Courtroom interior_newWritten by Don Byrd

If you were one of the tens of thousands who listened in on the live stream of yesterday’s dramatic 9th Circuit hearing on President Trump’s controversial immigration Executive Order, you heard a lot of back and forth about precedent, procedure, standing, and other important but nuanced, legalese-sounding details in the arguments on both sides. At the risk of diving too deep into the weeds for a blog post, I thought I would shine a light on just one of those questions that came up. If you wondered “what are they talking about?” or just are curious about some foundational church-state Supreme Court precedent, this post is for you.

At one point, Judge Friedland asked counsel representing the states of Washington and Minnesota whether in his view the court should apply Larson or Lemon in deciding whether the Order violates the First Amendment ban on government establishment of religion. This question gets to the issue of which standard to apply – which questions the court should ask – to determine whether a particular law or other government action violates the Establishment Clause.

The question of Larson or Lemon is – to put it mildly – only one of many potential questions a court might address in resolving this very complicated dispute over the President’s Order.  However, as a church-state concern that was raised directly by one of the appellate judges during the hearing yesterday, it seems worth a brief explainer, quite separate from the more difficult question of whether it will or should have any bearing on this case. 

Larson and Lemon are two U.S. Supreme Court cases that figure prominently in numerous church-state disputes. It’s good to know what they stand for! Below is a brief description of each, for your church-state background pleasure.

Lemon v. Kurtzman (1971) (Read the opinion here)

Lemon v. Kurtzman is a 1971 Supreme Court case about the constitutionality of state laws in Rhode Island and Pennsylvania that authorized the payment of taxpayer funds to support elements of secular education in nonpublic schools, including church-affiliated religious schools. Payment from the states included supplements to teacher salaries and reimbursements for books and school supplies, provided that the instruction and materials being funded were not religious in nature. 

Plaintiffs argued that, despite the laws’ focus on secular educational materials and instruction, they violated the Establishment Clause by improperly entangling the state government with the religious institutions receiving the funds. A majority of the Supreme Court agreed and ruled the laws an unconstitutional infringement on the separation of church and state.

Synthesizing the Court’s prior rulings in Establishment Clause cases, the Lemon opinion found three central tests determine whether a violation has occurred. If the challenged government action fails any of the three, then it runs afoul of the First Amendment.

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion.”

Applying that test to the laws in question in that case, the Supreme Court found that there was a secular purpose (to “enhance the quality of secular education in all schools”), but that the funding arrangement failed the third question because the religious character of the schools “gives rise to entangling church-state relationships,” in part because the state oversight necessary to ensure the funds were used only for secular purpose would be intrusive. (The Court declined to address the second test because it was unnecessary once it was determined that the state laws violate the third.)

The three-prong “Lemon test” – 1) is there a secular purpose? 2) is its primary effect to advance or inhibit religion? and 3) does it create an “excessive entanglement” between government and religion? – has been used to adjudicate a variety of church-state cases since then. it remains a fundamental approach in applying the Establishment Clause. That being said, some courts have questioned its usefulness, and chosen to use other approaches, in certain church-state contexts.

Larson v. Valente (1982) (Read the opinion here)

Larson v. Valente is a 1982 Supreme Court case asking whether a particular Minnesota law related to charitable solicitations violated the Establishment Clause. The law required charitable organizations to register with and report to the state before soliciting charitable contributions. Religious organizations were exempt from the requirement, provided that more than 50% of their contributions came from members. Religious organizations that received more than 50% of its contributions from nonmembers were subject to the registration and reporting requirements.

Plaintiffs argued that the law violates the separation of church and state by giving preference and benefit to one set of religious organizations over another. A narrow majority of the Supreme Court agreed and ruled the 50% provision unconstitutional as applied to religious organizations. The Court found, however, that the Lemon test did not apply to this dispute because it was “intended to apply to laws affording a uniform benefit to all religions, and not to provisions . . .  that discriminate among religions.” 

Because the Court found the 50% rule grants preferences to some religious organizations over others, it held that the law does discriminate among religions, even though it does not mention any denomination by name. “The clearest command of the Establishment Clause,” the Larson Court famously announced, “is that one religious denomination cannot be officially preferred over another.”

Accordingly, the Court found that the Minnesota law was subject to “strict” constitutional scrutiny, rather than the Lemon test. Strict scrutiny requires that such discriminatory government action “must be invalidated unless it is justified by a compelling government interest, and unless it is closely fitted to further that interest.”

Strict scrutiny is generally the toughest standard courts impose on government action. It is a high hurdle to overcome. Here, the Court found that while Minnesota has a significant interest in protecting its citizens from fraudulent charitable solicitation practices that may even rise to the level of “compelling,” the law is not “closely fitted” to that interest. Specifically, the Court found no evidentiary support in the record for the state’s arguments that the “selective” 50% requirement would in fact best safeguard the public interest.

Returning to the dispute over President Trump’s immigration Executive Order, when Judge Friedland asked whether Larson or Lemon applied, she was in part asking the Washington State lawyer, “Do you think the Order demonstrates discrimination among religions, even though it does not mention Muslims by name?” Of course, he says yes, that the Order discriminates on the basis of religion even though it doesn’t mention any specific religion by name, and that as a result Larson/strict scrutiny applies. (He argues that the Order should be found unconstitutional under Lemon analysis as well). The Trump administration’s attorney naturally says no. His reply brief to the 9th Circuit argues the Order is “neutral with respect to religion.”