SCOTUS Finally Buried the “Ghoul” Six Feet Under

Oct 31, 2022

In two cases decided by the U.S. Supreme Court on May 2 and June 27, the U.S. Supreme Court finally buried a terrible 51-year-old case that caused confusion and significant damage to the First Amendment Free Speech, Free Exercise, and Establishment Clauses. Justice Antonin Scalia described the so-called “Lemon Test” (named after the case) as a “ghoul in a late-night horror movie.”

The “Lemon Test” comes from the 1971 case, Lemon v. Kurtzman. The “Lemon Test” grew out of this case and became a judicial wrecking ball used to censor religious speech, symbols, and displays.   

In Lamb’s Chapel v. Center Moriches Union Free School District, Justice Antonin Scalia criticized the “Lemon Test” and described it as follows: 

“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, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed test but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so. The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.” 

On May 2, 2022, the Supreme Court signaled the death of the “Lemon Test” in Liberty Counsel’s case, Shurtleff v. City of Boston. The Justices ruled 9-0 that the City of Boston violated the Constitution by censoring a private flag in a public forum open to “all applicants” merely because the application referred to it as a “Christian flag.” The High Court rejected Boston’s argument that the city was justified in censoring religious viewpoints under the “Lemon Test.” 

Justice Gorsuch, joined in a concurrence with Justice Thomas, stated, “It’s time to let Lemon lie in its grave.” 

Justice Gorsuch continued, “How did the city get it so wrong? To be fair, at least some of the blame belongs here and traces back to Lemon v. Kurtzman, 403 U. S. 602 (1971). Issued during a ‘bygone era’ when this Court took a more freewheeling approach to interpreting legal texts, Food Marketing Institute v. Argus Leader Media, 588 U. S. ___, ___ (2019) (slip op., at 8), Lemon sought to devise a one-size-fits-all test for resolving Establishment Clause disputes. That project bypassed any inquiry into the Clause’s original meaning. It ignored longstanding precedents. And instead of bringing clarity to the area, Lemon produced only chaos. In time, this Court came to recognize these problems, abandoned Lemon, and returned to a more humble jurisprudence centered on the Constitution’s original meaning. Yet in this case, the city chose to follow Lemon anyway. It proved a costly decision, and Boston’s travails supply a cautionary tale for other localities and lower courts. The only sure thing Lemon yielded was new business for lawyers and judges.”

“Ultimately, Lemon devolved into a kind of children’s game. Start with a Christmas scene, a menorah, or a flag. Then pick your own ‘reasonable observer’ avatar. In this game, the avatar’s default settings are lazy, uninformed about history, and not particularly inclined to legal research. His default mood is irritable. To play, expose your avatar to the display and ask for his reaction. How does he feel about it? Mind you: Don’t ask him whether the proposed display actually amounts to an establishment of religion. Just ask him if he feels it ‘endorses’ religion. If so, game over,” wrote Gorsuch. 

On June 27, 2022, the Supreme Court, citing to the Shurtleff case, ruled 6-3 in Kennedy v. Bremerton School District in favor of a high school football coach who was fired for silently praying on the field after games. Relying on both the First Amendment Free Speech and Free Exercise Clauses, the High Court ruled that the Bremerton School District violated both provisions when it fired Coach Joe Kennedy for having prayer on the 50-yard line of the football field after the game. In addition, the High Court also finally buried the “Lemon Test,” citing Liberty Counsel’s 9-0 decision handed down on May 2, 2022, in Shurtleff v. City of Boston involving the Christian flag. 

The Shurtleff case set up the decision on the Coach Kennedy case authored by Justice Gorsuch. In Shurtleff, Boston relied upon the 1971 case of Lemon v. Kurtzman to argue that the Establishment Clause required the city to censor religious viewpoints. Like Boston, the Bremerton School District also relied on the so-called “Lemon Test” to argue it must censor the silent prayer of Coach Kennedy. In Shurtleff, the same flag could have flown IF Hal Shurtleff viewed it as secular. If he had referred to it as the Camp Constitution flag and not a Christian flag, Boston would have approved the application. In the Coach Kennedy case, IF Kennedy took a knee after to ponder secular thoughts, then his action would be permitted. But if his intention was a silent prayer, the district banned him. 

In the Kennedy case the High Court wrote, “What the District and the Ninth Circuit overlooked, however, is that the ‘shortcomings’ associated with this ‘ambitiou[s],’ abstract, and ahistorical approach to the Establishment Clause became so “apparent” that this Court long ago abandoned Lemon and its endorsement test offshoot.” 

The Supreme Court also wrote it “long ago abandoned Lemon [v. Kurtzman, about whether the establishment clause has been violated], and its endorsement test offshoot.” Instead of Lemon, the Court says, the Supreme Court “has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” 

Throughout the years, the “Lemon Test” has proven to be unworkable and has led to inconsistent and contradictory decisions on the constitutionality of 10 Commandment monuments and cross monuments like the “Peace Cross.” 

In February 2005, Liberty Counsel argued before the High Court in the Kentucky Ten Commandments case known as McCreary County v. ACLU of Kentucky, regarding constitutionality of the Ten Commandments display. Liberty Counsel also urged the Justices to abandon the “Lemon Test” and suggested that the Court create a new test for governmental acknowledgments of religion, such as the Ten Commandments, Nativity scenes, the Pledge, the National Motto, and every other such acknowledgment of religion. While the Supreme Court agreed to consider overruling Lemon, it chose not to do so. Instead, the Court further illustrated that Lemon was unworkable by using the Lemon test on the Kentucky Ten Commandments case but not using it in the Texas Ten Commandments case, both of which were argued and decided the same day. 

On February 2, 2021, the Seventh Circuit Court of Appeals ruled in favor of a Nativity scene displayed annually at the Jackson County Courthouse, it was the first time that a court ruled that the “Lemon Test” does not apply to these holiday symbols. Liberty Counsel represented Jackson County in this precedent-setting case, Woodring v. Jackson County, Indiana. 

Applying a historical test, the Seventh Circuit ruled that the Nativity scene as part of the larger holiday display is constitutional. In doing so, the Woodring decision expressly parted from applying two of its prior opinions, stating: “Because we decline to follow our circuit precedent on similar Nativity scenes,” the option was circulated to “all judges in active service” to determine the interest in rehearing the case en banc. 

The Seventh Circuit specifically noted that the Supreme Court in the American Legion case expressly disregarded the “Lemon Test” in religious display cases where the display was “longstanding” and “established.” In the case of the Peace Cross, it was erected in 1925, nearly a century before it was challenged. The Woodring court noted that the Jackson County Nativity was in place for 15 years. Without clear guidance on what constitutes “longstanding” or “established,” the Woodring court was not able to conclude this shorter time frame met that standard. However, the Court went on to state that Lemon no longer applies to Nativity scene cases and a historical test should now be applied. 

On June 20, 2019, the Supreme Court ruled that the Bladensburg Peace Cross, a 40-foot cross honoring those who died during World War I, will remain standing.  Though the High Court ruled in favor of the “Peace Cross,” it sidestepped the opportunity to overrule Lemon v. Kurtzman. 

Liberty Counsel’s Founder and Chairman Mat Staver said, “After decades of distorting the First Amendment and haunting government officials, the ‘Lemon ghoul’ is finally buried forever. Lemon has proven to be unworkable and has led to inconsistent and contradictory decisions on the constitutionality of religious displays, symbols, and words. Justice Scalia would be happy to see that the ‘Lemon Test’ is finally dead. Religious freedom and free speech lives.” 

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