The “Three-Part Lemon Test”
In cases decided after 1971, it is common to begin opinions concerning the
establishment clause by reciting standards summarized in Chief Justice Burger’s opinion for the Court in Lemon v. Kurtzman, 403 U.S. 602, 612–613 (1971). To be valid against attack under the Establishment Clause:“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.’ ”
Despite their apparent simplicity, the three “Lemon standards”—which will be examined time and again in the cases to follow—have substantial ambiguities and remain controversial. --Casebook p. 1767-1768
Under the Lemon test, government may not advance or inhibit religion.
If we take this test seriously, and apply the no inhibition rule with the same enthusiasm as the no advancement rule, where would we end up?
What kinds of governmental laws, activities, and policies have the effect of inhibiting religion?
What are your thoughts?
If we take this test seriously, and apply the no inhibition rule with the same enthusiasm as the no advancement rule, where would we end up?
What kinds of governmental laws, activities, and policies have the effect of inhibiting religion?
What are your thoughts?
Purpose Prong
Consider the following examples under the Lemon test.
Assume that back in the 1960s, the state legislature of Nebraska has had a religious experience after listening to a sermon on race and poverty delivered by the Rev. Martin Luther King. Convinced that Jesus would be pleased if it took action, the Nebraska legislature states that "for the purpose of obeying the commands of Christ to love our neighbor as we love ourselves and to help the poor and the oppressed," it legislates a law outlawing discrimination on the basis of race in places of public accommodation and a law providing health care to children from non-affluent families.
Are these laws facially unconstitutional under the Lemon test? Is it wrong for a state legislature to pass laws helping those in need of help if they are primarily motivated by their religious convictions?
By the way, MLK had a lot to say about justice and the law, a topic he engaged forcefully in his historic "Letter from Birmingham City Jail," an open letter, dated 16 April 1963, to "My dear Fellow Clergymen" designed to explain Dr. King's decision to engage in peaceful acts of civil disobedience. Here is an excerpt in which he explains the difference between a "just" law and an "unjust law":
Assume that back in the 1960s, the state legislature of Nebraska has had a religious experience after listening to a sermon on race and poverty delivered by the Rev. Martin Luther King. Convinced that Jesus would be pleased if it took action, the Nebraska legislature states that "for the purpose of obeying the commands of Christ to love our neighbor as we love ourselves and to help the poor and the oppressed," it legislates a law outlawing discrimination on the basis of race in places of public accommodation and a law providing health care to children from non-affluent families.
Are these laws facially unconstitutional under the Lemon test? Is it wrong for a state legislature to pass laws helping those in need of help if they are primarily motivated by their religious convictions?
By the way, MLK had a lot to say about justice and the law, a topic he engaged forcefully in his historic "Letter from Birmingham City Jail," an open letter, dated 16 April 1963, to "My dear Fellow Clergymen" designed to explain Dr. King's decision to engage in peaceful acts of civil disobedience. Here is an excerpt in which he explains the difference between a "just" law and an "unjust law":
You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask: "How can you advocate breaking some laws and obeying others?" The answer is found in the fact that there are two types of laws: there are just and there are unjust laws. I would agree with Saint Augustine that "An unjust law is no law at all"
Now what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of Saint Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority, and the segregated a false sense of inferiority. To use the words of Martin Buber, the great Jewish philosopher, segregation substitutes an "I-it" relationship for the "I-thou" relationship, and ends up relegating persons to the status of things. So segregation is not only politically, economically and sociologically unsound, but it is morally wrong and sinful. Paul Tillich has said that sin is separation. Isn't segregation an existential expression of man's tragic separation, an expression of his awful estrangement, his terrible sinfulness? So I can urge men to disobey segregation ordinances because they are morally wrong.
What do you think? Are Dr. King's views about justice more or less persuasive because of the clear religious source of his understanding of just and unjust laws? If the Government acts based upon MLK's notion of just laws, would it violate the Establishment Clause?
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