Of myth and reality : constitutional doctrine and the establishment clause

Courts formulate doctrines to promote judicial consistency and foster stability. In Lemon V. Kurtzman (403 U.S. 602 [1971]), the Supreme Court articulated a three-pronged test to guide Establishment Clause jurisprudence. Since 1971, the Court generally has responded to the church-state question by applying this so-called Lemon doctrine (or Lemon test). First, the questioned government action must have a "secular legislative purpose." Second, the "primary effect" of the action must not be to advance or inhibit religion. Third, the action must not lead to an "excessive entanglement" between government and religion. Through an analysis of Supreme Court decisions, this dissertation examines the evolution, alteration, and arguable devolution of the Lemon doctrine to determine whether it has been applied consistently over time, to judge whether it has any predictive value, to identify some of the factors that have led to its modification, to explore the future of the Lemon doctrine, and to anticipate some general trends in Establishment Clause jurisprudence. This research concludes that the Lemon doctrine has not been interpreted consistently by the Court. Therefore, it has little predictive value. In recent years, the justices have retreated from a mechanical application of the doctrine, thus leading many scholars to conclude that the doctrine teeters on the brink of extinction. However, upon closer examination, it is not clear that the justices will soon part with the Lemon doctrine. The animating principles of the doctrine-government's noninvolvement and neutrality in matters of religion—do not appear to be nearing repudiation. Furthermore, the doctrine provides the justices with the necessary discretion to deal with the sensitive matters arising from the Establishment Clause. Barring some personnel changes in the Court or major ideological shifts among the present justices, it is wholly premature to forecast the impending demise of the Lemon doctrine.