Justice’s Death Leaves Legacy of Church-state Legal Decisions

When former Supreme Court Chief Justice Warren Burger died, he left behind a legacy of decisions on religious freedoms and a lightning rod for testing breaches of the wall separating church and state.

Burger, a Nixon appointed who retired in 1986 after 17 years as chief justice, died Sunday at the age of 87.

Although later in his career Burger seemed to move away from the separationist point of view he showed early in, legal observers say he left the court important guidelines to determine when the Establishment Clause, the constitutional provision for church-state separation, has been violated.

Known as the Lemon Test, the three-part manual on Establishment Clause violations rose out of a 1971 case, Lemon vs. Kurtzman, which combined two prior cases in one landmark decision.

Those cases involved a Pennsylvania lawsuit against a statute permitting the state to pay parochial schools to teach secular subjects, such as math or science, and a Rhode Island case, which challenged a law allowing the state to pay part of the salary of parochial school teachers who taught secular subjects in schools serving poor students.

In his majority opinion, Justice Burger wrote that in order to be constitutional, a practice must have a secular purpose, cannot advance or inhibit religion and cannot foster excessive government entanglement.

In the decision, the court found that both state measures violated the Establishment Clause, due to excessive government entanglement.

Although the future of the Lemon Test is uncertain under an increasingly conservative Supreme Court, it has served as a useful guidepost in a number of cases in the nearly 25 years since its inception, both in the Supreme Court and in the lower courts, legal scholars say.

Even those legal experts who say the Lemon Test was merely a codification of already existing principles acknowledge that the ruling has had an impact on important religious cases.

In one such case, Wallace vs. Jaffree, the Supreme Court in 1981 used the Lemon Test to strike down and Alabama state moment-of-silence ordinance. The court ruled that the law’s sole purpose was to promote religion, which violated the test’s second part.

The court also used the Lemon Test to abolish a program in which public school teachers taught academic subjects in parochial schools in Aguilar vs. Felton. In that 1985 decision, the court said the program constituted an excessive entanglement between government and religion.

The test has also been used to uphold some practices in which no violations occur.

This was true in the 1983 case, Mueller vs. Allen, when the court used the test to show that a Minnesota law providing state income tax deductions for tuition, textbooks and transportation for parents of children at any school, including parochial schools, was constitutional. The court said the deduction did not violate any of the test’s standards, and was allowed to remain.

In the broader sense of church-state separation and the law, legal scholars say the Lemon Test clarified the court’s stand on the issue, giving both critics and supporters of boundaries between church and state a tool with which to fight their battles.

“At the time, it was a striking reaffirmation of the principles of separation,” said Marc Stern, the American Jewish Congress’s co-director of legal affairs.

Many in the Jewish community, including AJCongress, have been strong advocates of a strict separation of church and state.

When the Lemon case came about, the court had recently struck down school prayer, and was just beginning to debate aid to parochial schools, Stern said.

“Burger arrived at an opportune moment to set the standard,” he said.

“The three-part test sort of became the Cliff Notes of the Establishment Clause, and symbolized in the public mind that degree of separation,” he added.

Clear rules about what violated the Establishment Clause helped those who favored a high wall between church and state win court cases, Stern said.

“There’s no question after Lemon we were winning many cases and that continued for about 10 or 11 years,” Stern said.

At the same time, the Lemon Test became a vehicle through which political opponents of church-state separation could criticize the court, he said.

Although Burger was inconsistent in his decisions, sometimes ruling against his own test, he still left behind a strong legacy on church and state, said Richard Foltin, a lawyer and legislative director for the American Jewish Committee.

“I think the good thing Burger did was to show that one can be moderate and conservative and still take the need for separation of church and state seriously, and that one should see commitment to the Establishment Clause” not as a position taken by either liberals or conservatives, but true to what the First Amendment is all about, said Foltin, who provided summaries of the court decisions.

But John Harrison, a University of Virginia law professor who specializes in constitutional law, cautioned against overestimating the effect the test has had on religious cases.

The test moved the Supreme Court of its time toward more separationist views, he said, but it did not make as big a difference as people might think.

“It set the terms for the argument in the court more than it really directed the way a case came out,” Harrison said.

Several observers noted that in deciding recent cases, the Supreme Court has relied more on precedents set in other cases than on Burger’s test.

In addition, as the court has become more conservative, it has begun moving away from a strict separationist point of view, Harrison said.

Some current justices, including Antonin Scalia and Sandra Day O’Connor, have questioned the Lemon Test’s validity, Harrison said.

They want to either do away with the test altogether or change it, he said.

Still, whatever the Lemon Test’s fate, it did serve to “erect a fairly high wall of separation of church and state,” said Herman Schwartz, a law professor at American University.

“It’s been useful,” he said of the test.