Halloween reminds me of the late Supreme Court Justice Antonin Scalia who said that the so-called “Lemon test” was like a “ghoul in a late-night horror movie.” Many Justices over the years tried to drive a pencil through the heart of the monster, but it just would not die!

But in our historic 9-0 win in Shurtleff v. City of Boston, Liberty Counsel has driven the final stake through the monster’s heart, killing the bigoted Lemon test once and for all with ALL 9 Supreme Court Justices in agreement!

Liberty Counsel’s groundbreaking legal work is restoring religious freedom to America and changing the legal landscape for good! YOU can be a part of the blessing. Give today and a special Challenge Grant will DOUBLE THE IMPACT of your donation. — Mat

Justice Scalia had a classic writing style. His poignant words in 2013 about the 1971 case of Lemon v. Kurtzman are memorable.

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. ...

“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.”

Since founding Liberty Counsel in 1989, one of our objectives was to overturn Lemon. That happened this year. The 51-year-old monster is dead!

The “Lemon test” arose from the Supreme Court’s 1971 decision in Lemon v. Kurtzman in which a liberal activist Court created a rule out of thin air to determine whether certain actions were violations of the First Amendment.

The Lemon test was used by the ACLU and activist courts as a wrecking ball against religious symbols, displays, words and speech. The test has led to inconsistent and contradictory decisions in cases similar to our Christian flag case and the Coach Kennedy case.

I have litigated against the Lemon test for more than three decades and have witnessed the unconstitutional, antireligious damage it caused.

In 1992, I wrote an amicus brief on the Lee v. Weisman case. A rabbi had been asked to deliver a nonsectarian graduation prayer. He took the podium thanking God for “the legacy of America where diversity is celebrated … ”

The rabbi continued, saying, “O God, we are grateful for the learning which we have celebrated on this joyous commencement … we give thanks to you, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion.”

The ACLU sued the school. Sadly, the politicalized Court of that time refused to strike down the Lemon test’s faulty reasoning. I must admit, I felt defeated for about two days. But that defeated spirit did not last. Instead, I worked harder and smarter to overturn the Lemon test.

Thirty years later, through God’s grace, Liberty Counsel drove the final stake through Lemon’s dark heart!

In our case, Shurtleff v. City of Boston, Liberty Counsel achieved a rare 9-0 victory at the Supreme Court. The High Court ruled 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.” Every Justice rejected Boston’s reliance on Lemon.

This was a major win for religious freedom and free speech. But even more important, this ruling killed the flawed “Lemon test” once and for all.

“It’s time to let Lemon lie in its grave,” Justice Neil Gorsuch wrote in the Shurtleff decision released on May 2, 2022.

In questioning how the City of Boston “got it so wrong,” Justice Gorsuch rightly attacked the Lemon test. Gorsuch wrote in his opinion:

“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.”

To illustrate his point more powerfully, Gorsuch continued: “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,” Gorsuch concluded.

It took three decades, but thanks to YOUR generous support, Liberty Counsel was able to kill the Ghoul for the last time!

Because we killed the Lemon test in Shurtleff and were cited in both the Dobbs ruling that overturned Roe v. Wade AND the Coach Kennedy case (the coach who prayed on the field after the game), we have changed the legal landscape in America for good!

ONLY YOUR HELP makes it possible for us to keep fighting for religious freedom. Liberty Counsel never charges our clients.

Instead, our clients rely on friends like you to provide the necessary funds for their defense. Please, take a moment to invest in our vital legal work. When you do, a special Challenge Grant will DOUBLE THE IMPACT.

Thank you in advance for your thoughtfulness and generosity!

Mat Staver
Founder and Chairman
Liberty Counsel

Sources:

Clark, R. Scott. “Scalia on the Lemon Test as Late-Night Ghoul.” The Heidelblog, November 30, 2013. Heidelblog.net/2013/11/scalia-on-the-lemon-test-as-late-night-ghoul/.

“Lamb's Chapel V. Center Moriches Union Free School District.” Legal Information Institute, 1993. Law.cornell.edu/supremecourt/text/508/384.

‌“SCOTUS Rules in Favor of Coach Kennedy.” Liberty Counsel, June 27, 2022. Lc.org/newsroom/details/062422-scotus-overturns-roe-v-wade.

Staver, Mathew, Anita Staver, Horatio Mihet, Roger Gannam, and Daniel Schmid. “Supreme Court of the United States on Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF of AMICUS CURIAE LIBERTY COUNSEL in SUPPORT of PETITIONER Counsel for Amicus.” March 1, 2022. Lc.org/PDFs/Attachments2PRsLAs/2022/030222KennedyAmicusBrief.pdf.