It’s been a year of carnage by the ultra-extremist majority that has seized control of the U.S. Supreme Court. While the high court’s gleeful murder of the constitutional right to abortion has created the most chaos, the court this year also engaged in much outright butchery of the First Amendment’s Establishment Clause, which separates religion from government.
Among the high court’s victims was a legal analysis known as “The Lemon Test.” The Lemon Test demise deserves to be remembered and mourned, as does the man for whom it was named. Alton Toussaint Lemon, an honorary director of the Freedom From Religion Foundation, died in 2013, and was thus spared the knowledge that the eponymous “Lemon Test” was cursorily overturned this year. Born in 1928, Alton Lemon grew up in Atlanta, played on the same basketball team as Martin Luther King Jr and became an aerospace engineer for the Naval Air Development Center in Pennsylvania. He also worked as an automotive design engineer at the Aberdeen Proving Ground in Aberdeen, Md. He had additionally worked as an Equal Opportunity Officer for the U.S. Department of Justice.
He had served in the U.S Army and saw duty in the Korean War. He was a remarkably generous, community-oriented individual, for example serving as both president and vice president of the Philadelphia Ethical Society, was active in the NAACP, and was on the board of the Parents Union for Public Schools. He was married to Augusta Lemon for more than 50 years, and they had a son, Anthony.
As a member of the American Civil Liberties Union, he volunteered to challenge a Pennsylvania law, the first such law in the nation providing public taxpayer funds to teach secular subjects. Mr. Lemon volunteered to challenge that law as a taxpayer — when such challenges were possible — and the historic decision against such funding Lemon v. Kurtzman (1971), bears his name.
The decision famously codified existing precedent on the Establishment Clause into an analysis known as the “Lemon Test.” This was not new law, per se, but a noble attempt to clarify and make the Establishment Clause idiot-proof. The Lemon Test held that if any of its three prongs were violated by an act of government, it was unconstitutional, requiring that:
1) “It must have a secular legislative purpose.
2) Its principal or primary effect must neither advance nor inhibit religion.
3) It must not foster excessive entanglement between government and religion.”
It is noteworthy to point out that coercion, although making an unconstitutional action worse, was not required to find an act or statute unconstitutional.
In the 1984 case, Lynch v. Donnelly, Justice Sandra Day O’Connor first proposed a “clarification” of the Lemon Test, called the Endorsement Test, which asked whether the government has acted with the purpose or effect of conveying its endorsement or disapproval of religion. While O’Connor’s test was not as strong or far-reaching as the full Lemon Test, O’Connor’s famous explanation has been pivotal in explaining the purpose of the Establishment Clause: She asked whether the act 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. Those ringing words have appeared in so many legal complaint letters by FFRF, and so many judicial rulings in our favor.
The late Justice Antonin Scalia was among arch-conservative justices who despised the Lemon Test, describing it thusly: “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our establishment clause jurisprudence once again, frightening the little children and school attorneys.” While the Lemon Test itself had not been invoked explicitly by the court for many years, with arch-conservative justices continually taking potshots at it, its principles in one way or another had generally held.
But in the Kennedy v. Bremerton case decided on June 27, the Supreme Court majority killed off the Lemon Test and the Endorsement Test. The majority replaced these tests, standing for stalwart principles to protect freedom of conscience from the tyranny of government-fostered religion, with a troubling new “history and tradition test.” It also added a requirement that “coercion” be proved.
Adding insult to injury, Justice Neil Gorsuch, writing for the majority, casually croaked the Lemon Test, devoting only a partial sentence to its slaughter, saying merely that “this court long ago abandoned Lemon and its endorsement offshoot.”
The decision in Bremerton in favor of an ostentatiously prayerful school coach, while unfair and untrue, does far less harm than the overthrow of the Lemon and Endorsement Tests, the adoption of the arbitrary “history and tradition test,” and the coercion requirement. The ruling strikes a blow against the rights of conscience by an ultraconservative Supreme Court hell-bent on privileging religion. The extremist majority has signaled its hostility to more than 75 years of Supreme Court precedent ensuring that a captive audience of public school students are free from religious indoctrination, ritual and coercion.
Constitutional precedent has been wiped out in the blink of an eye, and unfortunately, more such assassinations appear to be in store. As we prepare in the new year to fight for court reform, integrity and expansion, let us end the old year by saluting Alton Lemon, the Lemon Test and O’Connor’s Endorsement Test, which did so much in our nation’s last half century to buttress rights of conscience and secure our secular democracy.
