Lemon plaintiff, out of limelight, still tracks church-state issues

Wednesday, May 19, 2004

One in a series of interviews with principals involved in First Amendment-related U.S. Supreme Court cases (see “SCT interview” keyword below).

He seeks no fame for his role in the famous church-state separation case that bears his name. For years some of his neighbors in Pennsylvania, including a law school professor, had no idea of his connection to the establishment clause of the First Amendment. Though he craves no public recognition, he cares deeply about the separation of church and state. His name is Alton J. Lemon, the lead plaintiff in the 1971 U.S. Supreme Court decision Lemon v. Kurtzman.

The case concerned Pennsylvania and Rhode Island laws that provided state funds for teacher salaries in private elementary schools. Pennsylvania’s 1968 law, for example, poured more than $5 million of state money a year into more than a thousand nonpublic elementary and secondary schools. The vast majority of these schools were Roman Catholic.

The Supreme Court determined that both state laws violated the establishment clause, which says, “Congress shall make no law respecting an establishment of religion.” (The 14th Amendment later applied the Bill of Rights to the states.) Perhaps even more important, the Court adopted what became known as the Lemon test. Chief Justice Warren Burger wrote for the Court:

“Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over these many years. Three such tests may be gleaned from our cases. 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 entanglement with religion.’”

Over the years the three-pronged Lemon test has received much criticism from legal commentators and Supreme Court justices. For instance, in a 1993 decision Justice Antonin Scalia referred to Lemon as “some ghoul in a late-night horror movie.” The justices have developed other tests to examine whether government regulations offend the establishment clause, such as the endorsement and coercion tests. In 1997, the Court modified the Lemon test somewhat. But it remains a viable and vital part of establishment-clause jurisprudence more than 30 years after the decision.

Alton Lemon fervently believes that the spheres of government and religion should remain separate. He questions whether the current Supreme Court will adequately ensure a proper wall of separation between church and state. In an interview in May 2004, Lemon spoke about his role in the historic case, his views on the Elk Grove Unified School Dist. v. Newdow Pledge of Allegiance case pending before the high court, and other matters.

Q: How does it feel to have your name listed on the seminal establishment- clause case and your name attached to the landmark test for church-state separation inquiries?

Lemon: I really don’t know why my name ended up first. Perhaps some of the other plaintiffs lived outside of the state. It was a surprise to me that my name was listed first. I feel very comfortable with the Lemon test; I don’t have any complaints about it.

Q: Why did you become involved in challenging the Pennsylvania law at issue in Lemon v. Kurtzman?

Lemon: I was a member of the American Civil Liberties Union and I attended some of the meetings. I recall that at one of the meetings, we had a discussion about this Pennsylvania law. The executive director of the Pennsylvania ACLU at the time, Spencer Cox, must have liked my comments. He asked me if I would be a plaintiff in the case. I told him I thought I’d be interested in participating. It was a little risky because the Catholic Church was very involved in the area and my supervisor at the Housing and Urban Development (agency) was Catholic.

Q: Did you face any public opposition for your participation in the lawsuit?

Lemon: No, I really didn’t face any public opposition. I agreed with filing the suit and we went to court and we won. I didn’t go around every street corner and mention the suit, mind you. Most people had no idea that I was involved in the case.

Q: Were you confident that you would win the case?

Lemon: I felt it was a case that we should win because the trend seemed to be going in our favor. By the way, I suspect that President Bush would make Protestantism Christianity a state church if he could.

Q: What about news coverage of the case?

Lemon: One thing sticks in my mind. When my son was 9-10 years old, a local newspaper called my house and started questioning my son about the case. I called the newspaper and raised hell with the newspaper. They agreed not to run the story.

Q: How do you think the current Supreme Court is with respect to church-state separation issues?

Lemon: I have a sense that the Court is not as protective of individual liberty and probably will not be as long as a similar Court is on the bench. I am not very optimistic because there is a very strong conservative tendency on the Court.

Q: Do you have a strong opinion about the Michael Newdow pledge case currently before the Supreme Court?

Lemon: I think having added the phrase “under God” to the pledge (in 1954) was ridiculous when it was done and I think it is equally ridiculous now.

Q: What about with respect to public schools and school prayer? How do you think the Supreme Court has done in that area?

Lemon: I think the courts have done fairly well there.

Q: Do you have an opinion on school vouchers?

Lemon: I don’t think we should have vouchers. Nobody appears to be listening to me. The public schools aren’t getting the funds that they should be getting, but I’m still opposed to (a) voucher system. I feel very strongly that if a voucher system comes in, other things will resurface that would not be very helpful.

Q: When you hear a phrase such as “Why Should God Bless Us, When We’ve Kicked Him Out of Our Schools,” what do you think?

Lemon: I can remember growing up in Atlanta and the school day would open with a Protestant devotional every day. This notion of kicking God out of schools I find ridiculous.

Q: What are your recollections of the attorney who argued your case before the Supreme Court, Henry Sawyer?

Lemon: I remember having a committee of attorneys but I always dealt with him. … I don’t think he was very conservative religion-wise. I recall that he was a very nice person and an excellent lawyer.

Q: Do you have a religious affiliation?

Lemon: No, I was a member of the Ethical Culture Society but I am not affiliated with them now. I spent quite a bit of time there and was even president for a time.

Q: Have you been invited to speak to law schools and similar places given your involvement in this famous case?

Lemon: No, I have not been invited to speak and lecture at law schools. I had a neighbor who was a teacher at a law school but she didn’t realize I was the Al Lemon involved in the case. She said: “Had I known that, I would have had you down to the law school.” But I have never sought public recognition for my role in the case. Almost all of our friends are Protestant and some don’t understand my position. We had one friend who was a schoolteacher who thought it was terrible that God was being removed from the schools.

Q: You are retired now. What do you do with yourself these days?

Lemon: I sit on the boards of several organizations. I have two young granddaughters and one is in a preschool program and I take her to and from school. I am on the board of a local neighborhood center. I find that as I get older, I have less and less time for myself. I am involved with my granddaughters and other things.

Q: Are you happy with your place in history?

Lemon: Some people go down in history in famous books, but I might go in a dusty law book or something. I don’t view things out of proportion. I am proud to have been involved in the case.

Q: How did you come to become a member of the ACLU?

Lemon: I went to a church-related college, Morehouse College in Atlanta. At the time I wasn’t taking religion very seriously. I got drafted into the Army and started reading about church-state issues. I was discharged and moved to Philly. I continued to read things, mainly The New York Times, that stimulated my interest. Once I was a member of the ACLU and the issue would come up regularly, it stirred my interest.

Q: Does Alton Lemon have a life motto that he lives by?

Lemon: I am not sure I really have one. I guess I am always looking out for things that cause people to be underdogs. When I look into it, I am not sure I understand the basis for why they are underdogs. I grew up in a city school and every day opened with a prayer, a Protestant devotion. It never really registered with me. You know almost all of our friends are Protestant and Baptists. But, they go their way and I go mine.

Q: Anything else you’d like to add?

Lemon: At this point in my life I seriously wonder why we have religion. I am not so sure it does more good than harm. I think that the battle for church-state separation has to be a continuing fight.

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