My New Article: This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose

June 29th, 2010

My most recent article, titled This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose, was just published in the George Mason University Civil Rights Law Journal. Here is the abstract:

Lemon is a curious fruit. The Lemon Test, derived from Lemon v. Kurtzman, is a three-pronged test to determine whether a government action violates the Establishment Clause of the First Amendment. This article will focus on the first prong of the Lemon Test, which queries whether a statute has a “secular purpose.” While many other articles have focused on the secular aspect of this prong, few have considered what exactly purpose means.

Before piercing the citric skin of the purpose prong of the Lemon test, I consider intentionalism and purposivism as jurisprudential schools of thought. What is the purpose behind a law? Does a law even have a purpose? Should purpose even matter in the Lemon test? I argue that the purpose prong forces Judges to rely on unreliable extrinsic sources, like legislative history.

By tracing the evolving nature of the courts’ reliance on legislative history, and applying a commonly used evidentiary principle this article advances a novel theory of legislative analysis and argues that older legislative history is more reliable than modern legislative history, and applies this dynamic to originalism and interpreting founding era documents.

Forging a novel research trail, this article chronicles every case in which the Supreme Court has struck down a statute for violating the purpose prong, and dissects the methodology the Court used to divine purpose. Based on this inquiry, I conclude that the Supreme Court has not taken a principled approach to interpreting these sources, and as a result, the purpose prong consistently yields inconsistent results, and allows savvy politicians to manipulate the record to avoid Establishment Clause challenges.

For these reasons, I propose two modest proposals to the purpose prong. First, I recommend that judges follow the Lemon test, and actually focus on the purpose of the statute in question, rather than some metaphysical and largely unknowable purpose of the legislature. Second, I seek to replace the “objective observer” standard announced in McCreary with an original public meaning analysis. These two suggestions will allow courts to engage in a more robust establishment clause jurisprudence, and further the purpose of the Lemon test in rooting out excessive entanglement of religion in government, and keeping the wall between church and state high, impregnable, and resolute. Much like the proverbial wolf who comes not in sheep’s clothing, but in wolf’s clothes, this lemon comes as a lemon.