Lambeth and the Lemon Test: Part III

Previous posts discussed the ruling in Lambeth v. Board of Commissioners of Davidson County (2005), focusing on the first two prongs of the : the Purpose Prong and the Effect Prong. Here I address the Entanglement Prong: a government action must not foster an excessive entanglement with religion. As before, I am not a lawyer, and the following is not legal advice — just a layman’s understanding.

The term “excessive entanglement” is a term of art. It’s not entirely clear what entanglement is, nor when it’s excessive. The original Lemon v. Kurtzman (1971) is the best place to start. This case was about state subsidies for parochial schools. While the ruling defined all three prongs of what is now known as the Lemon test, its decision relied entirely on the third prong.

A close reading of Lemon suggests several elements that, when present, make a finding of excessive entanglement more likely.

First: intrusive surveillance of religious institutions. In order to ensure that state aid could not be used to teach religion, the state would have to monitor both the teachers and the financial records of the affected schools.

Second: ongoing involvement. While a textbook could be examined once and either approved or rejected, the teachers would have to be monitored on an ongoing basis. Likewise the schools’ financial records would have to be examined repeatedly.

Third: the use of public funds. Public money always has strings attached, which might shape the mission of a religious institution. This element has less impact if the subsidy is indirect — for example, if the money is paid to the parents of school children rather than directly to the schools.

Fourth: a likelihood of self-perpetuation and expansion. Government programs tend to grow, especially when they serve institutions with legitimate needs and strong political support. Even if it’s permissible at the outset, a program of subsidies is likely to grow into something more problematic. Better to keep the camel’s nose out of the tent in the first place.

Fifth: political divisiveness. State aid to religious schools (almost all of them Catholic) would always benefit some at the expense of others, leading to political division along religious lines. The Court noted:

Ordinarily, political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. The potential divisiveness of such conflict is a threat to the normal political process. [Internal citations omitted]

A later decision (Mueller v. Allen, 1983) appears to have narrowed the scope of the argument from political divisiveness. A footnote remarks that “the language must be regarded as confined to cases where direct financial subsidies are paid to parochial schools or to teachers in parochial schools.” This restriction seems oddly arbitrary. Why is political divisiveness a bad thing only in this one highly specific circumstance?

Another form of entanglement showed up in North Carolina Civil Liberties Union v. Constangy (1991). This case involved a state district court judge who opened every morning session with prayer. The Fourth Circuit ruled that this practice violated all three prongs of the Lemon test. As regards the Entanglement Prong, the elements listed above were largely absent. However the Court ruled that the prayers amounted to a “merging of judicial and religious functions,” made worse by the fact that they occurred on a routine and recurring basis.

In Lambeth, the elements listed above were likewise largely absent. This time the same Circuit ruled the other way and allowed the religious motto. It noted that the motto on the Government Center did not require any ongoing surveillance or other maintenance. Based on Mueller, it also ruled that the argument from political divisiveness did not apply.

How can we apply the Entanglement Prong to “” decals on police cars?

It won’t be easy. The decals don’t invite any surveillance of religious institutions, or any other dealings with them. The cost is minimal (or zero when the decals are donated) and involves no payments to religious institutions. There is no prospect for onerous and unbounded growth of a decal program such as there was for school subsidies in Lemon. The argument from political divisiveness appears to have been taken off the table by Mueller.

The best approach may be to echo the language of Constangy, and argue that the decals amount to a “merging of executive and religious functions.” More ominously, it’s a merging of law enforcement and religious functions. An inscription on a public building may be annoying but it’s not threatening — unlike decals displayed by armed men authorized to use deadly force.

The element of ongoing involvement is stronger than it was in Lambeth. A motto on a building is static and passive; once inscribed, it just sits there. Decals on police cars are more numerous; they circulate throughout the jurisdiction; they are regularly injected into stressful and conflictual situations.

Finally, we can try to revive the argument from political divisiveness. We can amply demonstrate that the motto is divisive by pointing to any discussion of the motto on FaceBook. If divisiveness was a valid argument in the Lemon case, there’s no good reason why it can’t be a valid argument in circumstances that are not identical.

Scott McKellar

Scott McKellar is a software developer and keyboard warrior in the St. Louis area.