorsement and coercion only reinforce the argument of political manipulation of the Court and the Court’s pressure to rule under the sociological jurisprudence doctrine.  The Court must consider the new insular minority when weighing the constitutionality of religious questions of the time.

     The Lemon Test, while not perfect, is the insulation protecting the religious minority.  If it were to be completely abandoned, the questions of endorsement and coercion may not be asked.  The test of “evenhandedness” allows for taxpayer money to support religious activities in round about ways.  This “evenhandedness” is anything but evenhanded based on the religious affiliations of our citizens.  The eventual manipulation of legislation and faith-based initiatives allowing for taxpayer money to be diverted to a Christian majority is more than the endorsement of one religion. Further, the funds being routed to Christian supported education will enhance the Christian learning environment.  It would not be a far stretch to say that by enhancing one learning environment, one runs the risk of “coercing”, intentionally or not, minorities to join the “establishment” for the pure fact of a better learning environment.  Thus, creating another layer of segregation in the school system adding to the issues of race and class.

     The founding father’s intent was not to move in a backward direction but to move forward, more enlightened by our history, embracing our social change and growth, allowing for further enlightenment.   Granted, the enlightenment of an educated society determined to explain the unexplained through science rather than religion was not necessarily at the forefront of the founding father’s debate.   However, it is clear that their deist beliefs were the basis of this movement and their hope that intellectuals, not religious radicals, would be the leaders of our great nation.   To abandon the Lemon Test, is to abandon the intent of the founding fathers. 

References:

Allison, Jim. “The Endorsement Test”. Retrieved November 9, 2009 (http://candst.tripod.com/tnppage/eclause3.htm

Batte, Susan. “The Supreme Court has Declared that the United States is a Christian Nation”. Retrieved November 7, 2009 (http://candst.tripod.com/tnppage/arg7.htm>)

Belcher, Fon. “Lemon Test Adversely Affects Freedom of Religion”. Retreived October 7, 2009 (http://www.belcherfoundation.org/lemon_test.htm)

Blackman, Josh. “This Lemon Comes as a Lemon: The Lemon Test and The Pursuit of a Statute’s Secular Purpose”. Retrieved November 1, 2009 (www.works.bepress.com)

Haynes, Charles and Gene Policinski. “Religious Liberty in Public Life.” First Amendment Center November 2009. Retrieved November 1, 2009 (http://www.firstamendmentcenter.org/rel_liberty/establishment/index.aspx)

Kosmin, Barry and Egon Mayer. “American Religious Identification Survey”. The Graduate Center University of New York. (2001). Retrieved November 9, 2009 (http://www.gc.cuny.edu/faculty/research_briefs/aris/aris_index.html)

Linder, D. “Exploring Constitutional Conflicts: Introduction to the Establishment Clause”. Retrieved October 15, 2009 (http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/estabinto.htm)

Mount, Steve. "Constitutional Topic: The Constitution and Religion." Retrieved October 21, 2009 (http://www.usconstitution.net/consttop_reli.html)

“Statistics on Religion in America Report”. Pew Forum on Religion & Public Life/>U.S. Religious Landscape Survey.> August 2008.  Retrieved November 10, 2009 (http://religions.pewforum.org/reports?section=a4)