Academic

Blackman on Lemon v. Kurtzman

By Lawrence Solum

Josh Blackman (George Mason University - School of Law) has posted This Lemon Comes as a Lemon: The Lemon Test, Legislative History, and the Pursuit of a Statute's Secular Purpose on SSRN.  Here is the abstract:

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.

In Part II, in order to further understand what the first prong of Lemon requires, I begin by discussing what the different types of purpose are. Next I provide a brief background of legislative history, a common resource used to divine legislative intent. After introducing legislative history, I pose, and answer several questions. Can the actual intent ever be known? No. Does a legislature actually have a single intent? Usually not. Whose intentions in the legislature matter? Depends. Can legislative history reliably and objectively reveal intent? Seldom. Is legislative intent a mere cover for judicial intent? Most likely.

Next, I explain why courts relying on legislative history to establish legislative intent creates a self-perpetuating cycle that reduces the reliability of legislative history. As courts rely on legislative history, politicians are motivated to modify the record to reflect their subjective biases. Attorneys and lobbyists have great incentives to use the legislative history to advance their agendas.

In this exploration of the First Amendment, I also advance a novel theory about relying on historical sources in originalist analyses, and by applying a commonly used evidentiary rule, show how use of older atextual sources is more reliable than relying on modern day legislative histories, because these older materials lacked the incentive for fabrication. This theory rationalizes why many originalists, including Justice Scalia, readily cite legislative histories of older vintage, but summarily reject modern legislative history.

In Part III, I build upon Part I and II, and question whether the purpose should actually matter in the Lemon test. I argue no. Further, the purpose prong forces Judges to rely on unreliable extrinsic legislative history. After conducting a brief survey of cases that use the first Lemon prong to strike down statutes, I conclude that the purpose prong is flawed. It yields inconsistent, and in many cases perverse results, and rewards savvy politicians who can hide religious purposes from the legislative record. Much like the mischievous wolf who comes not in sheep's clothing, this lemon comes as a lemon.

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.

Full post as published by Legal Theory Blog on January 21, 2009 (boomark / email).