by: Oliver S. Thomas

Oliver s. Thomas, A Baptist minister,

resides in Maryville, Tennessee.

Where he preaches, teaches, practices

law, and writes country music----

not necessarily in that order.

Purdy, Missouri, is a town in which Baptists are as thick as the hops Anheuser- Busch brews up the road in St. Louis, so when high school students wanted to stage a dance, concerned saints showed up at the local school board meeting with Bibles in hand and fire in their eyes. After listening to homilies on the evils of dancing, the board members—courageous politicians all—canceled the dance. The students then did what most Americans do when they feel wronged– they sued. When the dust settled, the U.S. district court ordered the school to proceed with the dance. The reason: the Lemon test.

In Douglas County, Georgia, invocations were as much a part of high school football games as blankets and hot chocolate. So when a student complained, jaws dropped; when he sued, tempers flared; and, when he won, it started a wave of protests across the country. Why did he win? The Lemon test.

In Pittsburgh, the county erected a Nativity scene. Across the street at the municipal building sat a Christmas tree, a menorah, and a banner signed by the mayor extoll-ing religious liberty. The ACLU sued, and the United States Supreme Court said the tree and the menorah stay, but the Nativity scene goes. Its reason? The Lemon test.

The Lemon test? Sounds more like something for chefs than lawyers. Yet mention the word around First Amendment experts, and they divide into warring camps: those who like it, and those who find its name an apt description of its substance (Justice Scalia has called it a “ghoul in some late-night horror movie” that haunts the Supreme Court’s First Amendment cases).

From its inception, the Lemon test has been controversial, and by the time this article is published ( LIBERTY Magazine, July-August, 1994) the Supreme Court may have decided whether Lemon should remain the standard for deciding cases under the establishment clause, be modified, or hauled out with the trash. Though the concerns are many, the big question is whether Lemon has pitted the two great constitutional principles of non-establishment and free exercise against each other.

The Lemon test. asks three questions about a challenged government action: Does the law (or other government action) have a secular purpose? Does its primary effect neither advance nor inhibit religion? Does the law avoid excessive government entanglement with religion? A negative answer to any of the questions means the act is illegal.

Yet it’s not so simple. A law, for instance, banning alcoholic beverages certainly could prohibit the religious practices of those who drink Communion wine, and thus violate the free exercise clause. Suppose, in response, the government exempted Roman Catholics and others who drink Communion wine from the law. Would this exemption meet the “secular” purpose prong of Lemon? And even if it did, wouldn’t its primary effect be the advancement of religion? Many would argue yes.

Thus, it’s this potential conflict between the two religion clauses that makes Lemon questionable to many scholars. Former Chief Justice Warren Burger once wrote that either of the two religion clauses “if expanded to a logical extreme would tend to clash with the other.” Does Lemon cause them to clash now?

No doubt, the framers did not intend that the two religion clauses cancel each other out. Thus, any proper interpretation of the establishment clause must take into account free exercise and vice versa. One possible solution lies in a correct under- standing of the word “secular” in Lemon’s first prong. A better word might have been “civic,” for some have suggested that accommodating religion is not a legitimate secular purpose. But is it?

Justice O’Connor moved the Court in the right direction in her concurring opinion in the Alabama moment-of-silence decision, Wallace vs. Jaffree, when Alabama had enacted three moment-of-silence laws, only one of which was a straight-forward moment of silence that neither encouraged nor discouraged school prayer. Justice O’Connor opined that the key to resolving any tension between the religion clauses lay in “identifying workable limits” to the government’s obligation to accommodate the free exercise of religion.

“Government pursues Free Exercise Clause values when it lifts a government-imposed burden on the free exercise of religion,” she wrote. “If a statute falls within this category, then the standard Establishment Clause test should be modified accordingly. It is disingenuous to look for a purely secular purpose when the manifest objective of a statute is to facilitate the free exercise of religion by lifting a government-imposed burden. Instead, the Court should simply acknowledge that the religious purpose of such a statute is legitimated by the Free Exercise Clause.”


Two years later a unanimous Supreme Court echoed these sentiments: Under the Lemon analysis it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their missions.” The U. S. court of appeals said it best in the Purdy dance ban case. Because the school board had been motivated almost exclusively by religion, the district court held that the ban violated the Lemon test. Its purpose was religious—not secular—and, therefore, illegal.


Yet it’s still not that simple. However much some might celebrate the students’ victory over what many would consider a silly and anachronistic rule, if the Purdy drama ended there, the rights of all Americans would have suffered, because the rights of some Americans—i.e., the religious—would have suffered. Fortunately, the court of appeals added an important balancing element to the decision: “The mere fact that ‘ a governmental body takes action that coincides with the principles of a particular religious group does not transform the action into an impermissible establishment of religion. We simply do not believe elected officials are required to check at the door whatever religious back round (or lack of it) the carry with them before they act on rules that are otherwise unobjectionable under the Lemon standards.


 This approach to constitutional analysis would have the effect of disenfranchising religious groups when they succeed in influencing secular decisions. Religious groups have an absolute right to make their views known and to participate in           public discussion of issues.” In other words, the First Amendment protects the rights of all Americans—including religious ones—and as long as some legitimate civic purpose exists for what a law might do admittedly, it was thin in the school dance ban case), that law should not be struck down, even if that law happens to coincide with religious principles. Indeed, a law isn’t necessarily un-constitutional

even if it helps make a religious organization’s work easier.


But didn’t Lemon say that a law’s primary effect may neither advance nor inhibit religion? Again, a law is not unconstitutional simply because it allows churches and synagogues to advance religion, which is their purpose. For a law to have forbidden effects under Lemon it must he the government itself that has advanced religion through its own actions. Thus, the government does not violate Lemon by declin- ing to impose a tax on religious and charitable organizations even though others may be required to pay the tax. It would be unconstitutional, on the other hand, to provide churches with cash subsidies. Government neutrality toward religion, that’s the bottom line.


Sometimes the best thing you can do for something is leave it alone. That’s the way it is with the government and religion, as the American experiment has so aptly proven. Whatever legal standard the courts use, it should ensure that the coercive power of the state is never used to inhibit or advance anyone’s religion. Properly understood and applied, the fabled Lemon test does precisely that.



Lamb’s Chapel v. Center I Moriches School District, 508 U.S 113 S.Ct.124L. Ed.2d. 352, 365 (1993) (Scalia, J .dissenting).

The Establishment Clause is the first 10 words of the First Amendment and reads: “Congress shall make no law respecting an establishment of religion

The Establishment Clause is now applied to all levels of government by virtue of the due process clause of the Fourteenth Amendment. 403 U.S. 602. Wallace v. Jaffree , 472 U.S. 38, 83 (1985) (O’Connor, dissenting).

“Corporation of the Presiding Bishop v. Amos, 483 U.S. 327,335 (1987).

“Clayton v. Place, 884 F.2d. 376, 380 (1989).

Corporation of the Presiding Bishop m Amos, 483 U.S. 327, 337 (1987)


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