Lemon and Endorsement Tests are incompatible
The Endorsement Test is based on a paragraph in a concurring opinion of Justice O'Connor in Lynch v. Donnelly, 465 U.S. 668 (1984). So far as I know the paragraph's statement of the test has not been modified by the court and remains the official statement of the test. Here is the paragraph(465 U.S. 668, 687-688), quoted in part:
The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions. . . .The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message. (emphasis added, citations omitted)
In my previous discussions of the endorsement test, I have focused on the "political insider/outsider" stuff of the last sentences above. Now I want to focus on the first sentence. I assert that the first sentence prohibits courts from considering religious motivations as a factor in determining whether there has been an Establishment Clause violation, because such consideration would -- according to the first sentence -- violate the Establishment Clause's prohibition on making adherence to a religion relevant to a person's standing in the political community. I assert that the first sentence is an important part of the statement of the test and should not be arbitrarily dropped from the statement of the test -- a feeling of bad standing in the community as a result of religious beliefs would result in a feeling of "political outsider" status. IMO the way the test should be applied is by a determination of whether there is an endorsement or disapproval that has the effect of making some people feel like political insiders or outsiders. For example, the Dover evolution disclaimer statement said nothing overtly religious (except that perhaps the term "intelligent design" implies the existence of a supernatural designer) and only evolution was actually taught, so this statement should not reasonably have the effect of making anyone feel like a "political outsider." On the other hand, censoring the statement on the grounds that it expresses endorsement of religion would make some people feel like "political outsiders" and hence would be unconstitutional under the Endorsement Test.
The Lemon Test, named for Lemon v. Kurtzman, 403 U.S. 602 (1971), originally consisted of three parts or "prongs":
1. The government's action must have a secular legislative purpose;
2. The government's action must not have the primary effect of either advancing or inhibiting religion;
3. The government's action must not result in an "excessive government entanglement" with religion.
The first prong, or "purpose" prong, requires determination of whether the public officials who are responsible for the government's action in question have religious motivations.
The second and third prongs are often combined into a single "effect" prong. The Selman v. Cobb County district-court opinion says,
Both the Supreme Court and the Eleventh Circuit have acknowledged that the second and third prongs of the Lemon test are interrelated insofar as courts often consider similar factors in analyzing them. . . . . In fact, the Eleventh Circuit, like several other circuit courts, has combined the second and third prongs of the Lemon analysis into a single "effect" inquiry. . . . The Court will do the same in the instant Order. (citations omitted)
IMO the best way to resolve this conflict between the Lemon Test and the Endorsement Test is to get rid of the Lemon Test, which is already highly disfavored. As long ago as 1993, Justice Scalia wrote of the Lemon Test,
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).
The Supreme Court can hardly expect lower courts to use the Lemon Test when the SC itself often does not use it. I suspect that the only reason why the SC has not officially dumped the Lemon Test is that the SC wants the test to be available in case the SC itself wants to use the test in the future.
The Kitzmiller v. Dover opinion notes that the defendants agreed to use the Lemon Test but opposed use of the Endorsement Test:
The parties are in agreement that an applicable test in the case sub judice to ascertain whether the challenged ID Policy is unconstitutional under the First Amendment is that of Lemon v. Kurtzman, 403 U.S. 602 (1971), (hereinafter "the Lemon test"). . . . Defendants maintain that this Court should not apply the endorsement test to the challenged ID Policy because the Supreme Court did not apply the test to the creationism statutes at issue in Epperson and Edwards. As Plaintiffs aptly state however, Epperson was decided in 1968, five years before Lemon, and accordingly nearly two decades before Justice O' Connor first began to articulate the endorsement test as a way to conceptualize Lemon.(pages 9-10)
It should have been the other way around -- the defendants should have agreed to the Endorsement Test and opposed the Lemon Test. Because of the fundies on the school board, the Lemon Test was the kiss of death for the defendants because of this test's consideration of religious motivations. IMO the defendants at least stood a chance under the Endorsement Test, which IMO when correctly interpreted prohibits consideration of religious motivations, as I noted. The Supreme Court's wishy-washiness towards the Lemon Test is certainly a strong argument against using it.
As long as the Lemon Test is available, school board members and legislators can help criticisms of evolution in public school curricula pass this test by quitting churches, stomping on bibles, etc. to demonstrate that they are not motivated by religion.
Related post: Aptly named "Lemon test" sucks