Supreme Court Justice Neil Gorsuch has twice chided government entities in the span of a week for following an oft-criticized ruling intended to ferret out excessive entanglement with religion. The so-called Lemon test remains on the books, even as the justices act as if it is no longer good law.
“This Court long ago interred Lemon, and it is past time for local officials and lower courts to let it lie,” Gorsuch said in a May 2 concurring opinion, referring to the court’s 1971 ruling in Lemon v. Kurtzman, which created a test for evaluating Establishment Clause cases.
The Lemon test “has been effectively dead for many years in the Supreme Court,” but never formally overruled since a majority of justices who think it’s no longer good law likely can’t agree on what should replace it, said University of Virginia law professor Douglas Laycock.
Inaction leaves lower courts and local governments in a bind.
In Shurtleff v. Boston, Gorsuch on May 2 faulted city officials for pointing to Lemon for its decision prohibiting a Christian group from flying a flag over City Hall. A unanimous Supreme Court said that was religious discrimination.
“Boston’s travails supply a cautionary tale for other localities and lower courts,” Gorsuch said of the city’s decision to follow Lemon despite the court’s earlier warnings.
At argument in Kennedy v. Bremerton School District on April 25, Gorsuch questioned a public school district on why it, too, relied on Lemon when forbidding a football coach from praying at midfield after games.
The Lemon test was an attempt to create a one-stop-shop for Establishment Clause cases, in which the government is accused of unlawfully preferring one religion over another. It laid out a three-pronged test that generally asks whether a “reasonable observer” would consider the government’s actions an endorsement of a particular religion.
The test has been sharply criticized, starting almost immediately after it was handed down
Lemon has been “nipped, tucked, and hacked” from the beginning, said Andrew Seidel of Americans United for the Separation of Church and State, adding that it was largely due to a dramatic change in the court’s membership.
By 1984, Justice Sandra Day O’Connor had already tweaked the test to make it easier to apply.
More recently, the court’s 2019 ruling allowing the display of a Latin cross World War I memorial in Maryland is a good example of the treatment Lemon has received from the justices.
The case, American Legion v. American Humanist Assn. produced a fractured 7-2 majority, in which five of the justices wrote separately to discuss Lemon‘s fate.
Justice Brett Kavanaugh said the court’s “decisions over the span of several decades demonstrate that the Lemon test is not good law” and hasn’t been applied in decades.
Justice Elena Kagan, at the other end of the ideological spectrum, said the test was still useful but warned about a “rigid application” of it.
Only Justice Clarence Thomas called for the Lemon test to be overturned. “It is our job to say what the law is, and because the Lemon test is not good law, we ought to say so,” Thomas said.
Sidel said the court hasn’t gone that far because “no one has anything better to offer.”
In Gorsuch’s latest Lemon attack, he suggested that the proper test was one that looked to history and tradition surrounding government engagement with religion.
By looking to the past, the history test is retrogressive, Sidel said. Moreover, it is based on facts that no longer remain true, Laycock said.
Gorsuch’s opinion suggests that so long as it was fine at the time of the founding, the government can do it today, Laycock said. But the makeup of the population at the time of the founding—about 99% Protestant—is quite different from the American population today, which is just over 60% Christian, he said.
So while “government promoting Christian teachings and engaging in Christian prayers and rituals” wasn’t significantly divisive in 1787, it “is deeply divisive today,” Laycock said.
And so, as Justice Antonin Scalia wrote in 1993, Lemon remains on the books like “some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad,” despite “being repeatedly killed and buried.”