The Lemon Test

Under the test first announced in Lemon v. Kurtzman, 403 U.S. 602 (1971), government action challenged under the Establishment Clause is constitutional if it satisfies a three prong test:

(1) if it has a secular legislative purpose (that is not a sham);

(2) a principal or primary effect that neither advances nor inhibits religion; and

(3) does not foster an excessive government entanglement with religion.

The Endorsement Test

For a government practice to be constitutional under the Establishment Clause, the government must demonstrate that neither its purpose nor its effect is to endorse religion.

Justice O’Connor created a gloss (a modification or enhancement) of the Lemon test. Under her approach, both the purpose and effect prongs of Lemon are examined through the lens of endorsement. Under this modification, the issue is whether the government has a purpose to endorse religion and whether the effect of the challenged practice is to endorse religion so as to “send a message to nonadherents that they are outsiders, not full members of the political community” and a “message to adherents that they are insiders, favored members of the political community.” Under Justice O’Connor’s version of the test, whether the effect is to endorse religion or not must be viewed from the vantage point of “a reasonable observer who evaluates whether a challenged governmental practice conveys a message of endorsement of religion.” In her view, “the reasonable observer is knowledgeable and aware of the history and context of the community and the situation in which the religious practice occurs.” Even though Justice O’Connor offered her endorsement test as a gloss on Lemon rather than as a separate test, the endorsement test is often used by lower courts as a separate test, an alternative to Lemon rather than just a gloss on the Lemon test. Typically such courts alternatively analyze the case before them under Lemon and the endorsement alternative.