Alton Lemon, First Amendment pioneer, dies

I’m a bit late on this, but according to the New York Times, Alton Lemon died May 4 at age 84. Here’s a short precis of his life:

Alton Toussaint Lemon was born on Oct. 19, 1928, in McDonough, Ga., where his father owned a tailor shop. He received a degree in mathematics from Morehouse College in Atlanta in 1950.

In a 1992 interview with The Philadelphia Tribune, Mr. Lemon recalled playing basketball at Morehouse with the Rev. Dr. Martin Luther King Jr. “Before I married my wife, Martin used to say he would marry us for free someday,” Mr. Lemon said.

After service in the Army, Mr. Lemon settled in Philadelphia, earned a master’s degree in social work from the University of Pennsylvania, worked in a series of government jobs and was active in the N.A.A.C.P. and the American Civil Liberties Union. He was the first African-American president of the Ethical Humanist Society of Philadelphia, said Hugh Taft-Morales, the society’s current leader.

Nice credentials!  But what Lemon is most famous for is as the plaintiff in a famous court case involving the separation of church and state, which gave rise to the so-called “Lemon Test” still used by judges in adjucating freedom-of-religion cases (see the Supreme court decision below).

Mr. Lemon’s lawsuit challenged a 1968 Pennsylvania law that reimbursed religious schools for some expenses, including teachers’ salaries and textbooks, so long as they related to instruction on secular subjects also taught in the public schools.

Chief Justice Warren E. Burger, writing for the court in Lemon v. Kurtzman, said the law violated the First Amendment’s prohibition of government establishment of religion.

The ruling set out what came to be known as the Lemon test, 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 been criticized for its opacity and its malleability, but it remains in widespread use. “It’s still the leading establishment-clause case in the sense that every lower-court judge has to slog through it before deciding a case,” said Douglas Laycock, a law professor at the University of Virginia.

Lemon was one of nine plaintiffs in the lawsuit—three private individuals and six organizations. His name was first on the filing, which ultimately led to the shorthand of “Lemon Test: for the decision.  The case worked its way up to the Supreme Court, where the use of government funds in religious schools (a wall now eroding with the odious voucher system) was affirmed by all nine justices (it was decided along with a similar case from Rhode Island). It has not been overturned by more recent Supreme Court decisions, despite the conservative and pro-religious stance of today’s Court.

Here’s an excerpt from Chief Justice Warren Burger’s decision in the Lemon v. Kurtzman case: I’ve put in bold the three prongs of the “Lemon Test”:

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion,Board of Education v. Allen, 392 U.S. 236, 243 (1968). finally the the statute must not foster “an excessive government entanglement with religion.” Walz, supra, at 674.

. . . Finally, nothing we have said can be construed to disparage the role of church-related elementary and secondary schools in our national life. Their contribution has been and is enormous. Nor do we ignore their economic plight in a period of rising costs and expanding need. Taxpayers generally have been spared vast sums by the maintenance of these educational institutions by religious organizations, largely by the gifts of faithful adherents.

The merit and benefits of these schools, however, are not the issue before us in these cases. The sole question is whether state aid to these schools can be squared with the dictates of the Religion Clauses. Under our system, the choice has been made that government is to be entirely excluded from the area of religious instruction, and churches excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that, while some involvement and entanglement are inevitable, lines must be drawn.

Ah—the Burger court! Look at those names on the decision: Burger, Black, Harlan, Douglas, Stewart, Marshall, Blackmun, Brennan, and White.  Now those were halcyon days for progressives!

The Lemon test has figured important in legal defenses of evolution in the U.S.  In 1980, for instance, Judge William Overton’s decision in McLean v. Arkansas Board of Education, a case in which he rejected an Arkansas law mandating the teaching of “creation science” along with evolution in the public schools. Here’s Overton’s citation:

Most recently, the Supreme court has held that the clause prohibits a state from requiring the posting of the Ten Commandments in public school classrooms for the same reasons that officially imposed daily Bible reading is prohibited. Stone v. Graham, 449 U.S. 39 (1980). The opinion in Stone relies on the most recent formulation of the Establishment Clause test, that of Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971):

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion …; finally, the statute must not foster “an excessive government entanglement with religion.” [ Stone v. Graham, 449 U.S. at 40.]It is under this three part test that the evidence in this case must be judged. Failure on any of these grounds is fatal to the enactment.

And let me add my favorite part of Overton’s eloquent decision, which is in the closing:

The application and content of First Amendment principles are not determined by public opinion polls or by a majority vote. Whether the proponents of Act 590 constitute the majority or the minority is quite irrelevant under a constitutional system of government. No group, no matter how large or small, may use the organs of government, of which the public schools are the most conspicuous and influential, to foist its religious beliefs on others.

Of course, some readers and prominent bloggers think that at public universities it is perfectly all right for teachers to foist their religious beliefs on others.

