The “catch-22 “ in the Lemon Test was pointed out by Justice Sandra Day O’Connor in her dissenting opinion in a 1985 case. In that case, teachers paid with taxpayer money were being sent into religious schools (as well as public schools) to give remedial instruction to students from poor neighborhoods. This program was found to have failed the Lemon Test and, therefore, to be in violation of the Establishment Clause. O’Connor dissented.
She said that the second prong of the Lemon Test required that the teachers not teach any religious content. This is because that prong says that the government’s action must not primarily advance or inhibit religion. Therefore, the government would have to monitor the teachers to be sure that they were teaching only secular subjects. O’Connor then pointed out that this government action would fail the third prong of the test. That prong prohibits “excessive government entanglement” with religion. The government would be too closely involved in the school’s curriculum and daily operations and would therefore violate the third prong. This meant that the government had to violate the third prong of the test in order to comply with the second prong. This was a catch-22.