Lemon--Nothing But Problems 1995 by Brent G. Eilefson

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . First Amendment to the Constitution.

The constitutional neutrality imposed on us is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation. Sherbert v. Verner (Harlan, J., dissenting).

It is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, `it is proper to take alarm at the first experiment on our liberties.' Abington v. Schempp.

I. INTRODUCTION

Throughout the history of Establishment Clause jurisprudence, the United States Supreme Court has confronted a recurring and problematic issue: How, exactly, do we approach Establishment Clause controversies? This question was thought moot with the Court's June 28, 1971 decision in Lemon v. Kurtzman, where the Court established a three-prong test to determine whether an Establishment Clause violation existed. While Lemon was initially hailed as a synthesis of previously established Court rulings, in recent years the Lemon panacea has come under intense, if not withering, criticism. Indeed, no less than six of the current justices sitting on the bench have taken their shots at Lemon. Michael Stokes Paulsen, Associate Professor of Law at the University of Minnesota Law School, in an article appearing in the Case Western Reserve Law Review, went so far as to proclaim that Lemon is Dead.

While it is true that many Supreme Court justices and commentators wish that Lemon were in fact dead, the opposite is presently the case. While assailed by most as creating more confusion than it clears, no majority of justices has combined to put the Lemon test to rest. As recently as 1992, in Lee v. Weisman, the Supreme Court resisted the recommendation of the United States Solicitor General that Lemon be scrapped. The Court did not, however, apply the three-prong Lemon test in Lee. As a result, many Court observers, and Justices, felt that Lemon had breathed its last.

Alas, such a fate was not reserved for the venerable Lemon.

The Court resuscitated Lemon on June 7, 1993 in Lamb's Chapel v. Center Moriches Union Free School District, confounding both critics and noncritics alike. Then, adding to the morass, the Court in Zobrest v. Catalina Foothills School District, a decision published eleven days after the Lamb's Chapel decision, decided an Establishment Clause case without even mentioning the Lemon test. In Board of Education of Kiryas Joel Village School District v. Grumet, a decision handed down just over one year later, the Court again failed to utilize the Lemon test--with Justice O'Connor calling for a reevaluation of Lemon's future viability as a unitary Establishment Clause test.

The present exposition in no way claims to resolve the debate over the state of the Lemon test today. The premise upon which I will focus is that the Lemon test was not meant by its author, former Chief Justice Warren E. Burger, to be a test at all. Succeeding Courts, however, adopted the three prongs enunciated in Lemon as strictly-to-be-adhered-to factors in assessing Establishment Clause controversies. As a result, by binding themselves to a test which has inherent analytical flaws and ambiguities in each prong, the Supreme Court has produced a string of decisions which, while not necessarily wrong, are certainly lacking in doctrinal coherence. Modern developments in Establishment Clause jurisprudence have amply illustrated this doctrinal incoherence, calling forth again the very question that was once thought rendered moot by Lemon--How, exactly, do we approach Establishment Clause controversies?

My conclusion is that the 1994 Court, by looking both at the personnel on the bench and the Court's latest Establishment Clause decisions, Zobrest and Kiryas Joel, has given a good indication of just how future Establishment Clause controversies will be approached. It is my contention that the Court has finally taken former Chief Justice Burger's admonitions to heart and is now applying, if at all, the individual prongs set forth in Lemon not as a unitary, nondisjunctive test, but as the guidelines each was meant to be. Without binding itself to any rigid, uncompromising test, the Supreme Court is once again ascertaining the merits of an Establishment Clause controversy based upon the intent of the framers' of the Constitution--simply, preventing the establishment of a national religion and the attenuating fear of the use of governmental power to coerce support for that religion.

The structure of this paper is as follows: In Part II, Historical Establishment Clause Analysis, I begin with an overview of historical Establishment Clause decisions, focusing on what tests were used prior to Lemon. In Part III, The Lemon Test, the cases formulating the three prongs of the test will be examined. Part IV, Lemon Misinterpreted, is a brief discussion of the Lemon decision and the misinterpretation of the Court's decision--which resulted in the mistaken belief that there was only one test to apply to Establishment Clause cases. Part V, The Lemon Years, is a brief section highlighting the Establishment Clause cases decided during Lemon's heyday, illustrating the extent of the appeal that at one time Lemon possessed. Part VI, Erosion of the Test, details the Court's dissatisfaction with the Lemon test which gained momentum throughout the 1980s.

Part VII, Lemon in the 1990s, looks at recent Supreme Court Establishment Clause decisions where Lemon has been both applied and, more frequently, shunned by the Court. Part VIII, Establishment Clause Analysis Today, focuses on the application and merits of two new Establishment Clause tests--Justice Kennedy's coercion test and Justice O'Connor's endorsement test, both of which have found favor with a majority of the Court in separate opinions. Finally, in Part IX, Future Establishment Clause Analysis, I will propose what I believe will be the Court's direction in future Establishment Clause controversies.

