Lemon v. Kurtzman (1972) is an interesting case to look back on. On one hand, it is so often cited as the basis of all of our litigation on religious freedom today. Supposedly, it created this perfect test still used by all courts to this day – the final consensus that we were all waiting for. It did not.

For one, the Lemon test is exceptionally vague. The test has three prongs. First, the primary purpose of the law must be secular. Second, the program must neither promote nor inhibit religion. Third, there must be no excessive entanglement between church and state. Thinking about this test, it seems incredibly easy to conjure ideas of laws that would simultaneously abide by every prong and violate all. Lynch v. Donnelly (1984), a case where the Court found that displaying nativity scenes on public property was Constitutional, comes to mind. In the case, the Court found the purpose to be secular as it informed the citizens about the history of Christmas, a secular holiday. This historical function meant it didn’t promote Christianity, just civic knowledge. And as the state was not messing around in how the church presented the Christmas story to their own people, it wasn’t excessive entanglement. It also seems incredibly compelling to argue that the Christmas story is inherently religious, even if the holiday is recognized by the state. Equally, it seems to promote religion on the basis of being a state-funded display teaching the people about that religious holiday and to entail excessive entanglement at the point it on some level endorses a specific telling of that Christmas story that is likely not shared by all Christians. 

But the test is not just vague but used inconsistently. Conservative judges and lawyers have moved to do away with the test, arguing that it is too separationist in its understanding of religious liberty. From the mid-1980s moving forward, more and more religious liberty cases failed to use the Lemon test at all in their reasoning. Some proposed edits to the test, like Justice O’Connor, who argued that the first prong of the test should be adjudicated on the level of an average citizen’s perception of the effect of the law, rather than the lawmakers’ intent. But today, while Lemon v. Kurtzman continues to be an official precedent, it is largely neglected by a judiciary that prefers a more accommodationist reading of the First Amendment.

While Lemon v. Kurtzman applies to government statutes, a stricter precedent applies to private discrimination. In Trans World Airlines (TWA) v. Hardison (1977) the Court found that Title VII, the Civil Rights Acts Prohibition on religious discrimination, does not require that a private company makes reasonable accommodations for religious workers if they create even minimal burden. Today, this is being challenged at the Supreme Court. Groff, the plaintiff in Groff v. DeJoy (2023), is arguing that he was discriminated against after feeling forced to quit his job due to USPS requiring him to work Sundays. If Groff wins his case, which is likely, this would overturn the TWA precedent, and require all businesses to take greater steps to accommodate religious people in the workplace.

Author: Millie Caughey