The James Wilson Foundation on Natural Rights and the American Founding

“Lemon v. Kurtzman at 50” – Francis Beckwith in Law and Liberty

by James Wilson Institute on June 1, 2021

In an article at Law and Liberty, JWI Scholar Francis Beckwith traces the history and eventual demise of the Lemon Test created by Chief Justice Burger in Lemon v. Kurtzman on its 50th anniversary. The Court has inconsistently applied the Lemon Test for years, amending or ignoring its different prongs as it wishes. Lacking any basis in the history or text of the First Amendment and creating a preference for secularism over religion, Beckwith argues that the test is not only flawed, but based on precedent created in the last 50 years that has emphasized separation of Church and State. However, after explaining its origins, holding, and aftermath, Beckwith looks hopefully at the composition of the current Court and ultimately declares that Lemon is (thankfully) dead.

Some excerpts from the piece:

“As one can readily see, there seems to be a tension in Black’s understanding of the religion clauses of the First Amendment. He seems to be saying that it is a violation of the Free Exercise Clause for the state to single out religion for exclusion from certain public benefits, while at the same time saying that it is a requirement of the Establishment Clause for the state to single out religion for exclusion from certain public benefits.”

“For many justices, the Lemon Test is a short-hand way to reinforce a no-aid interpretation of the Establishment Clause. For some, like the test’s author, Chief Justice Burger, it is merely a rule of thumb that the Court is free to apply or not apply depending on the circumstances of the case. But for others, like Justice Antonin Scalia, the Lemon Test is a hermeneutical fabrication with no relation to the text of the First Amendment and its original meaning.”

“Because it is rooted in post-1947 Court opinions and not on how the “establishment of religion” was generally understood when the First Amendment was ratified, the Court’s application of the Lemon Test often seems ad hoc, counter-intuitive, and only superficially connected to the historical realities that gave rise to the Establishment Clause.”

“Nearly thirty years ago, in a colorful passage from his concurrence in Lamb’s Chapel v. Center Moriches Union School District (1993), Justice Scalia bemoaned the resiliency of Lemon: “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.” Given the current trajectory of the Court, it seems that these fears are now unfounded. Lemon, at the age of 50, is finally dead and buried for good. May it rest in peace.”

Read the full piece here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790