Is it Time to Overrule the Lemon Test?


The Supreme Court has expressed concern over the Lemon test in determining whether the government has seemingly endorsed religion.  Most recently, concern arose in Kennedy v. Bremerton School District where a football coach at a public high school was put on administrative leave for praying silently on the 50-yard line after every game.  During oral arguments, Justice Gorsuch expressed that “tolerating private religious speech is not endorsement” and that the Lemon test has caused tremendous confusion amongst schools.  

The Lemon test is a three-pronged test that evaluates whether law or governmental activity violates the First Amendment establishment clause.  The Lemon test ensures that there is not excessive governmental entanglement with religion.  The three factors the courts look to are (1) the character and purpose of the institution that benefited, (2) the nature of the aid the state was providing, and (3) the resulting relationship between the government and religious institution.  If the program failed any part of the test, it would render the governmental aid unconstitutional. 

Despite consistent confusion posed by the Lemon test, it is unclear if the Court is ready to overrule the decision in Lemon v. Kurtzman where the rule was created.
 

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Annabel Stanley is an Associate at Faruqi & Faruqi’s New York office. Annabel works with attorneys specializing in employment law and wage and hour class action litigation.

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