Is the "Lemon Test" applicable to state discrimination against gays?

This is more of a general question because I’m asking, not debating; I don’t have enough knowledge of Constitutional Law to have an informed opinion. However, given the subject there’s likely to be disagreement so I’ll plant it here and leave the discretion of the Mod Squad whether or not it stays.

The APA declared more than 30 years ago that homosexuality is not a pathology; the most vociferous opponents of this view tend to be fringe “experts” such as the often discredited and provably unethical Paul Cameron. Numerous scholarly and objective psychological and sociological studies have demonstrated that there is nothing inherently harmful to society about gay enfranchisement or gay parenting. However, most states still refuse to add sexual orientation to their criteria for non-discrimination in employment/housing, etc., and amendments to legally define marriage in such a way as to specifically and deliberately exclude gay couples from receiving state recognition are being proposed in many states as well as the Federal government. Many of the most vocal proponents of the proposed amendments specifically, one might even say blatantly, cite Judeo-Christian teachings as their justification.

The Supreme Court case Lemon v. Kurtzman (which involved state support of parochial schools rather than any type of gay issue) resulted in what is known as the Lemon Test, which states

Since most anti gay-rights initiatives are religious in motivation, how can the Constitution be altered to exclude gay marriage on these merits? A separate but related question: Does a state have the power to pass an amendment that violates the Lemon Test?

Thanks for any info.

A blog post on this very subject from a self identified political scientist and Constitutional scholar*.

*I use the term “self identified” not from sarcasm but because I don’t know the fellow or his credentials and can’t vouch either way.

** NO!**

The so-called Lemon Test is testimony to the deterioration of the quality of judical decisions that are being handed down by our higher courts today. The Lemon Decision reads like the work of a second-rate ad-clip for a soap commercial. How contrived, how cutesy, how in-the-know with it’s three catchy prongs.

If this is the language of law, then what is the language of Comic Books?

**The Supreme Court case Lemon v. Kurtzman which involved state support of parochial schools resulted in what is known as the Lemon Test, which states…


  1. The government’s action must not promote a particular religion or religious view;
    Laws don’t address “Government’s actions”, laws address laws that may or may not be established.
    “a particular religion or a (particular? Any?) religious view.” the sloppy pharsing leaves open the question of the government supporting all religious views.

(2) The government’s action must not have the primary effect of either advancing or inhibiting religion; and
What about secondary government action; can it inhibit or advance religion? This clause was obviously included in order to have a middle prong. This “prong” is stupid and redundant.

(3) The government’s action must not result in an “excessive entanglement” of the government and religion.
Oh brother! “excessive entanglement”, that one little vague phrase will keep a graduating class of money-grubbing young attorneys-at-law, busy at law for many houseboats and sport cars and fast women to come. What trash!**

Evenso, to somehow build a case that because some religions believe that marriage should between the two particular types of human beings who can produce like-kind off-spring, and because gay guys and gay girls are made ungay because they feel left out of this marriage ritual can find balm through legal address in the silly jumble of Supreme Court’s words above is…DUMB.

From the link posted by the OP:

If you can sell soap with this legal mumbo jumbo, Milum, you’re a far better salesman than me. Did you even read the linked site, let alone the case itself? If you had, you’d notice that the judgment was handed down in 1971 - it’s hardly a testimony to modern legal liberals.

Everything about your post is obnoxious, from the way you change the quote (“a particular religion or religious view” to “a particular religion or a (particular? Any?) religious view”) so you can poke fun at it, to the accusation that the second ‘prong’ is the legal equivalent of “Hi, Opal”, from obtuse redundancies like “laws address laws!” to the red, bold formatting.

…and your run-on sentences are irritating too.

Ah** lambchops**, you’re right. My run-on sentences irritated me too.

I apologize. I overspent my alloted time before dinner formating the nice** red** color and** times new roman ** font, which left no time to restate my thoughts more clearly. My lack of consideration for others was rude.

But yet I wonder…tell me** lambchop**, was my incoherency so overwhelming that you were without breath to address the semantical clearity of the 1971 Supreme Court wording that was at hand?

After all, the question asked by Sampiro was not about the occasional mindfalls of the Milum but about the meaning of the so-called, ill-stated, cutsy-whootsy, obtuse, three pronged, frivolous decision by the 1971 hippy version of the US Supreme Court. :slight_smile:

I don’t know what your issue is with “government action”; Lemon covers any number of government actions which aren’t directly established by law, such as executive appropriations, public benefits, and hiring practices. As far as the question you say it leaves open- it doesn’t. Everson v. Board of Education, which wasn’t overturned by Lemon, merely supplemented by it, had already taken care of that.
“…cannot pass laws which aid one religion, aid all religions, or prefer one religion over another.”