II. HISTORICAL ESTABLISHMENT CLAUSE ANALYSIS

The relationship between church and the federal government has been governed by the First Amendment since the Bill of Rights' adoption in 1789. The First Amendment states that Congress shall make no law regarding the establishment of religion, or prohibiting the free exercise thereof .... In one of the earliest cases applying the First Amendment, Vidal v. Executors of Girard, the Supreme Court was asked to decide whether a provision of Girard's will was hostile to religion and therefore unconstitutional. The provision of the will at issue sought to establish a college, yet exclude the hiring of any sectarian faculty members. The Court, while recognizing Christianity's role in the common law tradition, determined that Girard's intent was not hostile to religion. The Court held that the relationship between the federal government and the church, while not requiring government to be friendly to religion, cannot be one of hostility or repudiation. This rule was further developed in two early twentieth century cases as well: Pierce v. Society of Sisters and West Virginia State Board of Education v. Barnette.

A second rule also developed around the turn of the century, where the Court in two cases held constitutional the granting of public aid to sectarian institutions if the aid was not provided for religious purposes. In Bradfield v. Roberts, the Court determined that aid to hospitals run by religious institutions was given for medical purposes, and that the religious affiliation of the hospital was mere coincidence. Similarly, in Cochran v. Louisiana, the Court upheld the state purchase of textbooks for nonpublic schools as aid not given for religious purposes.

The year 1940 witnessed a major turning point in Establishment Clause jurisprudence. The Supreme Court, in Cantwell v. State of Connecticut, held that First Amendment protections, through the Fourteenth Amendment, applied to the states. The Court in Cantwell stated:

The fundamental concept of liberty embodied in that (Fourteenth) Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.

As a result of the Court's holding in Cantwell, the modern era of Establishment Clause

philosophy was ushered in.

The year 1947 witnessed the first modern Establishment Clause case, Everson v. Board of Education. The Court in Everson, per Justice Black, concluded that governmental compulsion constituted establishment of religion. Everson involved state aid provided for busing school children to parochial schools. Justice Black felt that Thomas Jefferson's wall of separation between church and state was not undermined in the case, as the benefit was flowing to the children and not the parochial school.

In the course of its Everson holding, the Supreme Court created a definition of government neutrality that balanced the rules requiring a secular purpose and prohibiting hostility to religion:

No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to preach or practice religion. Neither a state or the federal government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa."

A year later, in McCollum v. Board of Education, Justice Frankfurter in his concurrence reemphasized the broadened sweep of the Establishment Clause the Court had created in Everson, stating, AWe are all agreed that the First and Fourteenth Amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an established church.

III.THE LEMON TEST

On June 28, 1971, the Supreme Court in Lemon v. Kurtzman, an opinion authored by Chief Justice Burger, set forth a three-prong test under which the disputed state statutes in the case were to be analyzed. The issue in Lemon was whether two similar state statutes were constitutional under the Establishment Clause: one (Rhode Island) which provided for a 15% salary supplement to be paid to teachers in nonpublic schools at which the average per pupil expenditure on secular education was below the average in public schools; the other (Pennsylvania) providing for reimbursement for the cost of teachers' salaries, textbooks and instructional materials. The Rhode Island statute required eligible participants under the statute to teach only courses offered at public schools and further to agree to not teach courses in religion. Legislative history presented in the district court evidenced the fact that both statutes were intended to advance secular education, a valid secular purpose.

Despite the Rhode Island statute's secular purpose, the Court focused on the fact that the sole beneficiaries under the statute, at the time, were 250 teachers at Roman Catholic schools. The Court stated its concern that in both cases teachers will inevitably experience great difficulty in remaining religiously neutral. As a result, under both the Rhode Island and the Pennsylvania statutes, the potential for advancing religion was a very real threat.

Consequently, in order to avoid any advancement of religion in the schools, the state would have to undertake comprehensive, discriminating, and continuing surveillance to ensure that the restrictions in the statutes were being adhered to and the First Amendment otherwise respected. The Supreme Court held that the increased state surveillance of the restrictions placed on the eligible participants under the statute would involve excessive and enduring entanglement between state and church.

The resulting test pieced together by the majority, thereafter dubbed the Lemon test, was designed to prevent 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.

The test was set forth as follows: 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.

As noted briefly in the Introduction, the three prongs which comprised the Lemon test were not in and of themselves unique methods of analysis. Each prong had been separately utilized in a series of Establishment Clause decisions dating from 1961, the three main cases being McGowan v. Maryland, Abington School District v. Schempp and Walz v. Tax Commission.

The secular purpose prong of the Lemon test was set forth in McGowan v. Maryland. In McGowan, the Supreme Court addressed the constitutional validity of Maryland's criminal statutes, commonly known as Sunday Closing Laws or Sunday Blue Laws. The statutes, with some exceptions, generally proscribed all labor, business and other commercial activities on Sunday. The Court found that the purpose behind the Blue Laws was secular, in that the legislature could reasonably find that the Sunday sale of the exempted commodities was necessary either for the health of the populace or for the enhancement of the recreational atmosphere of the day. In light of the fact that the Blue Laws' purpose was secular, providing for a uniform, state-wide day of rest, the Court held that Maryland's criminal statutes were constitutional and did not advance religion in violation of the Establishment Clause.

