From Scopes to Dover-19: The Lemon test for the establishment clause

(For previous posts in this series, see here.)

The 1968 Epperson ruling left open the question of what should be done about the teaching of some scientific theory that went clearly went against a religious belief. Wouldn’t allowing the teaching of just that theory without balancing it with the teaching of the religious belief violate the strict neutrality, as required by the 1947 Everson verdict?

The concerns raised by Supreme Court Justices Black and Stewart in Epperson were good ones and it was another case in 1971 Lemon v. Kurtzman, 403 U.S. 602 that, although not dealing directly with the teaching of evolution, led to further clarification of this tricky issue and lay the groundwork for future evolution cases.

The Lemon case arose from two separate laws bundled together. One was passed in Rhode Island that provided “for a 15% salary supplement to be paid to teachers in nonpublic schools at which the average per-pupil expenditure on secular education is below the average in public schools. Eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion.” The second law was passed in Pennsylvania and authorized “the state Superintendent of Public Instruction to “purchase” certain “secular educational services” from nonpublic schools, directly reimbursing those schools solely for teachers’ salaries, textbooks, and instructional materials. Reimbursement is restricted to courses in specific secular subjects, the textbooks and materials must be approved by the Superintendent, and no payment is to be made for any course containing “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.” ”

In overturning both these laws by votes of 8-0 and 8-1, the Court promulgated what is now called the ‘Lemon test’ that says that for any law to pass establishment clause constitutional muster, it must meet a three-pronged test:

First, the statute must have a secular legislative purpose (the ‘purpose’ prong)
Second, its principal or primary effect must be one that neither advances nor inhibits religion (the ‘effect’ prong);
Finally, the statute must not foster “an excessive government entanglement with religion.” (the ‘entanglement” prong)

This set of guidelines tried to address Black’s concerns expressed in the Epperson case by requiring that laws must have a secular purpose and that the primary effect of the law must be religiously neutral. In other words, the intent of the law must be secular and just because some law had the incidental effect of advancing or inhibiting religion did not automatically disqualify it. It also added a third criterion, requiring that the law must not result in the government getting too mixed up in the affairs of religion. The court ruled that the Rhode Island and Pennsylvania policies would result in the state having to have detailed and complicated financial and other dealings with parochial schools, thus violating the entanglement prong.

Thus applying the Lemon test, even if a scientific theory like evolution expressly goes against a religious belief, teaching just that theory and not the opposing religious belief does not violate the neutrality requirement of the establishment clause because teaching science has a clearly secular purpose, since the goal of teaching science is to advance scientific knowledge and not to undermine religion. If religion happens to be undermined because of teaching a particular scientific theory like evolution, that is an incidental, not primary, effect. By contrast, it would be unconstitutional to teach a theory whose primary intent or effect was to undermine religion.

Faced with these strong majorities by the Supreme Court on religion in schools, religious groups who opposed the teaching of evolution and/or wanted to introduce creationist alternatives into the science curriculum tried to find ways to do so that would (a) make creationism scientific (thus meeting the needs of the secular ‘purpose prong’ standard) and (b) be at least neutral in its primary effect (thus meeting the ‘effect prong’ standard).

Such groups felt that these conditions could be met by appealing to the principle of ‘fairness’, that students should be taught both sides of any controversial issue as part of good teaching practice.

As I wrote in Quest for Truth: Scientific Progress and Religious Beliefs (2000, p. 5):

Rather than seek the elimination of the teaching of evolution, a strategy that had not worked earlier, the emphasis now shifted to what was called a “balanced treatment” approach to the teaching of science. Creationists argued that the theory of evolution was just that, a “theory” and not a proven scientific fact. While conceding that this alone did not disqualify it from being taught in schools, they asserted that simple fairness demanded that other theories of life (such as creationism) that also had not been proven should be given equal time in the classroom. Students would then be able to evaluate for themselves which theory made the most sense. Creationists argued that, in addition to meeting the fairness criterion, such a balanced treatment would enhance critical thinking skills in students by encouraging them to think for themselves and make choices, rather than being told what to believe.

An early attempt to adopt this strategy occurred in 1974 in the never-say-die state of Tennessee, which passed yet another law requiring that states give an equal amount of emphasis in their biology textbooks for alternative theories of origins, including the Genesis account.

