Aptly named "Lemon test" sucks
The ambiguity and subjectivity of the Lemon test often lead to inconsistent results, and either scrapping or modifying the test has been strongly considered. Consider the "purpose" prong, for example. This is generally defined as follows: "The government's action must have a legitimate secular purpose." But must this "legitimate secular purpose" be an intended purpose, or can it be a commonly perceived purpose or even just any arguable purpose? How are intentions to be determined? Is it the purpose of just the government officials, or can it also be the purpose of the constituents who influence the government officials? Which and how many government officials or members of the public should be included when determining the purpose? Should the intended "purpose" be considered at all, since different people have different purposes and what really counts anyway is the "effect"? How can a decision be universally applicable if it is wholly or partly based on people's purposes or motives? These questions have been answered in different ways by different decisions that have used the Lemon test. And even after these questions are answered, there is a lot of subjectivity in applying the chosen definition of "purpose."
A judicial test called the "endorsement test" has also been used in establishment clause cases, sometimes as a refinement of the Lemon test.
The judges are supposed to apply the Lemon test from the standpoint of an imaginary "objective observer," sometimes called a "reasonable observer." But how well informed should the imaginary objective observer be about the challenged action: just minimally informed, well informed, or very well informed (as was Judge Jones after hearing about three weeks of expert testimony in the Dover case)? Should the objective observer be familiar with the local history of the challenged action? One hundred years from now, would it matter to an objective observer what the current local history of the challenged action is?
It has been argued -- correctly, I believe -- that the Lemon test actually conflicts with the Constitution's Free Exercise Clause. For example, to avoid being charged with religious motivation under the Lemon test, people will tend to avoid free exercise of their right to express religious belief. This avoidance goes beyond merely avoiding expressing religious belief in connection with something that might be considered to be an Establishment Clause violation; to avoid a charge of religious motivation, people will tend to avoid all statements of religious belief and avoid connections with religious organizations, including church attendance. There is a double standard here -- Darwinists like Kenneth Miller are free to express their religious beliefs and say that their belief in Darwinism is consistent with and even based upon their religious beliefs, but critics of Darwinism do not have this freedom. Religious motivation is not fatal under the Lemon test, because religious motivation is OK if a legitimate secular purpose can be shown, but it is safest to avoid charges of religious motivation altogether. The Lemon test has other conflicts with the Free Exercise Clause -- see "Why Separation Is Not the Key to Church-State Relations".
Application of the Lemon test went completely berserk in the Kitzmiller v. Dover and Selman v. Cobb County decisions, where this test was (1) used to ban things that neither mentioned anything religious nor contained any religious symbols and (2) used to ban things for a reason having nothing to do with religion, that reason being to suppress scientific ideas that some people disagree with.
Many of the supporters of the Dover and Cobb County decisions think or pretend to think that these decisions were inevitable, but judges have a lot of latitude in making decisions. And these supporters of the decisions see no conflict between their belief that the decisions were inevitable and their inability to exactly predict the decisions.
Please don't get me wrong -- I am a strong supporter of church-state separation. For example, I am strongly opposed to school prayer. However, I think that church-state separation often goes too far. Often the fear of government promotion of religion does not just border on paranoia but is paranoia.
I am no great fan of Supreme Court Justice Antonin Scalia, but I found his description of the Lemon test to be especially apt: "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 once again .....no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart...and a sixth has joined an opinion doing so........When we wish to strike down a practice it forbids, we invoke it....when we wish to uphold a practice it forbids, we ignore it entirely.......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." Citations omitted. -- from Concurrence in Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-99 (1993). Justice Scalia wrote those words way back in 1993, and now it is 2006 and this "ghoul" still haunts us.
Labels: Establishment clause