Feb 26, 2019
Two years after his death, the late Supreme Court Justice Antonin Scalia is missed for many reasons, not least among them his colorful writing style. In one notable opinion, Scalia said this: "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."
"Lemon" here is Lemon v. Kurtzman, the name of a case decided by the Supreme Court in 1971. Chief Justice Warren Burger, writing for the court, therein proposed a new way of settling the question of whether something that the government says or does that touches on religion amounts to a religious "establishment" in violation of the Constitution's First Amendment.
The Lemon test has three parts – "prongs," Burger styled them – any one of them capable of rendering a church-state interaction unconstitutional: a "legitimate secular purpose," a primary effect that "neither advances nor inhibits" religion, and no "excessive entanglement" between government and religion.
Using this test, the Burger court ruled that state laws in Pennsylvania and Rhode Island that provided modest salary supplements for nonpublic school teachers teaching secular subjects (and, in Pennsylvania, using state-supplied secular textbooks) were an unconstitutional establishment of religion inasmuch as most of the schools were Catholic ones and Catholic schools further the Church's religious mission