The Supreme Court often uses the three-pronged Lemon test when evaluating whether a law or state action violates the First Amendment. The creation of religious cases tends to involve state aid to religion, such as aid to mosque schools, or the introduction of religious practices such as school prayer into civil service. The court measures the aid or program against the test phase.

The lemon test was introduced in Lemon v. Taken from Kurtzman
The Lemon test, which critics say is aptly named, takes its name from the Lemon v. Kurtzman (1971) decision. Limon represented an improvement in the test announced by the Supreme Court in Waltz v. Tax Commission (1970).

Writing for the majority in Walz, Chief Justice Warren E. Burger took the traditional purpose and effects test that the Court had used since Everson v. Board of Education (1947) and added excessive government entanglement to the test.

Under these guidelines, the Court will scrutinize aid offered to a religious organization to ensure that it serves a specific civic purpose. Courts will also determine whether the primary effect of the aid is to advance or inhibit religion. As to the third issue raised in the Walz case, the Court will examine whether the aid is too entangled with the government’s religion.

Burger tried to highlight “excessive government entanglement.”
In Kurtzman v. Burger, a unanimous Court again attempted to clear up some of the confusion about the government’s over-intrusive meaning of the test. To determine whether the program created an impermissible conflict between religion and government, the Court had to consider three factors. Courts will consider the nature and purpose of the beneficiary organization, the nature of the government assistance, and the relationship between the government and the religious organization. If the program fails any part of the test, it would be an unconstitutional violation of the provision establishing the aid.

The court expressed its concern over political divisions. According to Burger, the “politically divisive potential” of religious programs was the “fundamental evil” the First Amendment was intended to prevent.

In applying the test to the various programs under review, the Court generally accepts the first step and refrains from second-guessing the legislature’s intent. Only a small number of applications fail the “effectiveness” part of the test. The test’s main point is often excessive government entanglement.

Test usage is inconsistent
If Burger thought this was an experiment in relative position, he would be disappointed. For nearly two decades, courts have generally applied the test to erect a wall of separation between church and state.

Ultimately, too much entanglement is in the eye of the beholder. Pro-segregation judges may use the test to determine whether the Establishment Clause has been violated, while pro-accommodation judges may use the same test to uphold a practice or program. In fact, critics of the Court’s legislation have argued that the petition was too inconsistent to judge the lawmakers who approve such programs and the lower courts that evaluate them.

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