The second prong of the Lemon test, which requires that a statute's primary effect neither advance nor inhibit religion, was set forth in Abington School District v. Schempp. In Abington, the Supreme Court held that two similar state statutes, a Maryland statute and a Pennsylvania statute, requiring that each school day be opened with a reading from the Bible, violated the Establishment Clause. The Court, while recognizing that religion has been closely identified with our history and government, citing the oaths of the Presidential office, Supreme Court sessions and Congressional chaplains, also noted that religious freedom was strongly imbedded in our public and private life, citing the religious persecution suffered by our forebears.

The Court, per Justice Clark, held that requiring Bible readings prior to starting the school day constituted a religious ceremony and was intended by the State to be so. The test, as stated by Justice Clark, is to ask what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. The Court once again emphasized the wholesome neutrality which a state must observe in its actions with regard to religion--the secular purpose established in McGowan.

The third prong of the Lemon test, whether the state action leads to excessive entanglement with religion, comes from Walz v. Tax Commission. In Walz, the Supreme Court held as being constitutional the granting of tax exemptions to religious properties, as the legislative purpose of a property tax exemption is neither the advancement not the inhibition of religion; it is neither sponsorship nor hostility. Instead, the Court noted that the statute at issue had not singled out one particular church or religious group, but had exempted all property owned by non-profit, quasi-public corporations which also included hospitals, libraries, playgrounds--groups considered beneficial and stabilizing influences in community life. The Walz Court recognized that, No perfect or absolute separation [between church and state] is really possible; the very existence of the Religion Clauses is an involvement of sorts--one that seeks to mark boundaries to avoid excessive entanglement.

IV. LEMON MISINTERPRETED

The three prongs set forth as the Lemon "test" were never meant to be placed in the position of being the single, preeminent Establishment Clause test. Prior to the ruling in Lemon, the Court's Establishment Clause decisions were approached on a case by case basis, applying tests formulated through precedent, common sense and interpretation of the Framers' intent--as witnessed from the discussion in Part III, above. With the advent of Lemon, and the subsequent misapplication of the Lemon guidelines as a unitary test, the Court effectively stifled the ability of the Court to develop flexible and evolving precedents. Lemon herded all Establishment Clause challenges into a single corral, closed the gate and forced each decision out a narrow opening in the fence--whether the facts fit or not.

Chief Justice Burger, throughout his opinion in Lemon, downplayed the ability of the Court to fashion a single Establishment Clause test: Candor compels acknowledgment, moreover, that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law. The Chief Justice further wrote that, Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. There is no suggestion in Chief Justice Burger's opinion that such criteria were no longer able to be established.

The Court went on to deny any suggestion that it was to engage in a legalistic minuet in which precise rules and forms must govern. The Lemon opinion, on its face, neither sought to promote a unitary Establishment Clause test, nor did it seek to assert that developing such a unitary test was possible. Over a decade later, in Marsh v. Chambers and Lynch v. Donnelly, Chief Justice Burger was still emphasizing the fact that no fixed, per se rule can be framed as the Establishment Clause is not a precise, detailed provision in a legal code. Indeed, the Chief Justice found it merely useful to inquire whether the challenged law or conduct has a secular purpose, whether its principal or primary effect is to advance or inhibit religion, and whether it creates an excessive entanglement of government with religion. What many Justices deemed the Establishment Clause test was to its author a mere crutch.

Asserting an unwillingness to be confined to any single test, the three-prongs of the Lemon test were intended by Chief Justice Burger to provide guidelines when balancing the relationship between church and state. As was apparent from the Lemon opinion, any attempt to establish a bright-line test would almost of necessity fail, as is evidenced by the modern day furor over the state of the Lemon test and the inconsistencies readily apparent in many Establishment Clause decisions. As observed by Justice Frankfurter, the acknowledgment of Jefferson's wall of separation does not preclude a clash of views as to what the wall separates.

The Supreme Court, however, misapplied Lemon throughout the 1970's. In 1981, the Court distorted the test even more. In its opinion in Stone v. Graham, the Court now required that only one prong of the Lemon test need be failed in order for a law or government conduct to be violative of the Establishment Clause. In the 1980's, Establishment Clause jurisprudence would suffer the effects of the Court's misinterpretation of Lemon.

V. THE LEMON YEARS

Lemon v. Kurtzman was decided with one lone dissent. Justice White, without criticizing the formulation of the three-prong test itself, had difficulty finding that the facts presented a case of entanglement with religion--the basis upon which the majority rested its decision. Justice White called the majority's reasoning a curious and mystifying blend, and that the majority appeared unwilling to accept the District Court's express findings that on the evidence before it none of the teachers here involved mixed religious and secular instruction. The Lemon test, at least initially, was accepted by the Court as a distillation of modern Establishment Clause reasoning.

