Note: This is an educational course, not legal advice.
After Everson, the Court needed a test. Over fifty years it used several. Knowing them all matters, because the cases were decided under them. This unit teaches the religion clauses as law: what the clauses say, the tests courts use and the holdings. It takes no position on any faith or on religion itself.
| Test | Source | The question |
|---|---|---|
| Lemon test | Lemon v. Kurtzman (1971) | Does the law have a secular purpose? Is its primary effect one that neither advances nor inhibits religion? Does it avoid excessive government entanglement with religion? (A law had to pass all three.) |
| Endorsement | Justice O'Connor, concurring in Lynch v. Donnelly (1984) | Would a reasonable observer see the government as endorsing or disapproving religion? |
| Coercion | Lee v. Weisman (1992) | Does government coerce anyone to support or take part in religion? |
| History and tradition | Marsh v. Chambers (1983); Town of Greece v. Galloway (2014); American Legion v. American Humanist Association (2019) | Does the practice fit historical practices and understandings of the clause? |
Why it works
Lemon was criticized from many sides: it was hard to apply consistently, and the Court often ignored it. Supporters valued its clear questions about purpose and effect. In Marsh v. Chambers (1983) the Court upheld a legislature's paid chaplain because of the practice's unbroken history since the First Congress, without applying Lemon. In Town of Greece v. Galloway (2014) it upheld prayers opening town board meetings on the same ground. In American Legion v. American Humanist Association (2019) it held a 1925 cross-shaped war memorial could stay, saying longstanding monuments carry a strong presumption of validity. The Court said in 2022 that it no longer applies the Lemon test and looks instead to historical practices and understandings.
Key idea
Lemon (1971): secular purpose, primary effect, no excessive entanglement. Later: endorsement (Lynch concurrence) and coercion (Lee v. Weisman). For legislative prayer and old monuments, history and tradition (Marsh, Town of Greece, American Legion).
Worked example: Which test fits?
A judge in 1990 asks whether a "reasonable observer" would think the city is approving a religion by placing a display in city hall. Which test is that?
- The reasonable observer is the language of Justice O'Connor's concurrence in Lynch v. Donnelly (1984).
- She asked whether the government was endorsing or disapproving religion.
Answer: The endorsement test.
Worked example: Name the prongs
List the three prongs of the Lemon test.
- A secular legislative purpose.
- A principal or primary effect that neither advances nor inhibits religion.
- No excessive government entanglement with religion.
Answer: Secular purpose; primary effect neither advances nor inhibits religion; no excessive entanglement.
Common mistake
Treating the tests as one test. Lemon asks about purpose, effect and entanglement; endorsement asks what a reasonable observer would see; coercion asks whether anyone is pressured to take part; history asks whether a practice fits the nation's long tradition. Name the test before applying it.