What Happened When DOGS Tasted Lemon: Australian Reflections on the Contemporary Relevance of Chief Justice Burger’s Opinion in Lemon v. Kurtzman

Abstract

This article offers Australian reflections on the fiftieth anniversary of Chief Justice Warren E. Burger’s opinion in Lemon v. Kurtzman, demonstrating that while its relevance in the United States may be waning, its legacy lives on in Australia. Parts of the Australian Constitution were expressly modelled by its framers on the United States Constitution; most notably, the religion clauses are almost identical to those found in Article VI, Clause 3, and in the First Amendment. Throughout Australia’s federal history, its final appellate court, the High Court, has grappled with the extent to which it can rely upon American constitutional experience in interpreting the Constitution. A 1981 challenge to government funding for non-government religious schools brought by the Australian Council for the Defence of Government Schools (often referred to by its acronym, “DOGS”) raised that question in relation to the Australian establishment clause. In resolving the challenge, in what has ever after been known in Australia as the DOGS Case, the High Court considered Lemon, and the three-prong test enunciated by Chief Justice Burger for use in determining the extent to which government may constitutionally engage with religion pursuant to the First Amendment. The article presents an exploration of and reflection on the Australian legacy of Lemon, and its author, Chief Justice Burger. The legacy runs both ways—of Lemon for DOGS and Australia, and, perhaps surprisingly and a bit presumptuously, of DOGS for Lemon and the United States. On the fiftieth anniversary of Lemon, and the fortieth of DOGS, the article responds to the question: What happened when DOGS tasted Lemon?