Josh Blackman, This Lemon Comes as a Lemon: The Lemon Test, Legislative History, and the Pursuit of a Statute’s Secular Purpose (January 17, 2009). Available at SSRN: http://ssrn.com/abstract=1329343
The Lemon Test, derived from Lemon v. Kurtzman, is a three-pronged test to determine whether a government action violates the Establishment Clause of the First Amendment. This article will focus on the first prong, which queries whether the statute has a “secular purpose.” While many other articles have focused on the secular aspect of this prong, few have considered what exactly purpose means.
This article proceeds as follows. In Part I, I introduce the establishment clause, and discuss how the Supreme Court treated this issue prior to Lemon. Next, I introduce Lemon v. Kurtzman, discuss the Lemon test, including some criticisms of this ghoulish standard. I conclude with provide detail on the first prong, the purpose prong. [...]
I conclude by making two modest proposals to modify the Lemon test. First, the purpose prong of the Lemon test should mean what it says. Rather than trying to construe the intent of the legislature, the Courts should focus on the statute, and its text. By limiting the analysis to the text, this approach cabins a judges discretion, and minimizes the subjectivity inherent in finding the purpose of a statute amidst a sea of conflicting legislative histories. Second, I propose that the Court adopt an original public meaning analysis to ascertain how an objective observer would understand the statute, and eschew reliance on legislative history.
