By ADAM LIPTAK Published: May 25, 2013
Alton T. Lemon, a civil rights activist whose objection to state aid to religious schools gave rise to a watershed 1971 Supreme Court decision, died on May 4 in Jenkintown, Pa. He was 84.
He had had Alzheimer’s disease, said Korinna Shaw, his daughter-in-law.
Mr. Lemon’s lawsuit challenged a 1968 Pennsylvania law that reimbursed religious schools for some expenses, including teachers’ salaries and textbooks, so long as they related to instruction on secular subjects also taught in the public schools.
Chief Justice Warren E. Burger, writing for the court inLemon v. Kurtzman, said the law violated the First Amendment’s prohibition of government establishment of religion.
The ruling set out what came to be known as the Lemon test, which requires courts to consider whether the challenged government practice has a secular purpose, whether its primary effect is to advance or inhibit religion, and whether it fosters excessive government entanglement with religion.
Chief Justice Burger wrote that the Pennsylvania law, and a similar one in Rhode Island, ran afoul of the entanglement part of the test. But he cautioned that “judicial caveats against entanglement must recognize that the line of separation, far from being a ‘wall,’ is a blurred, indistinct and variable barrier depending on all the circumstances of a particular relationship.”
The Lemon test has been criticized for its opacity and its malleability, but it remains in widespread use. “It’s still the leading establishment-clause case in the sense that every lower-court judge has to slog through it before deciding a case,” said Douglas Laycock, a law professor at the University of Virginia.
Alton Toussaint Lemon was born on Oct. 19, 1928, in McDonough, Ga., where his father owned a tailor shop. He received a degree in mathematics from Morehouse College in Atlanta in 1950.
In a 1992 interview with The Philadelphia Tribune, Mr. Lemon recalled playing basketball at Morehouse with the Rev. Dr. Martin Luther King Jr. “Before I married my wife, Martin used to say he would marry us for free someday,” Mr. Lemon said.
After service in the Army, Mr. Lemon settled in Philadelphia, earned a master’s degree in social work from the University of Pennsylvania, worked in a series of government jobs and was active in the N.A.A.C.P. and the American Civil Liberties Union. He was the first African-American president of the Ethical Humanist Society of Philadelphia, said Hugh Taft-Morales, its current leader.
Besides his daughter-in-law, Mr. Lemon is survived by his wife, Augusta; their son, Anthony; and two grandchildren, Ayanna and Athena.
Mr. Lemon was asked to join the suit challenging the Pennsylvania law after he criticized it at an A.C.L.U. meeting. The suit, conceived as a national test case, was filed in 1969 in federal court in Philadelphia by six religious, civil rights and educational groups along with Mr. Lemon and two other local taxpayers. The lawyers for the plaintiffs put Mr. Lemon’s name first in the caption of the case.
That was no accident, Professor Laycock said. The case was decided against the backdrop of resistance to the desegregation of public schools, and the choice of Mr. Lemon, who was black, underscored the point.
Mr. Lemon, for his part, said he was surprised to have lent his name to a leading piece of First Amendment jurisprudence. “I still don’t know why my name came out first on this case,” he told The Philadelphia Inquirer in 2003.
Many Supreme Court justices have criticized the Lemon test. In a 1993 concurrence, Justice Antonin Scalia wrote, “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our establishment clause jurisprudence once again, frightening the little children and school attorneys.”
The flexibility of the test probably explains its resiliency. In Supreme Court cases concerning aid to religious schools, for instance, Professor Laycock said, “They have completely reinterpreted it to do the opposite of what they did in 1971.”
Three decades after the decision, Mr. Lemon said he rued the hollowing out of his achievement. “Separation of church and state is gradually losing ground, I regret to say,”he told The Inquirer.
Mr. Lemon attended the Supreme Court argument in his case, but he found the experience a little alienating. “When your case gets to the Supreme Court, it’s a lawyer’s day in court,” he said. “It doesn’t matter to the justices if you are dead or alive.”