Read again. The “secondary” is not referring to the action, but to its effect. This is a clear statement that incidental effects benefiting or hindering religion are fine so long as the legislation’s intent is to further a clear secular goal. See Oregon v. Smith if you want an example.

To answer the OP, the Lemon test might be applied to discrimination on the basis of sexual orientation if a nice test case comes along in which empirical evidence can be found showing that discrimination against gays is the result of religious belief. Sexual orientation is as of now not a protected class, and theLemon opinion deals with the Establishment Clause, not the Due Process or Equal Protection clauses, which are what create a bar to discrimination.

Great, Really Not all that Bright, A discussion. :slight_smile:

RNATB: I don’t know what your issue is with “government action”.

Milum: I have no" issue" with “government action”. What the hell does “issue” mean? But I do realize that all instructions from the Supreme Court are absolutely constrained by the United States Constitution. And as such any action taken by the government must adhere to that Constitution. Therefore any reference by the courts to any extralegal action by the government without a firm basis in the wording of the Constitution is “legislating” and is therefore prohibited by our Constitution. How could it be otherwise?

RNATB:. As far as the question you say it leaves open- it doesn’t. Everson v. Board of Education, which wasn’t overturned by Lemon, merely supplemented by it, had already taken care of that.
“…cannot pass laws which aid one religion, aid all religions, or prefer one religion over another.”

Milum: So what’s wrong with that? How could “Lemon”, as you so concisely call the court’s ruling, transcend that? Yet the condensation of the 1971 isolated phrase “* 1) The government’s action must not promote a particular religion or religious view;” *distorts the essense of the “Everson” cogent meaning and leads waywardly to legal duplicity and contention.

RNATB: To answer the OP, the Lemon test might be applied to discrimination on the basis of sexual orientation if a nice test case comes along in which empirical evidence can be found showing that discrimination against gays is the result of religious belief. Sexual orientation is as of now not a protected class, and the Lemon opinion deals with the Establishment Clause, not the Due Process or Equal Protection clauses, which are what create a bar to discrimination.

Milum: Oh but no,** RNATB**, religious discrimination against gay people is not protected by any law. The right to discriminate by religion, or just for plain meanness, is guranteed by the free speech clause of the First Amendment. Only the access to equal standing under law, as provided by the US Constitution, is guranteed to all men, straight or gay, rich or poor, black or yellow, red or white, Baptists or otherwise, commies or good guys, and, after a bit of thought, …women.
No offense, ** RNATB**, but you won’t be so cocksure about the altruistic nature of the pronouncements of the fine people who sit in our courts as you grow older. But then again, you will have no choice, you will get wiser. :slight_smile:

Ah, has history ever encountered a wilder bacchanalia than that Hippie-Fest we call the 1971 SCOTUS? Let’s remember those hellions in song and praise (starting with one of the few nationally famous judicial figures ever to come from Alabama who would probably not have allowed spectral evidence in his courtroom):

Hugo L. “Dude, where’s my bowl?” Black*, 1886-1971, appt. by FDR

William O. “Moonpappy” Douglas, 1898-1980, appt. by FDR

John M. “Twice-rolled” Harlan, 1899-1980, appt. by Eisenhower

William J. “Mescalin Max” Brennan, Jr. 1906-1997, appt. by Eisenhower

Potter “Pot Man” Stewart, 1915-1985, appt. by Eisenhower

Byron R. “Look at my hand! No, really look at it!” White, 1917-2002, appt. by JFK

Thurgood “Sexual Chocolate” Marshall, 1908-1993, appt. by LBJ

**Chief Justice Warren “I’ve Got the Bitchinest Munchies!” Burger,**1907-1995, Appt. by Nixon

Harry “Dude, my name is like hairy… black… man! Sweet!” Blackmun, 1908-1999, appt. by Nixon

So these nine hipcats retired behind their beaded curtains and after a Laugh-In choreographed dance session Burger is recorded as saying “Dudes, check it out- this guys name is Lemon… get it? Lemon! Yellow… they call me mellow yellow…Let’s call this the like… goddam it Brennan, stop bogartin’ the splif!.. lemon test… like a test… for lemons…only it’s really about… like… god… and stuff…” before breaking into riotous convulsive laughter followed by tears followed by an insistence that he was bleeding.

