Puget Sound Patriots

REFUTING LEMON TEST IS KEY TO RELIGIOUS LIBERTY IN SCHOOLS
By Bradley A. Hofmann (KPTP Vice-President and Communications Chair)
October 2015

Opinion Editorials Disclaimer: The views expressed by contributing authors may or may not reflect the official positions of the Kitsap Patriots Tea Party.  We believe in free, responsible speech and welcome hearing the differing viewpoints of our members.

Many school boards in Washington State recite the so-called “Lemon Test” as their basis for determining religious expression policy, and its implications allow using it as a weapon to suppress religious expression, e.g. Bremerton’s threat to Coach Joe Kennedy.  The “Lemon Test” arose from the Supreme Court case “Lemon v. Kurtzman (1971)” in which Chief Justice Warren Burger offered the following guidance to determine whether a law violates the Establishment Clause of the First Amendment:

1. “[T]he statute must have a secular legislative purpose“.
2. “[I]ts principal or primary effect must be one that neither advances nor inhibits religion“.
3. “[T]he statute must not foster “an excessive government entanglement with religion.”

The following local school districts establish their policy based on the “Lemon Test”:

• Bainbridge Island School District (Policy No. 2332 – not mentioned)
• Bremerton School District (Policy No. 2340, 1.a,b,c – directly quotes)
• North Kitsap School District (Policy No. 2340, A – directly quotes)
• Central Kitsap School District (Policy No. 2340 – not directly mentioned)
• South Kitsap School District (Policy No. 2340, A – directly quotes)
• University Place School District (where the author of this article now resides) (Policy No. 2340, A – directly quotes).

See some similarities?  In the opinion of this author, the “Lemon Test” is the lynch pin that constitutionalists must remove to restore the Founders’ true intent of the 1st Amendment.  This author is developing a case for eliminating use of the “Lemon Test” in Washington State school board policies on grounds that:

1. It unconstitutionally allows judges to legislate.  The Heritage Foundation writes, “The Lemon test … allow[s] judges to inject their policy preferences“, a role never intended for the judiciary.
2. It has been inconsistently applied (even by the same Court that created it).  A guideline which even causes the Supreme Court to conflict  within itself can hardly be a reliable tool for creating school board policy.
3. Past Supreme Court precedent and American history prove contrary to this test.  It is clear from early Supreme Court rulings, the history of the expression of our Christian heritage, and the writings & actions of the Framers of the Constitution that today’s repression of religion was never intended.
4. School boards ought to reserve the inherent right to represent the values of their constituents.  Are we a self-governing people of bottom-up power or do we elect board members who merely serve to implement the decrees handed down from the personal opinions of a select few lawyers?

Many of the above points are discussed to a degree by the joint opinion of Justice Scalia and Justice Thomas in “Lamb’s Chapel v. Center Moriches (1993)“.  I highly recommend reading the insightful (and hilarious) opinion by Scalia/Thomas denouncing the “Lemon Test”!

If you wish to assist in further research, compiling useful information, and simplifying that info into an easy-to-understand format for presentation to local school boards, contact the author of this article to collaborate efforts:

Brad Hofmann
bradhofmann@yahoo.com
facebook.com/bradhofmann85

Together, we can fight to make a case to protect the freedom of religious expression for our students, teachers, coaches, and staff.  As the Liberty Counsel declared in January 2015, “The Lemon test has meant that the Establishment Clause, designed to prevent federal establishments of religion, has morphed into a weapon aimed at eliminating all vestiges of public religious expression. It is past time to abandon that judge-made rule and return to the actual words and intent of the First Amendment.”

UPDATE 10/19/2015:
Rachel Alexander of Townhall.com, discusses the “Lemon Test” in her article about Coach Joe Kennedy: “Coach Defies Bullies, Resumes Praying After Football Games“.