I’m a bit late on this, but according to the New York Times, Alton Lemon died May 4 at age 84. Here’s a short precis of his life:
Alton Toussaint Lemon was born on Oct. 19, 1928, in McDonough, Ga., where his father owned a tailor shop. He received a degree in mathematics from Morehouse College in Atlanta in 1950.
In a 1992 interview with The Philadelphia Tribune, Mr. Lemon recalled playing basketball at Morehouse with the Rev. Dr. Martin Luther King Jr. “Before I married my wife, Martin used to say he would marry us for free someday,” Mr. Lemon said.
After service in the Army, Mr. Lemon settled in Philadelphia, earned a master’s degree in social work from the University of Pennsylvania, worked in a series of government jobs and was active in the N.A.A.C.P. and the American Civil Liberties Union. He was the first African-American president of the Ethical Humanist Society of Philadelphia, said Hugh Taft-Morales, the society’s current leader.
Nice credentials! But what Lemon is most famous for is as the plaintiff in a famous court case involving the separation of church and state, which gave rise to the so-called “Lemon Test” still used by judges in adjucating freedom-of-religion cases (see the Supreme court decision below).
Mr. Lemon’s lawsuit challenged a 1968 Pennsylvania law that reimbursed religious schools for some expenses, including teachers’ salaries and textbooks, so long as they related to instruction on secular subjects also taught in the public schools.
Chief Justice Warren E. Burger, writing for the court in Lemon v. Kurtzman, said the law violated the First Amendment’s prohibition of government establishment of religion.
The ruling set out what came to be known as the Lemon test, which requires courts to consider whether the challenged government practice has a secular purpose, whether its primary effect is to advance or inhibit religion, and whether it fosters excessive government entanglement with religion.
. . . The Lemon test has been criticized for its opacity and its malleability, but it remains in widespread use. “It’s still the leading establishment-clause case in the sense that every lower-court judge has to slog through it before deciding a case,” said Douglas Laycock, a law professor at the University of Virginia.
Lemon was one of nine plaintiffs in the lawsuit—three private individuals and six organizations. His name was first on the filing, which ultimately led to the shorthand of “Lemon Test: for the decision. The case worked its way up to the Supreme Court, where the use of government funds in religious schools (a wall now eroding with the odious voucher system) was affirmed by all nine justices (it was decided along with a similar case from Rhode Island). It has not been overturned by more recent Supreme Court decisions, despite the conservative and pro-religious stance of today’s Court.
Here’s an excerpt from Chief Justice Warren Burger’s decision in the Lemon v. Kurtzman case: I’ve put in bold the three prongs of the “Lemon Test”:
Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion,Board of Education v. Allen, 392 U.S. 236, 243 (1968). finally the the statute must not foster “an excessive government entanglement with religion.” Walz, supra, at 674.
. . . Finally, nothing we have said can be construed to disparage the role of church-related elementary and secondary schools in our national life. Their contribution has been and is enormous. Nor do we ignore their economic plight in a period of rising costs and expanding need. Taxpayers generally have been spared vast sums by the maintenance of these educational institutions by religious organizations, largely by the gifts of faithful adherents.
The merit and benefits of these schools, however, are not the issue before us in these cases. The sole question is whether state aid to these schools can be squared with the dictates of the Religion Clauses. Under our system, the choice has been made that government is to be entirely excluded from the area of religious instruction, and churches excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that, while some involvement and entanglement are inevitable, lines must be drawn.
Ah—the Burger court! Look at those names on the decision: Burger, Black, Harlan, Douglas, Stewart, Marshall, Blackmun, Brennan, and White. Now those were halcyon days for progressives!
The Lemon test has figured important in legal defenses of evolution in the U.S. In 1980, for instance, Judge William Overton’s decision in McLean v. Arkansas Board of Education, a case in which he rejected an Arkansas law mandating the teaching of “creation science” along with evolution in the public schools. Here’s Overton’s citation:
Most recently, the Supreme court has held that the clause prohibits a state from requiring the posting of the Ten Commandments in public school classrooms for the same reasons that officially imposed daily Bible reading is prohibited. Stone v. Graham, 449 U.S. 39 (1980). The opinion in Stone relies on the most recent formulation of the Establishment Clause test, that of Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971):
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.” [ Stone v. Graham, 449 U.S. at 40.]It is under this three part test that the evidence in this case must be judged. Failure on any of these grounds is fatal to the enactment.
And let me add my favorite part of Overton’s eloquent decision, which is in the closing:
The application and content of First Amendment principles are not determined by public opinion polls or by a majority vote. Whether the proponents of Act 590 constitute the majority or the minority is quite irrelevant under a constitutional system of government. No group, no matter how large or small, may use the organs of government, of which the public schools are the most conspicuous and influential, to foist its religious beliefs on others.
Of course, some readers and prominent bloggers think that at public universities it is perfectly all right for teachers to foist their religious beliefs on others.
Finally Judge John E. Jones III relied heavily on the Lemon test in his decision in the Kitzmiller et al v. Dover Area School District et al. when striking down the teaching of Intelligent Design in a Pennsylvania High School in 2005. From Jones’s decision:
Although we have found that Defendants’ conduct conveys a strong message of endorsement of the Board members’ par ticular religious view, pursuant to the endorsement test, the better practice in this Circuit is for this Court to also evaluate the challenged conduct separately under the Lemon test.18 See Child Evangelism, 386 F.3d at 530-35; Modrovich, 385 F.3d at 406; Freethought, 334 F.3d at 261.
. . . The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the Board’s ID Policy violates the Establishment Clause. In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents.
Public universities are, of course, “organs of government,” so there’s nothing there to exempt universities from the ruling. Wouldn’t it be interesting to see if the First Amendment applies to state-supported colleges?