Since Lemon was decided, the Court has applied the three-prong test to deliver a variety of Establishment Clause rulings in over 30 cases. Throughout the 1970's the Lemon test was applied with almost no opposition, although Justice White questioned the necessity of the entanglement prong in his concurring opinion in Roemer v. Maryland Board of Public Works. The post-1970's period would not be so kind to the Lemon test.

VI. EROSION OF THE TEST

The Lemon test was cited with approval in the 1984 Supreme Court decision Lynch v. Donnelly. Although the Court rested its entire decision upon the three prongs of Lemon, finding that a city's display of a crèche as part of a Christmas display did not violate any of the Lemon prongs, the Court, after ten years of almost unquestioned obedience, indicated an unwillingness to restrict itself to one single test when deciding Establishment Clause controversies. Despite such an ambiguous vote of confidence, the beginning of the demise of the Lemon test as a test per se had already begun three years previous in the Court's decision in Larson v. Valente.

The issue presented to the Court in Larson was whether a Minnesota statute imposing certain registration and reporting requirements upon only those religious organizations that solicit more than 50% of their funds from nonmembers discriminates against such organizations in violation of the Establishment Clause. At the district court level, a Magistrate held that the statute was facially unconstitutional as the 50% rule failed the second of the three tests set forth in Lemon. The Eighth Circuit Court of Appeals affirmed adding, however, that the 50% rule failed the first of the three Lemon tests as well.

Despite the fact that both the district court Magistrate and the Court of Appeals relied heavily on the three prongs set forth in Lemon, Larson is noteworthy as being, arguably, the first Supreme Court Establishment Clause case to ignore the Lemon test since its inception eleven years prior. For the first time in an Establishment Clause case, the Court applied a strict scrutiny standard of review--holding that a statute or practice that plainly embodies an intentional discrimination among religions must be closely fitted to a compelling state purpose in order to survive constitutional challenge. The reason behind this change in approach, as noted by Justice White's dissent, is that apparently the Lemon tests are put aside because they are applicable only to laws affording uniform benefit to all religions, not to provisions that discriminate among religions.

One year later, in Marsh v. Chambers, the Court once again was faced with an Establishment Clause controversy, and once again the Court did not address the Lemon test. The issue in Marsh was whether opening legislative sessions with prayers led by a State-employed clergyman was constitutional. The district court applied Lemon and found all three prongs were violated by the practice.

The Supreme Court, by Chief Justice Burger, did not even mention Lemon in the text of the opinion (note the lack of alleged discrimination). Instead, the Court looked at the unique history of legislative prayer and determined:

In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an `establishment´ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country."

Justice Brennan, with Justice Marshall, voiced a strong dissent. Justice Brennan immediately brought up Lemon, stating that if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause. The Court's holding essentially created an exemption for legislative invocation based on its history without, however, relying on the actual legislative history of the Establishment Clause itself.

The fact that Lemon was so easily ignored by the Marsh Court has been repeatedly attacked and pointed to as a clear indication of the beginning of the end of the Lemon test. The Court's next Establishment Clause case, the 1984 decision in Lynch v. Donnelly, is very insightful. The majority opinion in Lynch, drafted by former Chief Justice Burger, author of both Marsh and Lemon, applied the Lemon test in holding as constitutional a city's display of a crèche in its Christmas display. Again summoning the power of history, the Court stated:

It would be ironic, however, if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged in the Western world for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for two centuries, would so `taint´ the City's exhibit as to render it violative of the Establishment Clause."

Chief Justice Burger, voicing sentiments expressed in prior Establishment Clause rulings, including Lemon, stated:

In each case, the inquiry calls for line drawing; no fixed, per se rule can be framed. The Establishment Clause like the Due Process Clauses is not a precise, detailed provision in a legal code capable of ready application. The purpose of the Establishment Clause "was to state an objective, not to write a statute." The line between permissible relationships and those barred by the Clause can no more be straight and unwavering than due process can be defined in a single stroke or phrase or test. The Clause erects a "blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."

Further, the Chief Justice stressed that we have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area. The Court also recognized that in both Larson and Marsh the Lemon test was not even applied.

Justice O'Connor, concurring in Lynch, nevertheless proposed a revision of the Lemon test. Her primary concern with Lemon was that, It has never been entirely clear ... how the three parts of the test relate to the principles enshrined in the Establishment Clause. Instead, Focusing on institutional entanglement and on endorsement or disapproval of religion clarifies the Lemon test as an analytical device... 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. In addition to her proposed modification of the Lemon test, Justice O'Connor stated in a footnote that she agreed with the Court that no single formula can ever fully capture the analysis that may be necessary to resolve difficult Establishment Clause problems.... Yet at the same time, Justice O'Connor was loathe to allow the Lemon test to be disposed of so easily by the Chief Justice.

Despite Chief Justice Burger's clear statements in Lemon, Marsh and Lynch, and recognition of the nontest nature of the three Lemon prongs in Tilton v. Richardson and Hunt v. McNair, the Court nevertheless struggled to apply Lemon's rigid framework religiously to Establishment Clause challenges. Not surprisingly, Lemon proved to be a difficult framework to apply and its application was, at best, unclear and unpredictable. Inevitably, many Justices began to question the continuing validity of Lemon as a proper framework of analysis in deciding Establishment Clause questions.

