The Lemon Test and the Establishment Clause: A Proposal for Modification
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AbstractThe separation of church and state, as contemplated by the First Amendment, has given rise to a troubling line of cases interpreting the Establishment Clause. In 1971, the United States Supreme Court fashioned a test for deciding these cases in Lemon v. Kurtzman. Previous Establishment Clause holdings were synthesized into a three-pronged analysis. "First, the statute must have a secular legislative purpose; second, its principle or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster 'an excessive government entanglement with religion.'" An act which fails to satisfy any of the three prongs violates the Establishment Clause. In practical application, this test has been the source of a great deal of confusion, yielding what one writer has termed "a conceptual disaster area." This comment will show that the first or "purpose" prong is the source of much of the confusion. Accordingly, the purpose prong should be abandoned, as its limited utility is greatly outweighed by the problems it creates.