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Supreme Court Makes Lemonade

There’s an old saying among lawyers, that when you discover your case is a lemon, you make lemonade. The Supreme Court this term made a different type of lemonade when it crushed and discarded the precedent of a 1971 case, Lemon v. Kurtzman. To be fair, Lemon had been abused and neglected for many years, but finally, in the case of a high school football coach praying very publicly on the fifty yard line after football games, the Supreme Court specifically pummeled what has come to be known as the Lemon test, and threw it on the refuse heap of history.

What is the Lemon test, and why should you care? The Lemon test was developed following a series of Supreme Court decisions interpreting the First Amendment’s prohibition on religious establishments. Summarizing the lessons of a series of prior decisions, the Supreme Court determined that government laws and policies must satisfy a three part test in order to remain clear of Establishment Clause concerns. First, the law must have a primarily secular purpose; it must have a primarily secular effect, and it must not unduly entangle church and state.

These provisions seem eminently reasonable. After all, if the Supreme Court really does care about what our founding fathers thought, they were quite clear that government had no business meddling in the business of religion. James Madison expressed it as a first principle: “that Religion is wholly exempt” from the “cognizance” of Civil Society, i.e., from government. So it seems axiomatic that government must act for secular purposes, and to achieve secular, not religious results. And surely the libertarian leaning American right does not want more regulatory entanglement between the state and the church, so the non-entanglement provision would seem to enjoy broad support.

Why, then, has Lemon come under withering attack leading to its eventual rejection outright?

A possible answer came to light in a webinar discussion recently produced by the American Bar Association’s Religious Liberty Committee, which I serve as co chair. One of our panelists spoke of the Lemon test as an obstacle to “principled pluralism” as found in various forms of public religious expression, such as a massive cross in the middle of a major Maryland intersection. Such “principled pluralism” is best protected by recognizing the nation’s history and tradition of public respect for religion, he contended. Another panelist countered that such “principled pluralism” was not pluralism at all, but simply the establishment of the majority religion, at the expense of religious minorities.

The Supreme Court didn’t stop with its rejection of Lemon, but continued by disavowing Justice Sandra Day O’Connor’s addition to Lemon that public employees’ religious expressions should not convey the impression of government endorsement of religion – that the government must remain neutral as between religion and non religion, and also neutral among religions. If the government is no longer constrained by the desire to remain neutral toward religion, and not to appear to endorse religion, what comes next?

The Supreme Court also refused to recognize the inherently coercive nature of a high school coach’s invitation to players to pray, as though high schoolers are sufficiently mature to simply say “no thank you” to an authority figure with power over their time on the playing field, or college recommendations. The Supreme Court retained a form of respect for a non-coercion test, but did not inspire confidence that it was capable of recognizing religious coercion.

In a post Lemon legal world, one may well ask what remains of the Establishment Clause? Where are we if the government may legitimately act for religious purposes, to accomplish religious goals, unbothered by whether such actions unduly entangle church and

state? Where indeed? Don’t trip on that pile of rubble that used to the Wall of Separation between church and state while you are fleeing the oppression of the religious majority.