By William C. Duncan and Ryan Neuhaus
March 21, 2019
Originally published in Newsmax.
Observers are predicting the Peace Cross at the World War I Memorial in Bladensburg, Maryland, will be allowed to stay, based on oral arguments recently held before the U.S. Supreme Court. Advocacy groups had asked the federal courts to rule that the memorial violated the First Amendment, which forbids government “establishment of religion.”
In this case, behind the basic question of whether the memorial will be “bulldozed” (as the Humanist attorney put it), is a more consequential question about how the court will treat cases that claim government actions improperly establish religion.
During the oral argument, Justice Neil Gorsuch asked the attorney for the Humanist Association, “Is it time for this Court to thank Lemon for its services and send it on its way?” What did he mean?
He was referring to a 1971 Supreme Court decision in Lemon v. Kurtzman. In that case, involving public funding of religious education, the court said that to determine when a law or government policy is suspected of establishing religion, it would use a nebulous “test” to decide if the charge is accurate. This “Lemon test” consists of three questions: Is the law or policy secular in purpose? Does it advance or inhibit religion? And does it foster excessive government entanglement with religion? If the law or policy fails one of those three questions it will be found unconstitutional, deemed as an establishment of religion.
Since the initial decision, the Lemon test has been used so selectively that the judiciary has resorted to deeming it as unbinding when it does not ignore it altogether (see Zelman v. Simmons–Harris, Good News Club v. Milford Central School, and Marsh v. Chambers).
Members of the Supreme Court have gone so far as to label the Lemon test as “unworkable,” “flawed in its fundamentals,” and “inconsistent with our history and our precedents.” These labels have led lower federal courts to be confused, considering themselves in “Establishment Clause purgatory,” not knowing when it is appropriate to use the Lemon test. It is, however, still on the books.
The Lemon test is not the only option.
Another possibility, a coercion test, focuses on whether the law or policy coerces unwilling people to participate in religious practice: It assesses whether the government action, or religious symbol in this case, favors one, or many, religion(s) over another, or coerces an individual or community to support or participate in a religion against their will. This test would settle many cases like the Bladensburg cross controversy without embroiling the court in decorating decisions, like whether a menorah can be displayed outside city hall.
One drawback of the test is that the primary example of an establishment of religion — the designation of an actual state church — could be done without coercion (for instance, if tax money is not used to support the designated church). With this caveat, a coercion test would be closer to what the Framers primarily had in mind — government giving “churches financial aid to which other comparable secular organizations are not eligible.”
As the late Justice Antonin Scalia said, the Lemon test “stalks our Establishment Clause jurisprudence” 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.”
It is time for this ghoul to be buried for good.
The real significance of the argument over the memorial cross in Maryland goes far beyond that particular monument. As most of the justices appear to recognize, that memorial is not prohibited by the Constitution. This case, however, provides a chance for the court to jettison the confusing Lemon test, substituting it with the original intent of the Framers. Doing so will limit unnecessary micromanaging of public spaces while still preventing the government from coercing people to act contrary to their beliefs.
Ryan Neuhaus is a policy intern at Sutherland Institute.
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