May 28, 2013

Alton T. Lemon, 1928 - 2013

Alton T. Lemon, the plaintiff in a landmark Supreme Court case on the separation of church and state, has died at the age of 84. A very private man, little is known of his life apart from his membership in the American Civil Liberties Union and brief time as president of a Philadelphia Ethical Humanist Society. His obit didn't make the New York Times until 21 days after his death.

In the late 1960s, though, he lent his name to the lawsuit where the Supreme Court established the three-part legal test for determining whether or not a government has violated the constitution by "respecting an establishment of religion." Wherever American lawyers debate whether or not a government has, in fact, gone so far as to endorse a religion, Lemon's name is invoked.

Asked about his role in First Amendment history, Lemon said he was proud to have been involved in Lemon v. Kurtzman, but:
I have never sought public recognition for my role in the case. Almost all of our friends are Protestant and some don’t understand my position. We had one friend who was a schoolteacher who thought it was terrible that God was being removed from the schools .... Some people go down in history in famous books, but I might go in a dusty law book or something. I don’t view things out of proportion.
It's not just the dusty history books, though. The three-part establishment test that bears Lemon's name, the Lemon Test, is a contentious bit of jurisprudence. It has been attacked from a number of directions and may not survive the John Roberts court.

The two most conservative justices on the court, Antonin Scalia and Clarence Thomas, issued a blistering attack on the Lemon test in 1993. In a concurrence authored by Scalia, the Lemon Test was described as "Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad." Especially bothered by the inconsistent use of the judicial standard, Scalia accused his fellow justices of invoking or ignoring the Lemon Test as suited their purposes.

"Such a docile and useful monster," he wrote, adding:
For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced .... I will decline to apply Lemon -- whether it validates or invalidates the government action in question.
One need not endorse either Scalia's legal philosophy or his argumentative style to think there's a problem with the Lemon Test. It's maddeningly vague and wide open to wildly divergent interpretations.

According to the Lemon Test, a government has endorsed a religion if:
  • a law is passed which does not have "a secular legislative purpose,"
  • a statute's "principal or primary" effect is either to advance or inhibit religion,
  • a governmental action results in "excessive government entanglement with religion."
In that decision, then-Cheif Justice Warren Burger said the test was necessary because of the vagueness of the First Amendment prohibition of "respecting an establishment of religion," and because the constitutional guarantee does not just prohibit a state religion, but many other state-religion interactions as well.

As Burger wrote:
The language of the Religion Clauses of the First Amendment is, at best, opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead, they commanded that there should be 'no law respecting an establishment of religion.' A law may be one 'respecting' the forbidden objective while falling short of its total realization. A law 'respecting' the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion, but nevertheless be one 'respecting' that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment.  
In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: 'sponsorship, financial support, and active involvement of the sovereign in religious activity.'
The lines that have been drawn, though, are hardly clear ones. How can the secularity of a law be determined? By what measure is the "primary" effect of a law to be judged? An entanglement should be considered excessive in comparison to what? And to whom does it have to seem excessive?

In at least 20 recent federal court cases, the Lemon Test has been used in different and inconsistent ways. Judge Richard Posner, a Reagan appointee, described the Lemon Test as "formless, unanchored, subjective." In a 1980 ruling, written by Kennedy-appointee Byron White, the Supreme Court noted that the Lemon Test lacked "clarity and predictability," two things typically valued in a law.

Legal scholar J.H. Choper, who clerked for Earl Warren and now teaches at Berkley, said the endorsement test that bears Alton T. Lemon's name "fails to provide a judicial standard capable of principled application." According to Choper, "application of the Lemon test generated ad hoc judgments incapable of being reconciled on any principled basis," and resulted in a kind of "conceptual disaster area."

This conflict and confusion is at issue in two current cases which could give the Supreme Court the opportunity to revisit the question of the Lemon Test.

The court has agreed to hear Town of Greece v. Galloway this term, and decide whether prayers offered by private citizens to open town council meeting violates the First Amendment prohibition on respecting establishments of religion. A lower court, citing the Lemon Test, concluded that because the majority of such prayers were Christian, the town was effectively affiliating with the Christian faith. A central part of the dispute is over whether the second prong of the Lemon Test -- the matter of primary purpose -- should be measured in terms of intent or effect.

The court is also considering hearing Elmbrook School District v. Doe, a case where graduation ceremonies were held in an evangelical church. There's no dispute this was done for practical reasons, but the lower courts have disagreed on whether or not the school's use of the religious space was excessive entanglement and over whether or not it advanced religion. One lower court ruled that observers would be able to separate the religious symbols of the church sanctuary from the proceedings.  Another disagreed, concluding that "Regardless of the purpose of school administrators in choosing the location, the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state."

It's possible that rulings on either or both of these cases could substantially transform the test by which "respecting an establishment of religion" is judged.

The late Lemon, for his part, reported being worried in the last decade of his life that the courts would erode the legal separation of church and state. He wasn't worried about the judicial standard that bore his name per se, but was bothered by the trend he saw of conservative justices  allowing for government endorsements of Protestantism. In 2003, he told the Philadelphia Inquirer that "separation of church and state is gradually losing ground, I regret to say."

A year later, he expressed his suspicions that conservatives would establish a state church, if they could.

"At this point in my life," the then-76-year-old said, "I seriously wonder why we have religion. I am not so sure it does more good than harm. I think that the battle for church-state separation has to be a continuing fight."

And, judging by the contentions over the Lemon Test, it is.