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Lawyers - Legal Case Summary
Philadelphia, Pennsylvania
The Legal Case for and Against Teaching Intelligent Design
Norman Perlberger, Esquire*
III. FIRST AMENDMENT CASES
A. Broad Legal Criteria in Cases Touching Upon Religion
In Everson v. Board of Education, 330 U.S.1, 15. (1947), the Supreme Court, without dissent on this point, declared that the Establishment Clause forbids not only practices that "aid one religion" or "prefer one religion over another," but as well those that "aid all religions."
Recently, in reliance on published scholarly research and original sources, Court dissenters have recurred to the argument that what the religion clauses, principally the Establishment Clause, prevent is "preferential" governmental promotion of some religions, allowing general governmental promotion of all religion in general. See, e.g., Wallace v. Jaffree, 472 U.S. 38. 91 (1985) (then-Justice Rehnquist dissenting). More recently, dissenters, including now-Chief Justice Rehnquist, have appeared reconciled to a "constitutional tradition" in which governmental endorsement of religion is out of bounds, even if it is not correct as a matter of history. See Lee v. Weisman, 112 S. Ct. 2649, 2678, 2683-84 (1992) (Justice Scalia, joined by the Chief Justice and Justices White and Thomas, dissenting).
What has emerged in the law are three tests based on the same formulation. They were combined and restated in Chief Justice Burger's opinion for the Court in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) and are frequently referred to by reference to that case name. Chief Justice Burger wrote:
'The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." The third test is whether the governmental program results in "an excessive government entanglement with religion. The test is inescapably one of degree . . . [T]he questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement."
The Lemon test, therefore, consists of three prongs:
- The government’s action must not promote a particular religion or religious view;
- The government's action must not have the primary effect of either advancing or inhibiting religion; and
- The government’s action must not result in an "excessive entanglement" of the government and religion.
While the Lemon tests have been applied in a long line of cases for three decades, they have had greater application in prohibiting scrutiny of religions and religious practices by any comparative or value-based yardstick. In the area of education, the cases are all over the place.
