As is well known, many of America’s Founders fled Britain to escape religious persecution. They sought to create a nation and a form of government that allowed its citizens to practice their chosen religion without fear of persecution. That is the background that brought the First Amendment to our United States Constitution; the First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Unfortunately, the First Amendment has been used as a tool to keep religion out of government altogether. The multitude of cases challenging the constitutionality of government statutes based on the “separation of church and state” is overwhelming. The key test that is used to determine the constitutionality of a governmental statute involving religion is called the “Lemon Test,” as it came from Lemon v. Kurtzman. The following is a short overview of the case and the test.
Lemon v. Kurtzman involved statutes from Rhode Island and Pennsylvania that provided state funds to teachers in non-public schools. Funds from both statutes went predominately to teachers in Roman Catholic schools. Citizens and taxpayers from both states challenged the statute, claiming that they violated the Establishment and Free Exercise Clauses of the First Amendment. The statutes required that the funds go to teachers who taught only courses that were also taught in public schools and did not teach religion. However, the Court found that because “the parochial school system was an integral part of the religious mission of the Catholic Church,” the statute was unconstitutional.
In Lemon v. Kurtzman the court set up a three prong test to evaluate First Amendment claims. In deciding whether a state or federal statute violates the First Amendment, the court must consider: “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.”
So, the first two parts of the “Lemon Test,” as it is known, require a statute to have a legislative purpose that does not advance or inhibit religion, and this was not a problem in the case of the Rhode Island and Pennsylvania statutes. The Court stated that the legislative intent was not to advance religion, but rather, the goal of the legislation was to enhance secular education by maintaining minimum standards of the school systems.
The problem was the third part of the test, whether a statute would require excessive government entanglement with religion. For this part, the Court takes into account whether the statute would require continual governmental oversight. Applying this to the Rhode Island and Pennsylvania statutes, the Court stated, “A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected.” Thus, the state would be required to continuously be involved in the actions of the religious schools and their teachings. This constant governmental oversight is what caused the statute to be unconstitutional.
The Lemon Test has proven to be the starting point for every First Amendment religion case and an essential key to understanding the court’s reasoning.