The Bladensburg World War I Memorial in Bladensburg, Maryland. It’s hard to think of a more aptly named legal doctrine than the Supreme Court’s Lemon Test. Created in 1971’s Lemon v. Kurtzman , it is meant to determine when government action violates the Establishment Clause of the First Amendment. The test’s three prongs require government programs to 1) have a secular legislative purpose, 2) primarily neither advance nor inhibit religion, and 3) not create an excessive entanglement with religion. It has been the subject of almost universal scorn ever since its birth. The first prong is vague, easy to avoid, or just wrong. You can divine a secular purpose for almost any law, and legislators who are religiously motivated can simply dissemble. It’s also not clear why or even how government officials should shed their deepest beliefs when making policy. For instance, if a Catholic legislator voted to increase welfare benefits because of her faith, that would in theory violate the secular-purpose prong. But it’s the second and third prongs that truly make the test incoherent. The only way to tell if a government program’s primary effect is to advance religion is to closely monitor participating groups, thereby creating […]
