More on Establishment, Public Reason, and the Lemon Test

The three-pronged Lemon test, first used in Lemon v. Kurtzman to overturn state laws funding the teaching of secular subjects at parochial schools, states that a law is one respecting an establishment of religion, and therefore unconstitutional, unless it

• has a secular legislative purpose;
• does not have the primary effect of either advancing or inhibiting religion; and
• does not result in an excessive entanglement with religion.

Conservatives don't like this test, and have basically managed to persuade the Court to abandon it, though never declaring that Lemon has been overturned. One thing to note about this test is that the first part, requiring secular legislative purpose, is awfully similar to Rawls' idea of public reason. You can enact a statute with a religious motive, according to this test, so long as you can also justify it using public reason alone. (Of course you still might fail the latter two prongs.) I like this requirement very much, for the following reason. Suppose the state enacts a law that could not possibly be defended under public reason, a law which could not possibly have been introduced in the legislature, in good faith, by someone lacking in any comprehensive doctrine and knowing only the public reason. What does this mean?

It clearly means that the state is not using public reason! Instead we can see that the state's internal motivation for its action must be derived from some comprehensive doctrine, or some class of such doctrines. And this means that the state itself has subscribed to a comprehensive doctrine, or some class thereof. But what on earth is an establishment of religion if not the state's subscribing to a particular religious doctrine, or a particular class of religious doctrines? Suppose that New Jersey passed a law saying "The State of New Jersey believes in the divinity of Jesus Christ." This would be plainly unconstitutional, right? Even if it doesn't have any tangible effect on anyone directly, this is an establishment of religion. But when the state passes a law that one cannot possible support without believing in the divinity of Jesus Christ, that law contains, implicitly, the above statement. It is therefore just as unconstitutional, every bit as much an establishment of religion. One can broaden the statement, perhaps maximally to "the State of New Jersey believes in God." That's invalid, therefore anything which could not be supported without that belief is invalid. Prayer to open legislative sessions, or court sessions, or whatever: invalid. "In God We Trust" on the money: invalid. "Under God" in the Pledge of Allegiance: invalid. All of these things declare that the government, not just the people, believes in god. And the government is not allowed to believe in god, even if every single one of its officials does.