The law passed by the state said (Section 1) that:

Any biology textbook used for teaching in the public schools, which expresses an opinion of, or relates a theory about origins or creation of man and his world shall be prohibited from being used as a textbook in such system unless it specifically states that it is a theory as to the origin and creation of man and his world and is not represented to be scientific fact. Any textbook so used in the public education system which expresses an opinion or relates to a theory or theories shall give in the same text-book and under the same subject commensurate attention to, and an equal amount of emphasis on, the origins and creation of man and his world as the same is recorded in other theories, including, but not limited to, the Genesis account in the Bible.

Of course requiring the teaching of “other theories” of origins might open the door to all manner of ideas that were undesirable so the legislators added a sentence that said “The teaching of all occult or satanical beliefs of human origin is expressly excluded from this Act.”

The religious writers of this legislation also tried to address another problem in that the use of the Bible in schools might also be excluded under this law since that book obviously contained a ‘theory about origins or creation of man and his world’ and yet did not include other theories. But they thought they had a way out. Since the above restrictions applied only to textbooks, they added another section to the law (Section 2) that said:

[T]he Holy Bible shall not be defined as a textbook, but is hereby declared to be a reference work and shall not be required to carry the disclaimer above provided for textbooks.

The law was, of course, promptly challenged and the case Daniel v. Waters went to trial. The problem was that by asking for the specific inclusion of an explicitly religious belief based on the Genesis account of the Bible, they had stepped over the constitutional line. By that time, the Supreme Court had laid down so many fairly clear guidelines for adjudicating such cases that lower courts had little trouble determining that such an explicit appeal to include religious ideas in the public school curriculum violated the establishment clause of the First Amendment

In a 2-1 majority ruling in 1975 striking down the law, the US Sixth Court of Appeals said:

The result of this legislation is a clearly defined preferential position for the Biblical version of creation as opposed to any account of the development of man based on scientific research and reasoning. For a state to seek to enforce such a preference by law is to seek to accomplish the very establishment of religion which the First Amendment to the Constitution of the United States squarely forbids.

The court also argued that the law ruling out the teaching of all “occult or satanical beliefs” would violate the entanglement prong of the Lemon test because it would get the state involved in all kinds of messy theological disputes.

Throughout human history the God of some men has frequently been regarded as the Devil incarnate by men of other religious persuasions. It would be utterly impossible for the Tennessee Textbook Commission to determine which religious theories were “occult” or “satanical” without seeking to resolve the theological arguments which have embroiled and frustrated theologians through the ages.

But the advocates of religion were undeterred by this setback in Tennessee and tried to craft legislation in even more religiously neutral terms, while still seeking to undermine the theory of evolution and advance creationist alternatives. They realized that they had to avoid explicitly religious language or references to the Bible.

Thus was born what became known as ‘creation science’, which consisted of Biblical creationist ideas carefully wrapped in the language of science. That development will be described in the next posting.


Brian De Palma’s much praised and anticipated and controversial film Redacted dealing with the Iraq war opens in some cities today and later in others. (Cleveland release date is November 30th at the Cedar Lee)

The film is a fictionalized account of a real incident in which US soldiers in Iraq raped and murdered a 14-year old girl. De Palma takes “a raw, cinema-verite approach what’s essentially a faux documentary, telling the story with the aid of soldiers’ blogs, video diaries and online testimonials — all invented for the film, but based on materials De Palma found online.”

You can listen to a Fresh Air interview with De Palma about the film.


  1. bob says

    This has been a most interesting series of posts.

    I wonder if the ‘Lemon test’ would allow a curriculum in public high schools that covered world religions.

  2. says


    I think there can be no general answer to the question. It would depend on how it was decided and implemented.

    If a school board felt that a grounding in world religions was something that better equipped their students to deal with a multicultural society and the global economy, that would probably be ok.

    But if they decided to teach world religions because they were alarmed about a rise in atheism, that probably would not fly.

    It would also depend on how the policy was implemented. If the religions were taught in a non-judgmental manner, that would probably be ok, but if it was clear that students were being taught that one religion was superior to another or to having no religion, that would set off alarms.

  3. says

    I agree with the comment above… “If a school board felt that a grounding in world religions was something that better equipped their students to deal with a multicultural society and the global economy, that would probably be ok.

    But if they decided to teach world religions because they were alarmed about a rise in atheism, that probably would not fly.”

    Great article by the way!!

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