Recent criticism directed at Lemon has been incisive and redundant. In addition to Justice O'Connor's concurring opinion in Lynch, which Justice Blackmun cited with approval in County of Allegheny v. ACLU, indicating that he also is in favor of a modification of Lemon, Justice Rehnquist attacked Lemon in his dissent in Wallace v. Jaffree. According to Justice Rehnquist, the Lemon test has no more grounding in the history of the First Amendment than does the wall theory upon which it rests.

In Grand Rapids School District v. Ball, Justice White, the original dissenter in Lemon, reiterated his concerns about the Lemon test. Justice White stated that, in accordance with his dissents in Lemon and Public Education & Religious Liberty v. Nyquist, I am firmly of the belief that the Court's decisions in these [Establishment Clause] cases, like its decisions in Lemon and Nyquist, are `not required by the First Amendment and [are] contrary to the long range interests of the country.´

Justice Scalia has repeatedly lambasted the Court's continued adherence to Lemon. In his dissent in Edwards v. Aguillard, Justice Scalia expressed his doubt whether the `purpose´ requirement of Lemon is a proper interpretation of the Constitution. Justice Scalia continued, stating, In the past we have attempted to justify our embarrassing Establishment Clause jurisprudence on the ground that it `sacrifices clarity and predictability for flexibility.´ ... I think it time that we sacrifice some `flexibility´ for `clarity and predictability.´ Abandoning Lemon's purpose test ... would be a good place to start.

In County of Allegheny v. ACLU, Justice Kennedy stated that he did not wish to be seen as advocating, let alone adopting, [the Lemon] test as [the] primary guide in this difficult area. Feeling that the majority's view of the Establishment Clause reflects an unjustified hostility toward religion, a hostility inconsistent with our history and our precedents, Justice Kennedy instead became the standard-bearer for the readoption of the coercion analysis first set forth in Everson. The coercion test has been favorably viewed by many Court Justices as an alternative to the unwieldy three-prong Lemon test.

As is apparent, the 1980's were not good years for the Lemon test. While almost unquestioningly applied throughout the 1970's, the Lemon framework came increasingly under fire as the Court's Establishment Clause doctrine evolved in the 1980's. More and more, the Justices were faced with the recurrent theme that the Lemon test was failing Establishment Clause jurisprudence--and the shift away from Lemon's uncompromising unitary approach gained momentum.

VII. LEMON IN THE 1990s

On June 24, 1992 the Court, in a much anticipated decision, issued its opinion in Lee v. Weisman. In Lee, a public school student and her father brought suit seeking a permanent injunction to prevent the inclusion of invocations and benedictions, in the form of prayer, in graduation ceremonies of city public schools. Justice Kennedy authored the opinion for the Court, beginning the opinion by stating that, This case does not require us to revisit the difficult questions dividing us in recent cases.... Justice Kennedy refused both to apply the Lemon test or reconsider the validity of Lemon as requested by the Solicitor General as amicus for the United States.

Justice Kennedy, writing for the majority, based his decision on the Everson coercion analysis he had revived in Allegheny and later addressed in Board of Education of the Westside Community Schools v. Mergens. Noting that subtle coercive pressures exist in the secondary school environment, [a] student had no real alternative which would have allowed her to avoid the fact or appearance of participation [in the graduation invocation/benediction]. The ultimate holding formulated by Justice Kennedy was that the government cannot persuade or compel an individual to religious practice.

Nearly one year later, in Lamb's Chapel v. Center Moriches Union Free School District, Lemon reappeared. The issue in Lamb's Chapel was whether a church's constitutional rights had been violated by a school district's refusal to allow the church to use school facilities for a religious oriented film series on family values and child rearing. The Court, per Justice White, held that permitting District property to be used to exhibit the film involved in this case would not have been an establishment of religion under the three-part test articulated in Lemon.

For by now understandable reasons, Justice Scalia, joined by Justice Thomas, blasted the majority's utilization of the on-again, off-again Lemon test:

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 of Center Moriches Union Free School District. Its most recent burial ... was, to be sure, not fully six feet under: our decision in Lee v. Weisman conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it.

In addition, Justice Kennedy, in his concurrence, stated that the Court's citation of Lemon was unsettling and unnecessary.

Eleven days later, in Zobrest v. Catalina Foothills School District, the Court once again had the opportunity to address the status of Lemon. In Zobrest, the Court was faced with the issue of whether a public employee, a sign language interpreter, could be placed in a sectarian school for the benefit of a deaf student. The Court, in an opinion authored by Chief Justice Rehnquist, held that, When the government offers a neutral service on the premises of a sectarian school as part of a general program that `is in no way skewed towards religion,´ it follows under our prior decisions that provision of that service does not offend the Establishment Clause.

The important aspect of Zobrest is that Lemon is mentioned absolutely nowhere in the opinions of any of the justices. The Lemon test was not, however, discarded, compounding the confusion surrounding the dubious three-prong test.