Finally Judge John E. Jones III relied heavily on the Lemon test in his decision in the Kitzmiller et al  v. Dover Area School District et al. when striking down the teaching of Intelligent Design in a Pennsylvania High School in 2005. From Jones’s decision:

Although we have found that Defendants’ conduct conveys a strong message of endorsement of the Board members’ par ticular religious view, pursuant to the endorsement test, the better practice in this Circuit is for this Court to also evaluate the challenged conduct separately under the Lemon test.18 See Child Evangelism, 386 F.3d at 530-35; Modrovich, 385 F.3d at 406; Freethought, 334 F.3d at 261.

. . . The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the Board’s ID Policy violates the Establishment Clause. In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents.

Public universities are, of course, “organs of government,” so there’s nothing there to exempt universities from the ruling. Wouldn’t it be interesting to see if the First Amendment applies to state-supported colleges?


Alton Lemon


  1. pacopicopiedra
    Posted May 29, 2013 at 6:25 am | Permalink

    I guess if PZ wrote the McLean decision it would have said, “No group, no matter how large or small, may use the organs of government, of which the public schools are the most conspicuous and influential, to foist its religious beliefs on others, except professors at state universities, who may do whatever they want, because academic freedom trumps the constitution.”

  2. Diana MacPherson
    Posted May 29, 2013 at 6:46 am | Permalink

    Ah I finally understand what was meant by the Lemon Test. I wish Canada had explicit stuff like this. We have been fighting the use of tax dollars to finance Catholic separate schools here for years. Interestingly, because they take public dollars though, you can attend such a school and ask to be exempted from religious instruction. Nor are they supposed to exclude non Catholic teachers though they find a way to do so, namely asking for a letter from your priest as a reference.

  3. Posted May 29, 2013 at 7:01 am | Permalink

    Really informative post. I will now be able to reference the Lemon Test when necessary. Thanks!

  4. abandonwoo
    Posted May 29, 2013 at 7:19 am | Permalink


  5. Leigh
    Posted May 29, 2013 at 7:55 am | Permalink

    “Wouldn’t it be interesting to see if the First Amendment applies to state-supported colleges?”

    The decision from the Ohio Supreme Court concerning John Freshwater should be out soon.
    Maybe the question we should ask is: will courts today uphold any restrictions on academic freedom? People were uneasy after the oral arguments; the court seemed open to the finding that Freshwater’s academic freedom rights had been violated, or at least that he hadn’t had a sufficient hearing as to these rights. Mr. Freshwater taught at the middle-school level!

  6. Diana MacPherson
    Posted May 29, 2013 at 8:00 am | Permalink

    Oops sub

  7. chascpeterson
    Posted May 29, 2013 at 8:55 am | Permalink

    Of course, some readers and prominent bloggers think that at public universities it is perfectly all right for teachers to foist their religious beliefs on others.

    Myers has never said this. Assuming I am one of the readers referred to, I never said this either and I certainly don’t think it.
    It’s disingenuous to stoop to silly strwmen when (I presume) you know what was actually being argued.

    • Posted May 29, 2013 at 9:08 am | Permalink

      I was not being insincere, so please apologize for using the word “disingenuous”. And yes, if somebody wants to foist religion on their students, and the university doesn’t do anything about it, than there are people who think that that is perfectly all right in the name of “academic freedom.” They don’t like such classes being taught, but if the school doesn’t take action, then it is all right.

      And no, I wasn’t thinking of you.

  8. Dan McPeek
    Posted May 29, 2013 at 8:59 am | Permalink

    Mr. Lemon was a member of
    FFRF’s “honorary officers”, a title reserved for “freethinkers who have won
    Supreme Court cases in favor of separation of church and state.”

    He actually died on May 4th.

  9. marksolock
    Posted May 29, 2013 at 9:12 am | Permalink

    Reblogged this on Mark Solock Blog.

  10. Jeff D
    Posted May 29, 2013 at 1:27 pm | Permalink

    Thanks for a very good summary of the Lemon test and its continuing importance (unlike Justice Scalia, I think the test is still very useful, and I don’t want to see it discarded by the current Supreme Court or by a future Court).

    However, the Lemon test is difficult to apply to a case in which the government action or practice (“state action”) being challenged or evaluated is not (a) a statute or ordinance, (b) a specific governmental appropriation of funds, or (c) some other specific policy decision by a government body or agency.

    Finally, it is an oversimplification to say that public universities are “of course” “organs of government.” In many, perhaps most states, publicly-supported universities are separate 501(c)(3) nonprofit organizations and are not run or managed by elected governmental officials (constitutional officers). Course content is not designed or approved by persons on the state payroll. Persons on the state payroll do not hire, fire, promote, or discipline faculty or other university employees. Generally, the most that state governments do regarding the operation of public universities is to regulate or approve tuition increases and to determine the total amounts of state tax dollars that will be added as receipts to the university budgets.

    It takes more than the mere receipt of state tax money to turn the actions of public university officials into “state action” for purposes of the First and Fourteenth Amendments.

  11. johnnyrodgersmorris
    Posted May 29, 2013 at 5:30 pm | Permalink

    This was a fabulous post with so much detail. Thank you

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