Alton T. Lemon, Philadelphia Plaintiff in Pioneering Church and State Lawsuit, Passes Away

By Thad Eagles, Legal Intern

In 1971, a group of Pennsylvania taxpayers who objected to having their taxes used to fund parochial schools took their fight to preserve the separation of church and state all the way to the Supreme Court. The Pennsylvania legislature had passed a statute allowing school districts to reimburse parochial schools, which at the time were almost all Catholic-affiliated, for the salaries of teachers and textbooks used in “secular” classes. With representation from the ACLU of Pennsylvania provided pro bono by the law firm of Drinker Biddle, the taxpayers won. On June 28, 1971, a unanimous Supreme Court overturned the Pennsylvania statutes. Alton T. Lemon, a civil rights activist and the lead plaintiff in this case, passed away on May 4^th in Jenkintown, Pennsylvania. He was 84 years old.

Most immediately, Lemon v. Kurtzman established that it violates the First Amendment for governments to help fund parochial schools, even for nominally secular activities. The Court held that the inevitable court intrusion into the details of school affairs required to ensure that government funds were used for secular activities and not for religious ones would create an impermissibly “intimate and continuing relationship between church and state.”

The more lasting effect of the case, however, was the new test it created to determine whether government activities or programs violate the First Amendment Establishment Clause principle of the separation of church and state. To pass this test, legislation must have a secular legislative purpose, cannot have the primary effect of either advancing or inhibiting religion, and cannot result in “excessive government entanglement” with religion. This test, known in legal circles as the “Lemon Test,” has made Lemon v. Kurtzmanone of the most cited decisions ever, as it is now the basic framework for every First Amendment case involving the separation of church and state.

The Lemon Test has been employed by the Supreme Court to strike down legislation requiring the placement of the Ten Commandments in school classrooms, that creationism (including “intelligent design”) be taught alongside evolution, teacher-led prayer in schools, and a whole host of other government actions that are unconstitutionally entangled with religion. In 2010, this test was employed by the federal court in the Eastern District of Pennsylvania, in response to a lawsuit brought by the ACLU of Pennsylvania, to strike down a state statute prohibiting corporate names containing words that “profane the Lord’s name.” As Chief Justice Burger wrote in his opinion for the court in 1971, the Lemon Test helps enforce the constitutional mandate that “government is to be entirely excluded from the area of religious instruction and churches excluded from the affairs of government.”

For his participation in the case, Alton T. Lemon won the 2003 First Amendment Hero Award from the Freedom from Religion Foundation. He settled in Philadelphia after serving in the Army, getting a master’s degree in social work from the University of Pennsylvania. He was a lifelong member and supporter of the ACLU. He was also the first African-American president of the Ethical Society of Philadelphia and director of the Police Community Relations Division of the North City Congress. Sadly, we have lost Alton T. Lemon, but thankfully, his bravery helped solidify important freedoms protected by the First Amendment, and the legal principle that bears his name remains as vital and important today as in 1971.

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