Finally, and most recently, the Court in Board of Education of Kiryas Joel Village School District v. Grumet once again refused to incorporate the Lemon test in its majority opinion. The Court in Kiryas Joel struck down a statute creating a special school district following the village lines of a religious enclave, incorporated as a village, to exclude all but its practitioners. While ostensibly relying on the criteria set forth in Lemon, this fact is only made apparent in the concurring/dissenting opinions.

In a startlingly revealing concurrence by Justice O'Connor (sounding much like former Chief Justice Burger), after noting the Court's failure to apply the Lemon test, she writes:

It is always appealing to look for a single test, a Grand Unified Theory that would resolve all the cases that may arise under a particular clause. There is, after all, only one Establishment Clause, one Free Speech Clause, one Fourth Amendment, one Equal Protection Clause ... But the same constitutional principle may operate very differently in different contexts....

And setting forth a unitary test for a broad set of cases may sometimes do more harm than good. Any test that must deal with widely disparate situations risks being so vague as to be useless ...

Moreover, shoehorning new problems into a test that does not reflect the special concerns raised by those problems tends to deform the language of the test. Relatively simple phrases like "primary effect ... that neither advances nor inhibits religion" and "entanglement," acquire more and more complicated definitions which stray ever further from their literal meaning. Alternatives to Lemon suffer from a similar failing when they lead us to find "coercive pressure" to pray when a school asks listeners--with no threat of legal sanctions--to stand or remain silent during a graduation prayer ... But I think it is more useful to recognize the relevant concerns in each case on their own terms, rather than trying to squeeze them into language that does not really apply to them.

The slide away from Lemon's unitary approach is well under way. A return to Lemon, even if possible, would likely be futile, regardless of where one stands on the substantive Establishment Clause questions. I think that a less unitary approach provides a better structure for analysis ... And abandoning the Lemon framework need not mean abandoning some of the insights that the test reflected, nor the insights of the cases that applied it.

But it seem to me that the case law will better be able to evolve towards this [unified Establishment Clause test] if it is freed from the Lemon test's rigid influence.

Of all the Justices who have hammered away at the Lemon test, Justice O'Connor is the first Justice to take the leap of faith and recognize the Lemon test for what it really is and always has been--guidelines for the Court to consider; signposts to help the Court make its decisions. Echoing the sentiments preached by Chief Justice Burger in Lemon, Marsh and Lynch, Justice O'Connor is now stating the obvious--the Lemon test as an all-encompassing, unitary test has failed.

VIII. ESTABLISHMENT CLAUSE ANALYSIS TODAY

Throughout the 1980s and up to the present, the Supreme Court has utilized four separate tests in deciding Establishment Clause cases: First, the ever-less-favorable Lemon test; second, the historical test applied in Marsh v. Chambers; third, the endorsement test first outlined by Justice O'Connor in her concurring opinion in Lynch v. Donnelly and later accepted by the majority of the Court in County of Allegheny v. ACLU; and finally, the Everson coercion test, resuscitated by Justice Kennedy in his Allegheny dissent and accepted by the majority of the Court in Lee v. Weisman.

Of the four above, the Lemon test, while not as of yet overruled, remains on shaky grounds. The historical test, while mentioned by Scalia in his Lee dissent, has not been considered as a unitary test since Marsh. The remaining two tests, the endorsement test and the coercion test, have both been embraced by a majority of the Court, and merit more in-depth analysis.

A. THE ENDORSEMENT TEST

Justice O'Connor developed a less stringent alternative to Lemon in her concurrence in Lynch v. Donnelly. Her endorsement test focused on government endorsement or disapproval of religion. In Lynch, the Court was faced with a challenge to the City of Pawtucket, Rhode Island's inclusion of a crèche as part of a more traditional Christmas display--including Santa Clause, reindeer, a sleigh, candy-striped poles, carolers, a Christmas tree and other such holiday figures. The Court, per Chief Justice Burger, held that the City had a secular purpose for including the crèche, that the City had not impermissibly advanced religion, and that the inclusion of the crèche did not create excessive entanglement between religion and government.

According to Justice O'Connor, including the crèche as part of the larger display was a celebration of the public holiday through its traditional symbols. Thus, the City neither endorsed Christianity nor disapproved of non-Christian religion. In arriving at this new test, Justice O'Connor noted that It has never been entirely clear, however, how the three parts of the [Lemon] test relate to the principles enshrined in the Establishment Clause. Instead, Justice O'Connor proposed to assimilate the strict scrutiny standard applied in Larson to the Lemon test. Her clarified version was set forth as follows: Plain intentional discrimination should give rise to a presumption, which may be overcome by a showing of a compelling purpose and close fit, that the challenged government conduct constitutes an endorsement of the favored religion or a disapproval of the disfavored.

Justice O'Connor further refined the endorsement test in Wallace v. Jaffree, stating that under this view, Lemon's inquiry as to the purpose and effect of a statute requires courts to examine whether government's purpose is to endorse religion and whether the statute actually conveys a message of endorsement. Noting the extensive coexistence of church and state in the United States, Justice O'Connor stated:

It is inevitable that the secular interests of government and the religious interests of various sects and their adherents will frequently intersect, conflict, and combine. A statute that ostensibly promotes a secular interest often has an incidental or even a primary effect of helping or hindering a sectarian belief. Chaos would ensue if every such statute were invalid under the Establishment Clause.

