Ginsburg Endorses Court Doctrine on Separation of Church and State
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Ginsburg Endorses Court Doctrine on Separation of Church and State

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Supreme Court nominee Ruth Bader Ginsburg indicated during her confirmation hearings this week that she favors maintaining, at least for the time being, a legal doctrine dealing with church-state separation that is supported by many Jewish groups.

The doctrine, known as the “Lemon test,” is named after a 1971 high court case called Lemon vs. Kurtzman and has been under siege by some current justices.

Many Jewish groups, which expressed concern earlier this year that the court would eventually overturn Lemon, breathed a sigh of relief that the doctrine survived the recent court term.

The Lemon test states that a law must meet three criteria: its principal purpose must be secular; its effect must neither enhance nor inhibit religion; and it cannot involve excessive government entanglement with religion.

In questioning before the Senate Judiciary Committee both Tuesday and Wednesday, Ginsburg said she would maintain the Lemon test unless there were a reason to replace it.

“What is the alternative? It’s very easy to tear down, to say that — to deconstruct. It’s not so easy to construct,” Ginsburg said Tuesday evening in response to questioning from Sen. Howard Metzenbaum (D-Ohio).

“So I, as a general matter, would never tear down unless I’m sure that I have a better building to replace what’s being torn down,” she added.

On Wednesday morning, during questioning by Sen. Patrick Leahy (D-Vt.), Ginsburg acknowledged that she had little experience in judging this type of church-state case, and that she had no “satisfactory alternative” to the Lemon test to offer.

Ginsburg said Wednesday afternoon that she would “devote very careful thought” to studying the “Establishment Clause” of the First Amendment barring government entanglement with religion.

“The United States is a country of many religions,” the nominee said. “We have a pluralistic society.”


Many Jewish groups back the Lemon test because it provides a strict standard for ensuring separation of church and state. But some Orthodox groups oppose it, contending that it has created a climate hostile to religion.

On another church-state issue, the free exercise of religion, Ginsburg was asked Wednesday about her 1984 dissent in the case of S. Simcha Goldman, a Jewish member of the armed forces who was barred from wearing a yarmulka while on duty.

Ginsburg, who currently sits on the U.S. Court of Appeals here in Washington, had wanted the full appeals court to hear Goldman’s case, but the majority of the court ruled the other way.

Her dissent did not necessarily indicate that she would have supported Goldman had the court heard the case.

In response to questioning Wednesday morning from Sen. Leahy and later from the committee chairman, Sen. Joseph Biden (D-Del.), Ginsburg was not forthcoming in explaining exactly what she thought about the issue.

But in noting Wednesday morning that Congress had eventually passed legislation “that said that the Air Force can accommodate to the yarmulka,” she added that “this body was implementing the Free-Exercise Clause in an entirely proper way, in my judgment.”

Leahy also asked Ginsburg about another church-state case that had come before her court, in which a man who rejected Social Security numbers for religious reasons had a problem applying for a District of Columbia driver’s license because they use Social Security numbers.

Ginsburg and the majority of the court sent the case back to a lower court, arguing that there had to be a compelling justification to not accommodate someone’s religious beliefs.

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