For those who are mathematically impaired, incidentally, this hippie court was 5 Republicans and 4 Democrats ranging in age from 44 to 85 with a median age of 66- your typical hippies whack jobs.
*Hugo LaFayette Black- along with Judge James Edwin Horton is one of the two Alabama natives in judicial history to somewhat redeem the state that spawned Roy Moore. Born near my own birthplace in the hills of AL, he joined the KKK as an ambitious young lawyer but quickly sobered and renounced them. Later he became the most liberal and most encyclopedic mind on SCOTUS, having to avoid his homestate for most of the last few decades of his life due to death threats made over his support of Civil Rights, redeeming his earlier misjudgements. He was the subject of the famous quip “As a young man he put on white robes and scared the shit out of Alabama black folks; as an old man he put on black robes and scared the shit out of Alabama white folks.” Great man (though my father couldn’t say his name without spitting tobacco juice in protest).

RNATB wasn’t saying that “government action” referred to “extralegal” / illegal actions. He / she was merely saying that it’s a catch-all term designed to cover things done by the government that aren’t laws. For example, an executive isn’t a law, but it is a government action permitted by the Constitution.

Well, if anything, the Lemon (btw, it’s a common bit of legalese, using condensed case names) judgment, as represented in that single-line quote, would appear to be MORE limited than Everson. IANA (US) L, but the Lemon quote appears to indicate that only positive actions promoting religion are prohibited, whereas the Everson quote refers to a ban on promoting a religion, all religions or one religion over another.

Since we’re talking about a potential government action here, the equal protection clause is the relevant one. That is, governmental abridgement of the rights of homosexuals is unconstitutional - there is no ‘right’ to discriminate on this basis.

lambchops understood and defended my positions almost exactly as I would have (once the case being discussed has been mentioned, court opinions usually refer to it by using only the name of the plaintiff or defendant, and I do the same, which is why I “so concisely” refer to Lemon as “Lemon”) so I’m not going to respond to the rest of your post. I will respond to the above now, though…

The right to discrimination against gay people is certainly NOT guaranteed by the free speech clause of the first amendment. The right to advocate discrimination against gay people is guaranteed, but the right to directly discriminate against them is not. Speech is expression; discrimination is action, which is not protected by the First Amendment with the exception of certain aspects of religious practice. Discrimination against homosexuals is not one of these aspects, at least not in non-private spheres. Of course, discrimination in employment against blacks isn’t expressly forbidden by the Constitution either. The Court has ruled that certain classifications, such as race, are inherently “suspect”, and that government must show a legitimate interest in applying them. Further, it must show that the legislation being challenged is as narrowly tailored as possible to achieving the desired end. These two requirements, of course, form the ‘strict scrutiny’ test. As I said in my earlier post, sexual orientation has not yet been deemed a protected class (ie. one subject to strict scrutiny when legislated against), and is not as inherently suspect as race, sex*, national origin, religion, and marital status. Thus, strict scrutiny is not generally being applied to legislation which singles out those of non-heterosexual orientation.

Samp’s blog link is effectively irrelevant; while many (myself included) might wish that certain rights could be read into the Constitution (particularly its Amendments), the fact remains that the COTUS may be read in numerous ways. Those who suggest that the Founding Fathers intended to imply (the original intent method of constitutional interpretation) that a right to SSM is protected under the Constitution are either deluded or deliberately disingenuous. The Founders intended to imply no such thing; ample historical evidence shows that the idea of a same-sex marriage would have been ludicrous to virtually all of them.
However, Supreme Court Justices rarely adopt the original intent approach, for which we ought to be grateful. Contraception, Miranda rights, the Civil Rights Act, and interracial marriage would be dimly imagined fantasies without a degree of activism in the Court. Sometimes, SCOTUS opinions make certain observations which the justices signing on to them fail to understand the significance of. Griswold v. Connecticut and Roe v. Wade (the banning of contraception/abortion is unconstitutional, given the implied right to privacy) led to the landmark Lawrence v. Texas (the banning of sodomy is unconstitutional, given that same right). A right to SSM is virtually (though not absolutely) granted under Loving v. Virginia, and sooner or later, the Court will recognize this. It is not granted by Lemon, though- a religious source of discrimination is simply not enough to overturn legislative discrimination.

Milum, I have few illusions when it comes to the courts. There are very few judges, SC or lower, who I would entrust the future of American jurisprudence to, were it my decision. That said, the general course of the judiciary over the last forty years or so has been one agreeable to my personal holdings.

I wish.

Damn. Is this what pay-per-view has wrought? A thread of civility where posters express themselves with humor and logic and good spirit without so much as a friendly go-to-hell-you-stupid-bastards to give the discussion a bit of bite?

