Lemon and Endorsement Tests

A.  Lemon test

For many years, the Court exclusively used the Lemon test to analyze Establishment Clause issues - under Lemon, a challenged government program is constitutional if it satisfies a 3-prong test - (1) if it has a secular legislative purpose (that is not a sham), (2) a principal or primary effect that neither advances nor inhibits religion and (3) does not create an excessive government entanglement with religion. While the Supreme no longer uses the test in every Establishment Clause case, it has never been overruled and it was used in 2000 in Santa Fe Independent School District v. Doe, the football prayer case. Lower courts still commonly apply the Lemon test as one of several alternative tests they apply to analyze the constitutionality of government action challenged under the Establishment Clause. This is particularly true in cases which involve religious activity in the public school context.

B.  Endorsement Test

Justice O’Connor suggested a refinement (or clarification) of the Lemon test (see Justice O'Connor's opinion concurring in the judgment in Wallace v. Jaffree. Under her approach, both the purpose and effect prongs of Lemon are examined through the lens of endorsement. Under this clarification, the issue is whether the government has a purpose to endorse religion and whether the effect of the challenged practice is to endorse religion so as to “send a message to nonadherents that they are outsiders, not full members of the political community” and a “message to adherents that they are insiders, favored members of the political community.” Under Justice O’Connor’s version of the test, whether the effect is to endorse religion or not must be viewed from the vantage point of “a reasonable observer who evaluates whether a challenged governmental practice conveys a message of endorsement of religion.” In her view, “the reasonable observer is knowledgeable and aware of the history and context of the community and the situation in which the religious practice occurs.” Even though Justice O’Connor offered her endorsement test as a gloss on Lemon rather than as a separate test, the endorsement test is often used by lower courts as an alternative to the Lemon test. Typically such courts alternatively analyze the case under Lemon and the endorsement alternative. The endorsement test has been criticized, much as the Lemon test has, by some members of the Supreme Court including Justice Kennedy. However, it is sometimes used in opinions of the Court either as a gloss on Lemon or as alternative to Lemon and has been used by the Court to evaluate the constitutionality of public school practices such as school prayer.

B.  Intrusion of Religion into the Public Schools

1.  Application of the Lemon and Endorsement tests

Purpose Prong

The purpose prong is particularly important in cases in which religion is introduced into the public schools, as in the school prayer cases, and often is the basis for the Court’s invalidation of the challenged practice (e.g., Stone v. Graham and Wallace v. Jaffree). In these cases, the Court looks to evidence of purpose found, for example, in statements of the law’s sponsors and the history of the enactment of the law. Even if the government asserts a secular purpose, the Court may be willing to find that the asserted purpose is a sham as in Edwards v. Aguillard, the creation science case, and Santa Fe Independent School District v. Doe, the football prayer case. The Court states that it will defer to a plausible secular purpose, but not if the secular purpose is a sham. In addition, if the law is justified by more than one purpose, the purpose prong only requires that one plausible purpose for the law must be secular. For example, the daily recitation of the Pledge of Allegiance in a public school classroom can satisfy the purpose prong because the school district’s purpose in reciting the Pledge may be to encourage patriotism rather than religion, despite the inclusion of the “under God” language.

Effect

The effect prong may be violated as well when religious practices such as prayer are introduced into the public schools. In such cases, the Court also may rely on Justice O’Connor’s endorsement test and find that the government intends to convey a message of endorsement of religion and that the objective, knowledgeable observer will perceive such a message. In the prayer cases, when relying on whether the government will be perceived to endorse a religious message, a key distinction is between government-sponsored prayer and private prayer. Government sponsorship will be found when there are indicia of state involvement as in the football prayer case even if the prayer is recited by a student speaker. In addition to an impermissible effect of endorsement of religion, an additional aspect of effect in the school prayer cases is focused on by Justice Kennedy in Lee v. Weissman. In that case, he focuses on the psychological coercion experienced by those that attend the graduation ceremony to participate in the prayer or at least to stand in respectful silence. Some members of the current Court, particularly Justices Scalia and Thomas, but not yet a majority, view coercion more narrowly to only exist when there is legal compulsion to attend or specific penalties attached to non-attendance. Moreover, for those members of the Court coercion is not just an aspect of the effect prong, but is instead a required element of an Establishment Clause challenge. In their view, government religious exercises do not violate the Establishment Clause in the absence of coercion. However, Justice Scalia would require such noncoercive religious exercises, such as graduation prayer, to be nondenominational.

In Newdow, some members of the Court who reached the merits of the case distinguished the effect of the recitation of the Pledge of Allegiance from the recitation of a prayer. For Chief Justice Rehnquist, the Pledge was a patriotic exercise rather than a religious one and therefore the Establishment Clause was not implicated at all. For Justice O’Connor, the Pledge was acceptable as ceremonial deism that had a secular purpose (either to reflect the country’s history or to solemnize an occasion) and did not create the appearance of endorsement of a particular religion or even religion in general.

Entanglement

Entanglement issues surface on occasion in the cases in which a religious practice occurs in a public school setting. One example of this is in Lee v. Weissman where the school administration gave guidelines to the clergy member invited to recite a prayer which guidelines were designed to spell out the characteristics of a suitable ceremonial prayer to mark the occasion. Doe, the football prayer case, was also notable because it was one of the rare recent cases where the Court was concerned with the political divisiveness aspect of excessive entanglement. The Court feared that such divisiveness would result from subjecting the prayer decision to a vote of the student body.