Ending Lemon once and for all

Justice Antonin Scalia once compared the U.S. Supreme Court’s test for violations of the First Amendment’s establishment clause to “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” After many false starts and half-measures, the high court finally drove a stake through the beast’s heart and killed the so-called “Lemon test” once and for all as it handed down its decision last week in Kennedy v. Bremerton School District.

The First Amendment begins with what George Will once called the five most lovely words in the English language, “Congress shall make no law.” It says in fuller form, “Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof.” When our nation’s Founders wrote this portion of the First Amendment, their aim was primarily to protect the rights of the states. Virginia was home to Anglicans, Maryland to Catholics, and Pennsylvania to Quakers. Prohibiting Congress from imposing a national established church protected the right of people in each state to pursue their own common religious beliefs. Indeed, six states had their own established religions in the early days of the republic, and the last state church did not disappear until well into the 19th century.

Second, the Founding generation’s vision of “establishment” looked to the European, especially British, experience of an established state church. The king (and to this day, still the queen) was head of the Church of England and, with the prime minister, appointed bishops, a number of whom sat in the House of Lords. The Framers did not want our president picking bishops, nor were our first presidents enthusiastic to do the choosing.

From these humble origins later emerged the Lemon test, a monstrosity of enormous proportion that tried to suck all public recognition of faith into its ever-hungry maw. The ghoul was born in 1971, at the height of the Warren Court, in a case called Lemon v. Kurtzman. It set out three tests for a court to consider. Offend any one of its principles and a law should be struck down by the judges reviewing it.

The Lemon test asks first whether a law has a secular purpose, second whether its primary effect is either to advance or inhibit religion, and third whether a law excessively entangles government and religion. At first glance, these may seem reasonable, even fair questions, but in practice, they have three glaring flaws.

The Lemon test’s prongs have no relation to the clear text and history of the establishment clause. The test would render many things long accepted in our nation no longer acceptable—an easy example would be a tradition of chaplains or invocations before official sessions of legislative bodies. And it only serves to empower judges: Only they can discern a law’s purpose, decide what is its “primary effect,” and determine how much entanglement is “too much.” The test, according to Justice Neil Gorsuch in Kennedy, is ambitious, abstract, and ahistorical—none of these are compliments for a legal principle.

These errors have been evident from the start, and the test has been subject to withering criticism from justices across the ideological spectrum. Often it was downright ignored, as in the Supreme Court’s decision earlier this term concerning a Christian flag flying outside Boston City Hall (Shurtleff v. Boston).

But the court finally confronted the issue directly in Coach Joe Kennedy’s case concerning public prayer. Though the court’s majority opinion did not formally strike down the “test,” the three dissenters nevertheless describe Lemon as reversed by the majority’s holding. In its place, the court tells us “that the Establishment Clause must be interpreted by reference to historical practices and understandings.” Decisions about what does or does not violate the clause must “accord with history and faithfully reflect the understanding of the Founding Fathers.” This is where courts should always be anchored—in the text’s original meaning and its historical application.

The ghoul of the Lemon test is gone. In its place, we have a new approach that extends a respectful appreciation and benevolent neutrality toward the role of faith in American public life.