Say Sampiro, lambchops, Pravik and Really Not All That Bright, why don’t we all get together at a tea house somewhere in the south and re-institute a love-in?
I think I remember the words to the Pepsi song…

We are the world
We are the children
We are the people
Who don’t stop givin’

Pretty good, huh? :slight_smile:

Will you be bringing the cross or the kerosene?

Returning ever so briefly to the OP I would disagree that laws that limit marriage to heterosexuals are barred by the Lemon test. Statutes that make murder a crime are not barred under the Lemon test even though one of the Ten Commandments is that one shall not kill. Even if we accept that the Lemon test is screwy (and it is, as at its heart it says that Christian based Christmas ornaments can be put on a city hall lawn as long as the display is junked up with secular stuff like Rudolph the Red Nosed Reindeer and Frosty the Snowman) that doesn’t mean that every law that sprang first from religion is automatically invalid.

Whoah, whoah, whoah there. Murder isn’t a crime because the Ten Commandments say it is. Murder has been a crime in every functioning society on the face of the earth; calling a prohibition against it a “Judeo-Christian invention” is like suggesting that childbirth is a Judeo-Christian invention. The reality is that every culture and every faith has criminalized murder, even atheistic civilizations.
The same principle used to apply to sodomy- the prosecution in Bowers v. Hardwick submitted a good deal of evidence attempting to show that prohibitions against sodomy were almost universal in human society, and the Court swallowed it hook, line, and sinker.

Murder is a crime because it has a detrimental effect on society, not because Moses said it is.

Right, but I think he means that just because there are religious prohibitions against murder, that doesn’t mean that anti-murder laws fail the Lemon test. Likewise, just because there are religious prohibitions against same sex marriage, that doesn’t mean that laws against same sex marriage fail the Lemon test.

If one would be so kind as to proffer a valid non-religious reason to prohibit same-sex marriage…?

Yes, that’s what I meant. Thanks for saying it better than I did!

I don’t know if I can come up with any valid reasons. Here are some maybe invalid reasons, though, but you could make some sort of argument.

  1. Gay marriage would encourage gay people to come out of the closet, and a state might have an interest in not wanting a large population of openly gay people, either for community standards or for their reputation. “Come to Wisconsin-the Gay State”. The idea that being openly gay is somewhat bad, disreputable, or immoral touches on religion, of course, but not neccesarily to the extent that it would violate Lemon, the same way that places can have obscenity laws or laws against pornography without violating Lemon.

  2. A state could argue that they contract marriages for the purpose of encougaging a stable nuclear family environment for children (because children who grow in in stable families are more adjusted, commit less crimes, or whatever). Childless couples benefit from this, of course, but its not the primary goal. Gay marriages don’t further that, so granting them doesn’t further a state interest.

I don’t neccesarily think either of the arguments I just made are good arguments (in fact, I’m pretty certain they’re not), but they’re both possible arguments to be made that Lemon wouldn’t get in the way of.

Yesterday morning I awoke early in good cheer. I rushed to the computer to see what my new pal Sampiro had to say. My heart sank. This is what my newly found friend, Sampiro, had to say…

Will you be bringing the cross or the kerosene?

I was crushed. What had I ever said to Sampiro that would make him respond with such hatred and malice?

Disillusioned, I climbed back in bed and went to sleep, and if I sleep late in the morning I dream, and yesterday morning my dream was about Sampiro…

We were sitting across from each other in a televison booth set above a vast convention hall. We were having a discussion about the relative merits of the “Lemon” ; no other than Supreme Court Justice Hugo Black was incongrously moderating the debate.

I was nervous. I had never before talked in front of televison cameras that carried my words to millions of viewers in every state, but outwardly I appeared cool and confident, even cocky, chosing my wordings with deliberate care in the manner of the great Bill Buckley.

On the other hand Sampiro, sitting directly to my left, fumbled his words badly and appeared troubled. I had never met Mr. Sampiro before and was amusingly surprized to see that he looked like a young Gore Vidal before he was so roundly socked back in 1968. Sampiro was talking. He rambled on and long, speaking more in terms of wishes than of logic he wondered why the “Lemon” clause against government involvement in religion should not apply to homosexuals because Christians were obviously the ones who persecuted them. I almost dozed off, but I heard him clearly when he looked over at me and asked…

Will you be bringing the cross or the kerosene?

Knocking over my chair, I stood up. I walked over to Sampiro and stuck a finger in his face. “Listen, you” I said. "Don’t you ever call me a pro-crypto-klansman again, or I’ll sock you like your never been socked before…you…you… " liberal! "

And on that note I woke up. :slight_smile: