Lemon's Entanglement Prong

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Under Lemon's “entanglement” prong, a law could create impermissible entanglement either through excessive government surveillance or through its divisive political potential.1 The Court therefore struck down laws that would require “comprehensive, discriminating, and continuing” government supervision and control of religion,2 or that impermissibly politicized religion.3 However, contrary to the language in Lemon itself, the Supreme Court did not always treat the entanglement prong of the Lemon test as a distinct inquiry.4 Notably, the Supreme Court treated entanglement as an element of Lemon's effect prong in 1997’s Agostini v. Felton.5

To violate the Establishment Clause under Lemon's third prong, an entanglement had to be “excessive,” as some “[i]nteraction between church and state is inevitable.” 6 The Court has sometimes noted that laws creating permissible accommodations have created “a more complete separation” between church and state, the opposite of a greater entanglement.7 Further, the Court has concluded that relatively minor oversight or administrative burdens did not qualify as impermissible entanglement.8 For example, the Court said applying the recordkeeping requirements of the Fair Labor Standards Act to religious organizations did not create an excessive entanglement, emphasizing that the requirements applied only to certain commercial activities, with “no impact on petitioners’ own evangelical activities or on individuals engaged in volunteer work for other religious organizations.” 9 In another case, the Court concluded minor “custodial oversight” of religious groups, where the law prohibited greater government control or sponsorship of the groups’ activities, did not violate the entanglement prong.10

By contrast, the Supreme Court said in Larkin v. Grendel’s Den that a statute giving churches the power to veto liquor licenses for nearby businesses “enmeshe[d] churches in the exercise of substantial governmental powers contrary to our consistent interpretation of the Establishment Clause.” 11 According to the Court, “few entanglements could be more offensive” than delegating “discretionary governmental powers” to religious groups.12

As discussed in more detail elsewhere,13 the Supreme Court held in a few decisions in the 1970s and 1980s that providing certain secular materials or services to religious schools violated the effect and entanglement prongs of Lemon.14 Notably, in Aguilar v. Felton, the Supreme Court said that a law allowing federal funds to be used to pay public employees teaching in nonpublic schools was unconstitutional “because the supervisory system established by the [implementing city would] inevitably result[ ] in the excessive entanglement of church and state.” 15 The Court relied on the fact that the aid was “provided in a pervasively sectarian environment,” and assumed that “because assistance is provided in the form of teachers, ongoing inspection is required to ensure the absence of a religious message.” 16 However, these rulings were subsequently overruled.17 The Supreme Court said it would “no longer presume that public employees will inculcate religion simply because they happen to be in a sectarian environment,” and accordingly, would “also discard the assumption that pervasive monitoring of [the funded] teachers is required.” 18

Lemon relied in part on the “divisive political potential” of the school funding programs at issue in that case to find that there was an unconstitutional excessive entanglement.19 However, the Court later suggested that “political divisiveness alone” is not enough “to invalidate otherwise permissible conduct,” 20 and further, that divisiveness may only be relevant in cases involving “direct subsid[ies]” to religious entities.21 Notwithstanding these statements, in Larson v. Valente, decided in 1982, the Supreme Court held that a state statute imposing “registration and reporting requirements upon only those religious organizations that solicit more than fifty per cent of their funds from nonmembers” violated Lemon's entanglement prong because of its political divisiveness.22 The opinion first ruled that the law created a denominational preference, triggering strict scrutiny.23 But after concluding that the law failed strict scrutiny, the Court also went on to apply Lemon's three-part test.24 The Court said that “the ‘risk of politicizing religion’” was “obvious” in a law that selectively imposed burdens on “particular denominations.” 25

1: See Marsh v. Chambers, 463 U.S. 783, 798–99 (1983) (Brennan, J., dissenting) (describing Lemon's entanglement prong as involving these two aspects). For a discussion of Lemon's abandonment and the relevance of cases in this section, see Amdt1.3.6.1 Lemon’s Purpose Prong and Amdt1.3.6.6 Endorsement Variation on Lemon.
2: Lemon v. Kurtzman, 403 U.S. 602, 619 (1971). See also Walz v. Tax Comm’n, 397 U.S. 664, 675 (1970) (discussing unconstitutional government “surveillance” ).
3: Lemon, 403 U.S. at 622 (pointing to “the divisive political potential of” the challenged programs and noting that “political division along religious lines was one of the principal evils against which the First Amendment was intended to protect” ); Larson v. Valente, 456 U.S. 228, 253–54 (1982) (ruling that the challenged state laws impermissibly politicized religion, selectively imposing “burdens and advantages upon particular denominations” ).
4: See, e.g., Agostini v. Felton, 521 U.S. 203, 233 (1997) ( “[I]t is simplest to recognize why entanglement is significant and treat it—as we did in Walz—as an aspect of the inquiry into a statute’s effect.” ); Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970) ( “We must . . . be sure that the end result—the effect—is not an excessive government entanglement with religion.” ).
5: Agostini, 521 U.S. at 234.
6: Id. at 233.
7: Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 339 (1987) (rejecting an Establishment Clause challenge to a religious exemption from a federal nondiscrimination law); see also Bd. of Educ. v. Mergens, 496 U.S. 226, 253 (1990) (noting that prohibiting religious speech in school facilities “might well create greater entanglement problems in the form of invasive monitoring to prevent religious speech at meetings at which such speech might occur” ).
8: See Mergens, 496 U.S. at 253; Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 305 (1985); Lynch v. Donnelly, 465 U.S. 668, 684 (1984).
9: Tony & Susan Alamo Found., 471 U.S. at 305.
10: Mergens, 496 U.S. at 253.
11: Larkin v. Grendel’s Den, 459 U.S. 116, 126 (1982).
12: Id. at 127.
13: See Amdt1.3.6.1 Lemon’s Purpose Prong.
14: Wolman v. Walter, 433 U.S. 229, 258 (1977); Meek v. Pittenger, 421 U.S. 349, 372 (1975).
15: Aguilar v. Felton, 473 U.S. 402, 409 (1985).
16: Id. at 412.
17: See Mitchell v. Helms, 530 U.S. 793, 835 (2000) (plurality opinion) (partially overruling Meek and Wolman); id. at 837 (O’Connor, J., concurring in the judgment) (same); Agostini v. Felton, 521 U.S. 203, 235 (1997) (overruling Aguilar).
18: Agostini, 521 U.S. at 234.
19: Lemon v. Kurtzman, 403 U.S. 602, 621 (1971).
20: Agostini, 521 U.S. at 233–34; Lynch v. Donnelly, 465 U.S. 668, 684 (1984). Cf. Lee v. Weisman, 505 U.S. 577, 587–88 (1992) (stating that although divisiveness will not “necessarily invalidate[ ]” attempts to accommodate religion, the “potential for divisiveness” was “of particular relevance” in a case centering “around an overt religious exercise in a secondary school environment where . . . subtle coercive pressures exist and where the student had no real alternative which would have allowed her to avoid the fact or appearance of participation” ).
21: Lynch, 465 U.S. at 684.
22: Larson v. Valente, 456 U.S. 228, 230, 253 (1982).
23: Id. at 246–47.
24: Id. at 251–52.
25: Id. at 254 (quoting Walz v. Tax Comm’n, 397 U.S. 664, 695 (1970) (opinion of Harlan, J.)).