When Life Gives You Lemons, You Ignore Them: The State of the Lemon Test After American Legion v. American Humanist Society

By Lauren Malm.

The Establishment Clause and the Lemon Test

The First Amendment provides that “Congress shall make no law respecting an establishment of religion.” Commonly known as the “Establishment Clause,” this clause prohibits government promotion or entanglement with religion and religious organizations. While government can provide religious organizations with general public benefits like fire or police protection, the question becomes: at what point does government action move from general benefits to an unconstitutional establishment of religion?

The Supreme Court attempted to distill all Establishment Clause jurisprudence into a single, three-pronged test in Lemon v. Kurtzman. To pass the Lemon test, a statute must have a “secular legislative purpose,” the primary effect must not “advance[] or inhibit[] religion,” and the statute must not foster an “excessive government entanglement with religion.” The Lemon test was meant to “bring order and predictability to Establishment Clause decisionmaking,” but has been repeatedly questioned. In Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., the late Justice Scalia described the Lemon test as “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”

Did American Legion Overrule Lemon?

It is perhaps not surprising that the current make-up of the Supreme Court shares Justice Scalia’s distaste for the Lemon test. The most recent challenge to the test came this summer in American Legion v. American Humanist Society. Applying the Lemon test, the Fourth Circuit held that a ninety-foot cross on public lands, memorializing soldiers who had died in World War I, violated the Establishment Clause. The Supreme Court reversed, finding that because the cross fell into the “categories of monuments, symbols, and practices with a longstanding history,” it did not violate the Establishment Clause.

In choosing not to apply the Lemon test, Justice Alito wrote for the four-Justice plurality that “it becomes more and more apparent that the Lemon test [can] not resolve” the vast array of fact-specific questions about a seemingly endless variety of government actions. However, the plurality did not explicitly overrule the test. Three separate concurrences condoning an outright overruling: Justice Kavanaugh wrote “this Court no longer applies the old test articulated in Lemon;” Justice Gorsuch referred to the test as a “misadventure;” Justice Thomas argued that the “long-discredited test set forth in Lemon” should be “overrule[d] . . . in all contexts.” Despite the lack of a majority opinion, six justices, across two opinions, agreed that Lemon should no longer be a controlling test.

However, Lemon is not without its defenders. In her concurrence, Justice Kagan wrote that although a “rigid application of the Lemon test does not solve every Establishment Clause problem . . . that test’s focus on purposes and effects is crucial in evaluating government action.” These mixed opinions leave very little clarity for district and circuit courts as to what the appropriate standard is in Establishment Clause cases.

It would be inaccurate to read American Legion as an explicit overruling of the Lemon test. However, this ambiguity means that the Court must either clarify the standard for Establishment Clause cases, or accept the disequilibrium and uncertainty created by this ambiguity.

The Uncertain State of Establishment Clause Jurisprudence and Upcoming Cases

While not explicitly overruled, Lemon certainly seems on its way out. It will be interesting to watch justices find the limits of their individual jurisprudence in coming days, as future cases test government action against Establishment Clause. The court will likely be called upon to explain their Establishment Clause jurisprudence and whether or not the Lemon test remains good law in any number of upcoming cases, including Espinoza v. Montana Dep’t of Revenue. We can only wait and see if the upcoming docket will clarify the state of the Lemon test and the future of Establishment Clause jurisprudence.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.

Lauren Malm
J.D. Candidate, 2021
Lauren Malm is a 2L Staff Writer at ASU Law. She graduated summa cum laude with honors from the University of Arizona, before earning a Masters in English Literature from the University of Oxford, Lincoln College. She enjoys rowing, reading, and sitting in the sunshine.

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