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.
The second Lemon requirement was that a government policy must have a “principal or primary effect . . . that neither advances nor inhibits religion.” 1 In 1997, the Supreme Court said it used “three primary criteria . . . to evaluate whether government aid has the effect of advancing religion:” looking to whether laws “result in governmental indoctrination; define [their] recipients by reference to religion; or create an excessive entanglement.” 2
The Supreme Court sometimes discussed the effect inquiry in terms of “incidental” or “indirect” benefits, saying that a policy will not have an impermissible effect if it only incidentally aids religion.3 For example, the Court has characterized the textbook lending program in Board of Education v. Allen and the bus transportation program in Everson v. Board of Education as using “primarily secular means to accomplish a primarily secular end,” aiding religion only indirectly, rather than as the “primary effect.” 4 Similarly, the Court has said a law will not violate Lemon's effect prong “simply because it allows churches to advance religion.” 5 Instead, to violate the effect prong, “it must be fair to say that the government itself has advanced religion through its own activities and influence.” 6 Thus, one relevant concern is whether any aid to religion can be attributed to the government, rather than private parties.7
Generally, the Supreme Court has said that “government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit.” 8 Thus, following the pre-Lemon precedent of Allen,9 the Supreme Court rejected Establishment Clause challenges to school aid programs that were generally available to both religious and nonreligious recipients and supplied discrete secular services controlled by the state, including standardized testing services, speech and diagnostic health services, and off-site therapeutic and remedial services;10 providing a sign-language interpreter;11 and allowing religious groups to use school facilities.12 However, as discussed in more detail elsewhere, the fact that a program is neutral in the sense of even distribution of benefits has not always been dispositive to the inquiry—particularly if the aid was not secular or if it was diverted to religious uses.13
- Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). For a discussion of Lemon's abandonment and the relevance of cases in this section, see Amdt188.8.131.52 Lemon’s Purpose Prong and Amdt184.108.40.206 Endorsement Variation on Lemon.
- Agostini v. Felton, 521 U.S. 203, 234 (1997).
- See, e.g., Lynch v. Donnelly, 465 U.S. 668, 683 (1984) (holding that a city’s display of a crèche provided only an “indirect, remote, and incidental” benefit to religion); Widmar v. Vincent, 454 U.S. 263, 273–75 (1981) (holding that allowing student groups to use university facilities for religious activities offered only “incidental” benefits to religion). A government policy will also satisfy this prong if it has no effect on religion. Tony & Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 305 (1985) (rejecting Establishment Clause challenge to federal recordkeeping requirements that would apply only to certain commercial activities, with “no impact on petitioners’ own evangelical activities or on individuals engaged in volunteer work for other religious organizations” (emphasis added)).
- Sch. Dist. v. Ball, 473 U.S. 373, 393 (1985) (internal quotation marks omitted); see also Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 843–44 (1995) ( “Any benefit to religion is incidental to the government’s provision of secular [printing] services for secular purposes on a religion-neutral basis.” ).
- Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 337 (1987).
- Id. The Court held in Amos that a federal statute exempting religious organizations from certain federal nondiscrimination requirements did not violate this principle, finding “no persuasive evidence . . . that the Church’s ability to propagate its religious doctrine . . . is any greater now than it was prior to the passage of the relevant law.” Id. Accordingly, the Court said “any advancement of religion” could not “be fairly attributed to the Government.” Id.
- See Mitchell v. Helms, 530 U.S. 793, 809 (2000) (plurality opinion).
- Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8 (1993).
- Bd. of Educ. v. Allen, 392 U.S. 236 (1968); see discussion in Amdt220.127.116.11 Purpose and Effect Test Before Lemon.
- Wolman v. Walter, 433 U.S. 229, 240–41, 244, 248 (1977), partially overruled on other grounds by Mitchell v. Helms, 530 U.S. 793 (2000).
- Zobrest, 509 U.S. at 10.
- See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 113 (2001) (holding elementary school would not violate the Establishment Clause by allowing a religious club to use its facilities); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 395 (1993) (holding school board would not violate the Establishment Clause by allowing a church to use its facilities to show a religious film); Bd. of Educ. v. Mergens, 496 U.S. 226, 253 (1990) (holding that Congress could require public secondary schools, as a condition for federal funds, to grant equal access to student religious speech in forums); Widmar v. Vincent, 454 U.S. 263, 274 (1981) (holding university would not violate the Establishment Clause by allowing religious groups to use its facilities on an equal basis as other student groups); see also Amdt1.6 Relationship Between Religion Clauses and Free Speech Clause.
- See Amdt18.104.22.168 Lemon’s Effect Prong and Pervasively Sectarian Institutions; Mitchell v. Helms, 530 U.S. 793, 848–49 (2000) (O’Connor, J., concurring in the judgment).