The obituary of Alton T. Lemon appears in the New York Times today. Lemon, a black civil rights attorney who worked for the NAACP and the ACLU, was the lead lawyer on a lawsuit called Lemon v. Kurtzman, which led to the Supreme Court laying out an elaborate test to determine whether religious institutions could receive government subsidies. The case concerned a law in Pennsylvania that allowed religious schools to be reimbursed for teacher salaries and textbooks as long as they were used for secular purposes.
The challengers to the law maintained that this violated the First Amendment's establishment clause. The so-called Lemon Test, which came out of this, had three parts, "which requires courts to consider whether the challenged government practice has a secular purpose, whether its primary effect is to advance or inhibit religion, and whether it fosters excessive government entanglement with religion." The Lemon Test has served to confuse more than clarify jurisprudence regarding the First Amendment and religion.
In a 1993 concurring opinion, Justice Antonin Scalia wrote, “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, frightening the little children and school attorneys.” The Lemon Test is an excellent example of the chilling effect that some kinds of court decisions can have on our public life. Since then, schools administrators, teachers and attorneys have gone out of their way to make sure that religion has absolutely no place in public schools. From preventing children from reading Bible stories in elementary school classes to prohibiting prayer before athletic events, the Lemon Test has helped to make the so-called "wall of separation" one of the best known parts of the Constitution that's not in the Constitution.
Last week, the New York City Council voted by a margin of 38 to 11 to support the off-hours use of public school buildings by religious groups. The council has no power to do do anything about what is now a 17-year-long court controversy over whether this is a violation of the Establishment clause. But they asked the governor and the legislature to pass legislation supporting this practice.
In a statement typical of the attitude of our country's secular elites since the Lemon Test, the New York Times editorialized on this topic, "This misguided idea could turn public schools into houses of worship, essentially funded by city government." Really? Because bible study groups are allowed to meet on school grounds, the schools will effectively be publicly funded churches? When any other organization is allowed to meet on school grounds, does that happen?
As one city councilman told the Daily News, “(Churches) are not asking for free space, they’re asking for equal treatment just like every other nonprofit.” In the 30 years since the Lemon Test, many school districts have decided this is asking too much.