In applying the endorsement test to a governmental action, the relevant issue is whether an objective observer would perceive the action as a state endorsement of religion.

The endorsement test was embraced by a majority of the court in County of Allegheny v. ACLU. In Allegheny, the Court, while applying the Lemon test, focused on Justice O'Connor's endorsement approach in holding that a holiday display of a crèche in a county courthouse was unconstitutional because it had the effect of promoting or endorsing religious beliefs. At the same time, the Court found that a Christmas display of a menorah in front of a city building, which was placed next to a less religious Christmas tree, did not have the same effect. Thus, while ostensibly applying the Lemon prongs in Allegheny, the majority based its decision upon the endorsement aspect presented by the facts--an approach certainly not required by the Lemon test. Justice Kennedy, in his dissent, voiced strong opposition to this development.

B. THE COERCION TEST

Justice Kennedy's dissent in County of Allegheny v. ACLU is significant, due to the fact that Kennedy revived the long dormant Establishment Clause approach used in Everson--the coercion analysis. Justice Kennedy felt that, under his coercion analysis, both displays should have been allowed. By including a nonendorsement mandate into the Lemon test, Justice Kennedy believed, the Court had assumed a posture of hostility toward religion. In support of his position, Justice Kennedy stated that government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage.

In Justice Kennedy's opinion, two limiting principles had emerged from the Court's Establishment Clause jurisprudence:

Government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact establishes a [state] religion or religious faith, or tends to do so.

These two limiting principles are inextricably intertwined:

It would be difficult indeed to establish a religion without some measure of more or less subtle coercion, be it in the form of taxation to supply the substantial benefits that would sustain a state-established faith, direct compulsion to observance, or governmental exhortation to religiosity that amounts in fact to proselytizing.

Justice Kennedy also noted that psychological coercion may be present where government actions support religion. This type of coercion was different than the direct coercion in the classic sense of an establishment of religion that the Framers knew. Justice Kennedy observed that:

Coercion need not be a direct tax in aid of religion or a test oath. Symbolic recognition or accommodation of religious faith may violate the Clause in an extreme case. I doubt not, for example, that the Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall.

In writing for the majority in Lee v. Weisman, Justice Kennedy applied his psychological coercion test for evaluating the constitutionality of a nonsectarian prayer to be given by a clergyman selected by a public school for a high school graduation invocation/benediction. In holding the graduation ceremonies unconstitutional, the Court in Lee stated that the prayer exercises in this case are especially improper because the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular importance to every student, one the objecting student had no real alternative to avoid. In short, Justice Kennedy's analysis was based upon a determination that individuals participating in the graduation ceremonies would feel coerced or compelled to take part in a religious activity.

Yet in a concurring opinion by Justice Blackmun with whom Justices Stevens and O'Connor join, Justice Blackmun rejects, as a new test, the coercion approach taken by Justice Kennedy. Justice Blackmun asserts that [a]lthough our precedents make clear that proof of government coercion is not necessary to prove an Establishment Clause violation, it is sufficient. Applying Lemon, these Justices reasoned that coercion indicates government is endorsing religion.

The four dissenters in the case, led by Justice Scalia, argued that the Court should not ignore historical practices. Justice Scalia, quoting Justice Kennedy in Allegheny, pointed out that government policies of accommodation, acknowledgment, and support for religion ... are an accepted part or our political and cultural heritage. The dissenters rejected both the psycho-coercion test and the Lemon test as legitimate approaches to Establishment Clause analysis.

C. ENDORSEMENT V. COERCION

The immediate advantage under both the endorsement test and the coercion test is that the Court's Establishment Clause inquiry would be restricted to a specific issue: Has government endorsed religion from the objective person viewpoint? Has government coerced, actually or psychologically, individuals to participate in religious activity? Facially, such an approach is certainly desirable.

Each test, however, has serious flaws. For example, the endorsement test may not uphold historical practices previously found constitutional by the Court. Also, where is the line between endorsing religion and merely accepting religion as part of our culture to be drawn? The coercion test, on the other hand, does not consider the plethora of ways in which government may subtly coerce by showing favoritism towards a particular sect or conveying a message of disapproval to other sects. Nor does the coercion test require actual threats of physical coercion for an individual to be deemed coerced (as in Lee). Psychological coercion is a concept entailing unlimited negative potential.

The coercion test is also inherently flawed in that it would allow, in the absence of coercion, financial support, etc., the recognition of a particular denomination, i.e. Christianity, as the official religion of the United States. As is apparent, this would fly directly in the face of the First Amendment itself, which prohibits the state from establishing a church.

