It is a pleasure to have the opportunity to study the work of Francis Beckwith, whose work I have long admired. We often disagree, and I disagree with a lot of what he wrote here, but I’m glad we’re having this conversation.
He writes that “if rigorously applied, the lemon test institutionalizes both a state preference for secularism and hostility towards religion”. However, he also writes that the conditions of the test “seem endlessly pliable”.
These claims are contradicting itself. The second is the more convincing. The test of Lemon v. Kurtzman cannot be applied rigorously because his terms are too vague. During the period of its dominance, the court got some things right and others wrong. The test had nothing to do with it. It’s so squishy that it couldn’t have any effect unless it is supplemented with unspoken premises that give concrete meaning to the generalities of the test. It was these premises (which have since been abandoned) and not the test formulated by the Court of Justice that produced the concrete result in the Lemon judgment.
What made lemon sour?
To stand up to a constitutional challenge, Lemon decreed: “First, the law must have a secular legislative purpose; second, its main or main effect must neither promote nor inhibit religion, … after all, the law must not promote ‘excessive involvement of the state in religion’. “
The first prong is badly injured, but injuries have occurred. If, as the authors thought, state manipulation tends to corrupt religion, then it obviously follows that the state cannot dictate religious truth, which non-secular laws do. The third aspect reflects the reasonable demand that religious institutions operate free of state control – an idea that is reflected in the recent exceptional cases of ministers.
But the second prong is the one that does most of the work, and it is incoherent without specifying the baseline by which to judge advancement or inhibition of religion. Some aspects of the baseline are undisputed. The classic example is police and fire protection for churches. Such protection will certainly benefit the churches and may even benefit core religious activities, for example when granted to religious articles that serve only religious purposes. Other donations, such as financing specifically aimed at religious activities, would violate the clause. The Tribunal has never explained which benefits are harmless and which improperly promote religion, or how courts should determine what is what. (Recently the court created another fundamental problem when it declared that laws cannot be applied to religious objectors as long as the state “treats some comparable secular activity more favorably”, thus inviting extravagant indemnity claims.)
Lemon himself delivered a very clear result: A certain amount of school help was forbidden. She did this by adding to her test the unsubstantiated assumption that even if the teachers’ salaries were increased for teaching secular subjects, the state could not avoid a breach of the establishment clause if it did not closely monitor the schools in order to ensure that no taint of religion entered their classrooms. This would lead to excessive entanglement and the aid was blocked.
During the period when lemon was nominally the predominant law, America was unusually successful in dealing with religious diversity – more so than many other generally well-functioning democracies like France, Germany, and Italy.
The key premise here is that if the state allocates funds for secular purposes, the money must be traced to avoid religious uses. If that is true, the state would also have to intensively micromanage every recipient of aid. This totalitarian implication was only drawn in relation to schools. Ira Lupu and Robert Tuttle are likely right that strict separatism in this context was a prophylactic rule aimed at preventing clandestine, targeted government support for the religion. In retrospect, this type of separationism went far too far and has few defenders today. But the problem wasn’t the three-step test, which was too vague to dictate that result. The reformulation by Rehnquist in Zelman v. Simmons-Harris that school aid is reasonably neutral when guided by free choice does not contradict the terms of the Lemon Test, although it does give up the Lemon result. Beckwith writes that in Zelman, lemon “does not play an essential role in the judgment of the court”. He’s right. But then you can’t blame Lemon for what came before.
The Value of America’s Religious Neutrality
The fundamental question is whether American religious freedom law is worth preserving. I have argued that US religious neutrality is coherent and attractive. During the period when lemon was nominally the predominant law, America was unusually successful in dealing with religious diversity – more so than many other generally well-functioning democracies like France, Germany, and Italy. Even if American religious freedom law were completely incoherent, it could still offer a reasonable approach to this eternal human problem.
However, the law has a deep logic that its critics failed to understand. The Doctrine of the First Amendment treats religion as a good thing. However, it insists – and here it separates itself from the religious traditionalists – that the goodness of religion is understood on such a high level of abstraction that the state does not take a position on a lively religious dispute. It says that the best way to appreciate the value of religion is to prohibit the state from attempting to answer religious questions.
America’s religious neutrality has become more hazy over time as the US has increased religious diversity, so the state today (with the exception of some grandfather practices) may not even affirm the existence of God. This kind of neutrality is not the kind of neutrality to all ideas of good that many liberal political theorists have advocated, but it is the best answer to the vast array of religious beliefs in modern America. It is true to the belief of the leading creators of the First Amendment that government support can corrupt religion.
Beckwith fears that Lemon is demanding that the state “completely remove from public space any symbol, word, or memorial that recognizes the religious heritage and beliefs of the nation’s citizens.” Lemon never had this effect, not even at the height of its influence. I mentioned grandfather practices. It has been clear for some time that the Tribunal treats long-established manifestations of ceremonial deism with more reverence than new ones, which are more obvious attempts by the state to intervene in living religious controversy.
Beckwith is clearly dissatisfied with the secularizing effect of this aspect of the lemon test. I don’t see why. I am not religious, but I view established religions with great respect. This “recognition” is a poisoned gift. Why don’t religious Christians get sick like me from the modern Christmas display, paid for with tax dollars backed by the influence of the local merchants’ association, reminding us that Jesus suffered and died on the cross so we can enjoy great Christmas shopping? ?