Lemon's Purpose Prong

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court’s 1971 decision in Lemon v. Kurtzman further entrenched the Establishment Clause’s focus on purpose and effect, and added a third element to the inquiry: entanglement.1 Under Lemon, to be considered constitutional, laws (1) “must have a secular legislative purpose;” (2) must have a “principal or primary effect . . . that neither advances nor inhibits religion” ; (3) and “must not foster ‘an excessive government entanglement with religion.’” 2 However, the Court said in 2022 that it had “long ago abandoned Lemon and its endorsement test offshoot.” 3 Nonetheless, it has not expressly overruled either Lemon or most other cases analyzing specific government actions by reference to purpose, effect, or entanglement—so the holdings of those cases remain binding in some courts.4 Furthermore, even as the Court has shifted its doctrinal framework, over the years, it has sometimes given weight to the same kinds of facts or reasoning over those different frameworks. For those reasons, this essay explains the Court’s Lemon jurisprudence in some detail.

The first Lemon factor focused on the purpose of a government policy.5 According to the Supreme Court: “When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality . . . .” 6 To determine a law’s purpose, courts looked to the “text, legislative history, and implementation of the statute.” 7 Accordingly, in ruling one government display of the Ten Commandments unconstitutional, the Supreme Court analyzed the history of the display and the county orders requiring the display, concluding that the original version had an “unmistakable” religious object, and that subsequent amendments to the display had failed to “cast off the objective so unmistakable in the earlier displays.” 8

It was relatively rare for the Supreme Court to find that a law failed Lemon's first factor, as it said a law would be unconstitutional “only when . . . there was no question that the statute or activity was motivated wholly by religious considerations.” 9 Thus, the presence of “legitimate secular purposes” could outweigh potential religious purposes.10 For example, the Court recognized supporting secular education11 and protecting speech12 as legitimate secular purposes. Further, to satisfy Lemon, the law’s purpose did not have to “be unrelated to religion.” 13 The Supreme Court has approved of laws that seek to accommodate religion, or to “alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.” 14 For example, in Wisconsin v. Yoder, the Court rejected an Establishment Clause challenge to a state decision exempting the Amish from compulsory public education, saying “[t]he purpose and effect of such an exemption are not to support, favor, advance, or assist the Amish, but to allow their centuries-old religious society . . . to survive free from the heavy impediment compliance with the Wisconsin compulsory-education law would impose.” 15

However, the Court cautioned that the asserted secular purpose must “be genuine, not a sham, and not merely secondary to a religious objective.” 16 The relevant inquiry was whether Congress “act[ed] with the intent of promoting a particular point of view in religious matters.” 17 Thus, in one case, the Court ruled unconstitutional a state law relating to the teaching of “creation science,” concluding that the law did not further its stated purpose of “academic freedom.” 18 Instead, the Court believed that the evidence demonstrated that the primary purpose of the law “was to restructure the science curriculum to conform with a particular religious viewpoint.” 19

Two cases involving government displays of religious symbols further illustrate this first factor of the Lemon inquiry. First, in Stone v. Graham, the Supreme Court held that a state law requiring public schools to post a copy of the Ten Commandments in classrooms was unconstitutional because it had “no secular legislative purpose.” 20 The Court said that the law’s “avowed” secular purpose—displaying the Ten Commandments as part of “the fundamental legal code” —could not “blind” it to the law’s “plainly religious” purpose.21 Noting that the Ten Commandments were not “integrated into the school curriculum” in any “appropriate” field of study, the Court concluded that the only possible effect of the posting could be “to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments,” an impermissible religious objective.22

By contrast, in Lynch v. Donnelly, the Court rejected an Establishment Clause challenge to a city’s Christmas display, which included a crèche along with a number of other decorations such as reindeer, candy-striped poles, and a Christmas tree.23 The Court said that under these circumstances, the city had stated “legitimate secular purposes” : “to celebrate the Holiday and to depict the origins of that Holiday.” 24 The religious nature of the crèche had to be viewed in the context of the whole display, and the Court concluded that there was “insufficient evidence to establish that the inclusion of the crèche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message.” 25

1: Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). See also Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970) (discussing entanglement as an aspect of the inquiry into a law’s effect). Lemon is discussed in more detail in Amdt1.3.5.1 Overview of Non-Financial Assistance to Religion.
2: Lemon, 403 U.S. at 612–13 (quoting Walz, 397 U.S. at 674).
3: Kennedy v. Bremerton Sch. Dist., No. 21-418, (U.S. June 27, 2022). See also Amdt1.3.6.6 Endorsement Variation on Lemon.
4: See, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (saying lower courts must follow Supreme Court precedent unless it has been specifically overruled by the Court, even if the precedent “appears to rest on reasons rejected in some other line of decisions” ). Some cases applying Lemon ‘s effect prong have been expressly overruled. See Amdt1.3.6.4 Lemon’s Effect Prong and Pervasively Sectarian Institutions.
5: Lemon, 403 U.S. at 612.
6: McCreary Cnty. v. ACLU, 545 U.S. 844, 860 (2005).
7: Id. at 862 (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)) (internal quotation marks omitted).
8: Id. at 869, 873. Cf. Kennedy, slip op. at 30 n.7 (concluding there was no “indelible taint of coercion by association” with prior prayer practices, and analyzing only the more recent prayer practices that it believed were the appropriate subject of the dispute).
9: Lynch v. Donnelly, 465 U.S. 668, 680 (1984) (emphasis added). See also, e.g., Wallace v. Jaffree, 472 U.S. 38, 56 (1985) (ruling unconstitutional a state law authorizing a minute of silence for meditation or voluntary prayer in public schools because the law “had no secular purpose” ).
10: See Lynch, 465 U.S. at 680–81.
11: See, e.g., Wolman v. Walter, 433 U.S. 229, 240 (1977), overruled in part by Mitchell v. Helms, 530 U.S. 793 (2000).
12: See, e.g., Bd. of Educ. v. Mergens, 496 U.S. 226, 248 (1990).
13: Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335 (1987).
14: Amos, 483 U.S. at 335; see also Amdt1.5 Relationship Between the Establishment and Free Exercise Clauses.
15: Wisconsin v. Yoder, 406 U.S. 205, 234 n.22 (1972).
16: McCreary Cnty. v. ACLU, 545 U.S. 844, 864 (2005).
17: Amos, 483 U.S. at 335.
18: Edwards v. Aguillard, 482 U.S. 578, 586 (1987).
19: Id. at 593.
20: Stone v. Graham, 449 U.S. 39, 41 (1980).
21: Id.
22: Id. at 42. See also McCreary Cnty. v. ACLU, 545 U.S. 844, 868 (2005) (holding a courthouse display of the Ten Commandments violated the Establishment Clause, noting “two obvious similarities to” the Stone display: “both set out a text of the Commandments as distinct from any traditionally symbolic representation, and each stood alone, not part of an arguably secular display” ).
23: Lynch v. Donnelly, 465 U.S. 668, 671 (1984).
24: Id. at 681.
25: Id. at 680.