IX. FUTURE ESTABLISHMENT CLAUSE ANALYSIS

Both the endorsement test and the coercion test were initially hailed as positive improvements over the much maligned Lemon test. However, in cases decided since Lee v. Weisman, the Court has applied the Lemon test once (Lamb's Chapel), the endorsement test and coercion test not at all, and some other flexible, accommodationist approach twice (in Zobrest and Kiryas Joel). The latter accommodationist approach, taking the form of a balancing test in Zobrest and a government neutrality test in Kiryas Joel, may be the foundation upon which future Establishment Clause controversies will rest.

In Zobrest, dealing with the issue of whether the state may provide a sign language interpreter to a parochial school student, the Court balanced: 1) the personal decision-making power afforded parents; 2) the lack of reimbursement of normal operating expenses to sectarian schools; 3) the purpose of meeting the educational needs of disabled students; and 4) the neutrality of the disbursement of benefits, against 1) the placement of a government-funded employee in a sectarian school; 2) the interpreter's conveying secular as well as religious material; and 3) the incidental benefit accruing to the sectarian school. In holding that the placement of the interpreter did not violate the Establishment Clause, the Court looked at, and balanced, many more factors than would have been possible under Lemon's strict, three-prong analysis.

In the course of its holding, the Zobrest Court noted that we have consistently held that government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit. The Court, therefore, even after balancing the factors noted above, still remained wary of the historical purpose of the Establishment Clause--avoiding a state established church and stopping government from asserting a preference for one religious denomination or sect over others.

This neutral/accommodationist theme was reiterated by the majority in Kiryas Joel. The opinion in Kiryas Joel begins by noting that, AA proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of `neutrality´ toward religion, favoring neither one religion over others nor religious adherents collectively over nonadherents. The Court went on to support this position, stating:

Our cases leave no doubt that in commanding neutrality the Religion Clauses do not require the government be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice. Rather, there is "ample room under the Establishment Clause for `benevolent neutrality´ which will permit religious exercise to exist without sponsorship and without interference"; government may (and sometimes must) accommodate religious practices and ... may do so without violating the Establishment Clause.

This concept of benevolent neutrality, even without the addition of a balancing test, ensures that a state church is not established by government, that government does not favor one sect or denomination over another, and that government does not in any other way lend its weight behind one religious faith or denomination. At the same time, the incidental effect that certain legislation may have on religion, positive or negative, is also recognized. Where the government remains neutral with regard to religion, the incidental effects should not consume the Court's Establishment Clause analysis.

The Framers understood that church and state were almost inextricably intertwined. Their goal in drafting the First Amendment was simply that a state sponsored religion should not be established by the government of the United States of America and, through the Fourteenth Amendment, by the states. By utilizing a neutrality oriented test in its last two Establishment Clause rulings, the Court is indicating a desire to rid themselves of the binding constraints of a rigid, unitary test and acknowledge that church and state will always be intertwined to a certain extent.

A neutrality approach respects this acknowledgement--and affords the Court much greater latitude to assess factors unrelated to the three prongs enunciated in Lemon. As witnessed in Zobrest, where many factors were balanced against each other, the incorporation of these additional factors allows the Court the ability to establish solid precedent and coherent policy--for example, there can be little doubt that, strictly applied, Lemon would have denied the student in Zobrest her sign language interpreter. Because the merits of the neutrality approach outweigh any negatives (assuming, of course, that the Court does not get bogged down in assessing de minimus factors), the government neutrality approach should be the test for future Establishment Clause cases.

X. CONCLUSION

Despite the apparent trend of the Court to utilize a neutrality test, the future of Establishment Clause jurisprudence remains as murky as it has been since 1981. Sizing up the current Court does little to clear the waters surrounding the status of Lemon and its application to future Establishment Clause controversies. Chief Justice Rehnquist and Justice Scalia, with whom Justice Thomas is now aligned, are clearly in favor of getting rid of Lemon and introducing a more accommodationist approach. Justice Kennedy favors the coercion analysis utilized in his majority opinion in Lee, and would favor getting rid of Lemon. Justice O'Connor prefers the endorsement test--a modification of Lemon's first two prongs. Justices Stevens, Souter and Ginsburg advocate strict separation of church and state, but none of the three has shown a strong distaste for the Lemon test. Justice Blackmun's replacement on the bench, Justice Breyer, remains a wild-card.

As a result, future Establishment Clause jurisprudence remains indecipherable. While it appears as though a majority of the Court today could easily remove Lemon from the face of Establishment Clause decisions, such a move was similarly possible in the late 1980s and early 1990s as well. The last two Supreme Court Establishment Clause decisions are important in that in both cases, Zobrest and Kiryas Joel the majority has at least recognized a controlling factor--that government must be neutral in its actions towards religion, despite any incidental benefits or detriments government's actions may have on religion. Neither the coercion test nor the endorsement test was utilized by either majority.

The doctrine of neutrality is, perhaps, the wave of the future. It is a flexible doctrine which inherently contains a multitude of factors upon which the Court may rest its decisions--including precedent, history, the Lemon prongs, and plain common sense. While no single Establishment Clause test will ever be adequately applied to all cases, the neutrality test may at least withstand many of the shortcomings that were so apparent in Lemon.