Plaintiff in Key Church-State Case for Schools Dies

By Mark Walsh — May 28, 2013 2 min read
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Alton T. Lemon, the lead plaintiff in a landmark U.S. Supreme Court case setting a key test for evaluating the constitutionality of government aid to religious schools, has died, according to published reports.

Lemon was an activist who helped challenge a 1968 Pennsylvania law that authorized state reimbursement of nonpublic schools, including religious schools, for “secular” services such as teachers’ salaries, textbooks, and other instructional materials.

He was 84 and suffered from Alzheimer’s disease, according to his obituary in The New York Times. He died May 4 in Jenkintown, Pa.

In its 1971 decision in Lemon v. Kurtzman, the high court struck down the Pennsylvania program, along with a similar Rhode Island program in a consolidated case, as resulting in an excessive entanglement between government and religion in violation of the First Amendment’s prohibition against government establishment of religion.

The entanglement stemmed from the state oversight necessary to ensure that only secular expenses of a religious school be reimbursed, such as a continuing need by government auditors to inspect the church school’s finances, Chief Justice Warren E. Burger said in the majority opinion of the 7-1 decision.

Lemon, a native of McDonough, Ga., who lived in the Philadelphia area, was a government worker who was active in the the NAACP and American Civil Liberties Union, according to the Times obituary. He was asked by civil rights groups to be a plaintiff in the challenge to Pennsylvania program.

As recounted in Burger’s opinion, Lemon asserted standing as a taxpayer and as a parent of a public school student to challenge the program. The program was initially funded by a tax on horse and harness racing, and Lemon alleged that he had purchased at least one ticket at a Pennsylvania race track and thus supported the specific program of aid to religious schools.

The Lemon decision’s more lasting impact stemmed from its establishment of a three-part test for evaluating government aid to religion, known ever since as the Lemon test. Under the test, courts weighing a program of government aid to religion must consider whether the program has a secular purpose, whether its primary purpose is to advance or inhibit religion, and whether it results in an excessive entanglement between government and religion.

The test has been much criticized by conservative law professors and many judges, including some members of the Supreme Court. In a 1993 concurrence in a church-state case, Justice Antonin Scalia used vivid language to accompany his view that the Lemon test had effectively been overruled by other church-state tests without the high court formally declaring so.

“Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again,” Scalia wrote in Lamb’s Chapel v. Center Moriches Union Free School District.

Justice Byron R. White, in his majority opinion in the 1993 case dealing with church access to school facilities for an evening film series on religious topics, responded to Scalia by saying that Lemon, “however frightening it might be to some, has not been overruled.”

Indeed, the Lemon test has survived to this day. In 2011, in a published dissent from the court’s refusal to take up a church-state case involving state involvement in highway religious memorials, Justice Clarence Thomas castigated the Lemon test and said the court’s establishment clause jurisprudence was “in shambles.”

A version of this news article first appeared in The School Law Blog.