Lemon Test: Federalists 'shoot fish in a barrel' at UDM Law

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By John Minnis
Legal News

The U.S. Supreme Court’s “Lemon test”—re the Establishment Clause—got a fresh squeezing Tuesday, Oct. 12, at a talk hosted by the University of Detroit Mercy School of Law chapter of The Federalist Society.

Ken Klukowski, of the American Civil Rights Union and Townhall.com, spoke on “Religion in America: The Establishment Clause and the Lemon Test.” UDM law professor Dennis Olson served as commentator following Klukowski’s remarks. Third-year law student Jeff Wiggins, president of the student chapter of The Federalist Society, introduced both speakers.

The UDM Law Federalist Society is a conservative student organization founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to the U.S. Constitution, and that it is the duty of the judiciary to say what the law is, not what it should be.

Klukowski is a senior analyst and fellow at the American Civil Rights Union, the antithesis of the ACLU that regularly reports “ACLU Outrages” on its website. Klukowski covers the U.S. Supreme Court for conservative online media, including Townhall.com, BigGovernment.com and Fox Forum. He regularly lectures at law schools across the nation and is a practicing attorney.

“Today we are pleased to welcome Ken Klukowski,” Wiggins said in introducing the speaker to a smattering of students in the UDM Law Atrium.

Klukowski started by explaining the Lemon test and how it came about.

The U.S. Supreme Court’s decision in the case of Lemon v. Kurtzman (1971), established the requirements for legislation pertaining to religion. To be constitutional under the Establishment Clause of the U.S. Constitution, the legislation must satisfy the following three elements:
1) The government’s action must have a secular legislative purpose.
2) The government’s action must not have the primary effect of either advancing or inhibiting religion.
3) The government’s action must not result in an “excessive government entanglement” with religion.

Klukowski then went even further back into history, explaining that the Pilgrims came to this country not to establish a sovereign nation but rather to create a community where they were free to worship as they wished without fear of government interference.

“In 1680,” he said, “you could be arrested in England for preaching without a license.”

The Establishment Clause of the First Amendment was to prevent the federal government from choosing one religion over another or creating a “Church of America,” a la Church of England. Further, Klukowski said, the Establishment Clause originally applied only to the federal government. In fact, many of the original colonies did have state-sanctioned churches.

That all changed in 1947 in Everson v. Board of Education where the U.S. Supreme Court in a 5-4 decision opined through Justice Hugo Black that the Establishment Clause applied equally to states as it did the federal government.

“He did not explore American or constitutional history,” Klukowski said of Black’s opinion. “It was pretty significant. There is scant evidence that the Establishment Clause should apply to the states.”

Klukowski said it was the 1947 case that created the wall between church and state.

“Most people think the phrase ‘separation of church and state’ is found in the Constitution,” he said, “and they are surprised when they learn it isn’t.”

He said that in later cases, the high court found the Lemon test was unworkable or didn’t apply. The Lemon test was very subjective and became “increasingly anti-religious.”

Klukowski pointed out that the very same week that Congress enacted the First Amendment—Establishment Clause and all—it hired a full-time clergy to lead daily prayer at the start of each day’s session.

“I cannot believe the founders immediately violated their own clause,” Klukowski said.

He cited Associate Justice Sandra Day O’Connor’s preference for the “endorsement test,” where in Lynch v. Donnelly (1984) the court asks whether a particular government action amounts to an endorsement of religion, thus violating the Establishment Clause of the First Amendment.

In addition to the endorsement test, Associate Justice Anthony Kennedy in Lee v. Weisman (1992) came up with the “coercion test.” In Lee, the court ruled that clergy-led prayer within the events of a public high school graduation violates the Establishment Clause of the First Amendment. Kennedy argued that that prayer exercises in public schools carry a particular risk of indirect coercion:

“The concern may not be limited to the context of schools, but it is most pronounced there. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.”

The coercion test is now used, in addition to the Lemon test and Justice O’Connor’s endorsement test, to determine the constitutionality of government actions under the Establishment Clause.

“All of which are trying to make sense of Lemon,” Klukowski said.

He said all judges fall into two camps: accommodationists and separationists. Some judges believe the Establishment Clause does not prevent the government from “benevolently accommodating beliefs.”

Some judges “assume the universal acceptance of Judeo-Christian beliefs.

Separationists believe any religious manifestations can arguably be advancing a certain religion. Anything that is religious is advancing religion. Even the Free Exercise Clause of the First Amendment—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”—can be construed as advancing religion in violation of the Establishment Clause.

“You’re dealing with too much subjectivity,” Klukowski said. “It sways back and forth depending on who’s sitting on the court at the time.”

He said there are several cases that will most likely reach the current court under Chief Justice John Roberts.

“We will see the endorsement test buried,” Klukowski predicted. “Roberts will jump on this and the coercion test will prevail.”

UDM Law professor Olson, who earned his degrees at Brigham Young University, specializes in constitutional law and the First Amendment. He said he prided himself as the only Federalist Society commentator to not criticize the incorporation of Establishment Clause to the states.

Concerning the main topic under discussion, however, he said, “Criticizing the Lemon test is the proverbial shooting fish in a barrel. The Lemon test is a horrible test. I can’t say how many law professors have said the Lemon test is aptly named. We have tried various things with Lemon over the years, and Lemon is a lemon.”

He said O’Connor’s endorsement test has resulted in the notion that a government Nativity scene is OK “as long as you sprinkle others all around.”

“The court has created a complete and utter mess,” Olson said. “That’s sad but true.”

The question now is whether the court pulls back and says the Establishment Clause does not apply to the states. To do so would not be appropriate under the 14th Amendment, Olson said, and “not sound law.”

The 14th Amendment was adopted in 1868 as one of the Reconstruction Amendments. Under the Citizenship, Due Process and Equal Protection clauses, the 14th Amendment provides individual protection from arbitrary state legislatures.

“The fact of the matter was Black was right on,” Olson said in reference to Everson v. Board of Education where the associate justice said the Establishment Clause applied to the states. “The

Establishment Clause is in the same position of all the Bill of Rights in that it (originally) limited federal power and no other. But to those who framed the 14th Amendment, it was the power of the states that they were concerned about. … They knew the capacity for (state) legislative tyranny.”

One student asked if whether the United States was further away from tyranny today than were the colonists.

“Yes and no,” Olson answered. “There is no threat of a government-established religion. In the broader sense, we have cause for concern. I am afraid the court will set aside some enactments simply because people of faith voted for them. If we disenfranchise people of faith, we are in trouble.”

Klukowski pointed out how much more homogenous the founders were than are U.S. citizens today.

“It was extraordinarily pure (as far as religious beliefs were concerned),” he said. “The past decade has seen a profound explosion in other concentrations of people with very different beliefs,” many of which are diametrically opposed to one another.

“I would not support any state or locally established religion,” he said.

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