Saturday, March 31, 2012

Separation of Church and State: The Lemon Test


As I mentioned in my previous entry, most of my posts from now until the end of the semester will be me (who else?) contemplating and trying out ideas for essays.  Basically, I'm apologizing in advance for what might end up as "rambling".  For my philosophy of law paper I'm thinking of doing something about interpretation of the 1st Amendment clause concerning establishment of religion.  Originally, I thought I'd focus on this issue in relation to attempts to get creationism into the science curriculum but I fear that the content will be too heavily weighted towards legal interpretation rather than philosophical analysis.  Anyhow, I'm thinking about looking at the philosophical issues surrounding why the establishment clause was originally written into the Bill of Rights, the different ways it is interpreted, and the philosophical implications of each interpretation, and which interpretation best accomplishes the philosophical aims of the clause.

Also something went crazy with the layout so I apologize for that.

Intro the First Amendment Regarding Establishment of Religion

The First Amendment (in the context of religion) is often referred to as the establishment clause because it prohibits Congress congress from making any law respecting the establishment of any religion and impeding free exercise of religion.  (Note, it has been extended to laws at the state level since 1925).

Before we put on our philosopher beards, lets look at the actual law: 

Congress shall make no law respecting an establishment of 

religion, or prohibiting the free exercise thereof (then some 

shit about free speech, freedom of the press, assembly, 

blah, blah, blah).

So, what's the point of the law?  It seems it's to make it so 

government neither promotes one religion over another or 

interferes in anyone's ability to practix their religion of choice, and 

maybe to secure freedom from being coerced into a particular 


The clauses work together in that if government were to enact 

policy that gave preference to one religion (or branch of a 

religion), it would be a hop, skip, and a jump away from 

interfering others' ability to practix their own religion.   

Conversely, by interfering in someone's/some group's ability to 

practix religion, they'd be tacitly endorsing others.  

There are lots of instances where the manner in which this law 

should be applied is pretty clear, and we never hear about those 

because they never make it to court.  There are however other 

instances where it's not so clear how or if the establishment clause 


Two Interpretations

There are 2 basic interpretations of the law: the separationist and 

the accommodationist.  Obviously, the separationist view is that 

there should be a strict separation of Church and State.  The 

modern separationist interpretation (the standard one) was first 

invoked in 1971 in Lemon v. Kurtzman.  In this case private 

religious-based schools were axing for money to supplement

teachers' salaries who taught secular content.  Out of this case 

arose what is called the Lemon test.  The purpose of the test is to 

determine whether a proposed piece of legislation constitutes the 

establishment of religion, thereby violating the establishment 


The Lemon Test

Here it is--check it!

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; third, the statute must not foster "an excessive government entanglement with religion."

Regarding the first section, it is noted that a law can also have 

religious motivations and still be constitutional, but it's primary 

purpose must be secular.   The second section is self-explanatory.  

The third has faced the most criticism and has been interpreted 

various ways.  

One interpretation of the third part is that it is only the effects of 

the proposed law that cannot bring about Church-State 

entanglement.  For example, most "Church" charities are actually 

largely funded by the government.  Because government doesn't 

administrate or regulate the charities (possible problem?) these 

types of policies have not been interpreted as "excessively" 

entangling gov't with religion. 

Another consideration in interpreting the third section of the 

Lemon test is the purpose of the law.  Hospitals and universities 

are institutions considered to have secular purposes, for this 

reason, a law which approves funding to such institutions even if 

they have religious affiliations can be (and has been) considered 


One can make the argument that accommodationists are "less 

concerned about the dangers of establishment and less concerned 

to protect free exercise rights, particularly of religious minorities."  

Basically, as I mentioned before, if you give an advantage to one 

religious group it is very easy for smaller groups to be prejudiced 

against and not be able to compete for souls on a level playing 

field.  Er'body knows that whatever religion ends up with the most 

souls wins.  It's unfair for gov't to help one team while not helping 


The accommodationist position is best summarized by the opinion 

of Justice Douglas in Zorach v. Clauson: "Accommodationists read 

the establishment clause as prohibiting Congress from declaring a 

national religion or preferring one to another, but laws do not have 

to be shorn of morality and history to be declared constitutional". 

They apply Lemon only selectively because "[w]e are a religious 

people whose institutions presuppose a Supreme Being". 

Oy! Where to begin!  For my paper I'm going to attack the clause 

"do not have to be shorn of morality and history" because a) the 

(absurd) implication is that the is no morality without religion (or 

that our moral values are derived from religion) and b) that this is 

what the writers of the constitution intended and/or that this 

interpretation is implied by the historical circumstances at the time 

of the writing.  It seems Justice Douglas is taking liberties with his 

psycho-analysis of James Madison.  

Obviously, the claim that the US gov't institutions presuppose a 

Supreme Being is also pretty loony.  Suppose it is true.  What does 

that tell us about our sexual preference?  Exactly, it's irrelevant.  

Someone please tell me how the existence or non-existence of a 

Supreme being is relevant to EPA legislation.  
Arguments for Interpretation

I should add that the separationists, to support their position, 

appeal to one of Jefferson's letters in which he uses the phrase and 

advocates the view of "separation of church and state".  Also in 

1879 Chief Justice Waite consulted with historian G. Bancroft to 

discuss Madison's (author of the 1st Amendment) "Memorial and 

Remonstrance against Religious Assessments".  In that petition 

Madison proposes there should be "a great barrier" between 

Church and State.

This brings up the issue of how interpretation is done in 

constitutional law:  do you strictly interpret the letter of the law in 

the way it would have been understood in its era?  Or do you make 

allowances with the understanding that what made sense in one era 

might not now, and that law-makers can't foresee all future 


Maybe you argue for interpretation based on intent, but how do 

you know the authors intent?  Do you have a time-travel machine 

and a mind reading machine?  It is almost certain that our own 

biases will be read into how we "interpret" the intent of a 


Anyway, I think this is a productive start.  I think I'll go though 

some of the major trials and read judges opinions and go from 

there.  I welcome any comments or suggestions.  Thanks for 

putting up for the scattered writing...


By the by, if you're interested in reading G. Madison's "Memorial 

and Remonstrance against Religious Assessments"  here's the link 

(it's not very long):

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