Date: Fri Nov 28 12:03:19 1997
To: Frank Grose
From: Rob Weinberg
Subject: What is "Promotion"
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Rob the Man's understanding of "promotion" in the context of the establishment clause derives from Rob the Lawyer's reading of the caselaw. There is something called the "Lemon" test, which came from a case called Lemon v. Kurtzman. It is a three part test to determine whether a challenged practice violates the establishment clause and goes as follows:
"First, the [practice] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, [it] must not foster 'an excessive government entanglement with religion.' " Lemon v. Kurtzman, supra, 403 U.S., at 612 613, 91 S.Ct., at 2111 (citations omitted).
That is a quote of a quote from Justice Brennan dissenting in a case called Lynch v. Donnelly. Despite that the quote is from Justice Brennan's dissent (for convenience) all involved in the debate agree that it describes what the Court held in Lemon, and all agree it is still employed today.
The Lemon test has had its detractors, both on the Court and from the "right." Sometimes in the decisions it is seen as a firm test to be rigidly employed. And sometimes it is seen as merely guideposts to measure practices by, a framework for analysis. Much of the current debate in the courts today involves either the left trying to reinforce the test or the right trying to persuade the Supreme Court to abandon it.
To put the test in context:
first, the practice, despite any original religious significance, must have a secular *purpose*. Sunday blue laws and the Thanksgiving holiday have been found by the courts to have secular purposes despite their religious origin, and have been upheld.
second, it must not have the *effect* of endorsing or promoting *any* religion. Laws compelling a non-sectarian prayer at the start of the school day would fail that prong of the test. Although I'm using the word "promoting" in this attempted definition of what is "promotion," the focus is on the word "effect." That takes the question of *intent* to promote out of the equation and examines the *consequences* that objectively flow from the practice. Does the challenged practice have the *effect* of advancing religion by the government?
and third, the practice must not foster an *excessive entanglement* with religion. Giving parents tax credits for sending their kids to private religious schools are often attacked on that ground. I think we're seeing some loosening up on this one by the courts, and I think, personally, that's a good thing. The political consequences for children whose parents can't afford to send their kids to religious schools may not be a good thing, but that is a political question. So you and I are probably in agreement on this one, and the courts are working on it. Laws prohibiting the teaching of evolution have been successfully challenged on the ground of "excessive entanglement."
To recap, "purpose," "effect" or "excessive entanglement" are the three prongs. Fail any one prong, you fail the establishment clause test in Lemon.
Whether Rob the man or the lawyer, most of my thinking on the subject, including what to do with the analysis of the historical antecedents of religion in government, comes from Justice O'Connor's concurrence and Justice Brennan's dissent in Lynch v. Donnelly. Both survey the law and the Supreme Court's reading of history well. Both are very readable to the lay reader. You may be interested to note that the majority opinion in the case upheld a city display of a creche nativity scene during the Christmas holiday.
With them "durned liberals Brennan and Marshall" gone from the Court today, what you are now seeing in the courts is an effort by the right to undermine the Lemon test. I make no judgment, that is their prerogative, and is the proper way to challenge "court made" law, by inviting the court to reconsider its precedent. The Supreme Court cases that have followed Lemon and Lynch often entertain the idea of abandoning the test, but have failed so far to find a better alternative, and it remains the analysis that overshadows the cases today.
Print out Lynch and jump right to Justice O'Connor's concurrence and Justice Brennan's dissent. There you will find my understanding of "promotion." Then go back and read the majority opinion if you wish.
You will also see some discussion of the term "accommodation" that you may want to keep an eye out for. What you see in Lynch is that at that time, the Court was not prepared or confronted with facts to deal with that part of the issue. We are seeing that today in the arguments of Judge Moore as well as the arguments that are being presented in Judge DeMent's school prayer case. So, as those cases go up through the courts, you will see more analysis of how to reconcile "accommodation" in our religious society with the Lemon test rules against "promotion." You are witness to an evolutionary process here.
Although it's not necessary for our immediate discussion to read anything other than Lynch, when you think you've got a handle on Lynch and are ready for more, my recommendation would be to read ALLEGHENY COUNTY v. GREATER PITTSBURGH ACLU and LEE v. WEISMAN next. They're more recent, and I think go into the modern debate a little further on the continued efficacy of the Lemon test. The first one had to do, I think, with another nativity scene, and Weisman had to do with inviting a minister to commencement exercises.
As I've said, the Lemon test has its detractors, on as well as off the Court. My prediction is that as problematic as it has been to use in recent cases, the Court may try to refine it, but will not find a better test anytime in the near future.
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