Goodbye to the Ghoul?

A regime that for six decades has banished prayer from public schools appears likely to give way to one less scared of the sacred.   

Chief Justice Burger in 1971. Wikimedia Commons

An unsatisfactory era of constitutional haunting could be approaching its judicial exorcism. We refer to the era of the Lemon test, a framework devised by the Supreme Court to use in deciding religious freedom cases. The Great Scalia likened this monster to “a ghoul in a late-night horror movie” that creates “the strange Establishment Clause geometry of crooked lines and wavering shapes.”      

Hopes that the ghoul might be trapped are conjured via tough questioning from the justices of the Supreme Court in the case of Kennedy v. Bremerton School District. It turns, as these pages have noted, on a public school coach who sought to pray on the field following his team’s football games. A regime that for six decades has banished prayer from public schools appears likely to give way to one less scared of the sacred.   

For just over a half century, the high court has evaluated cases like these that concern the Establishment Clause — which reads “Congress shall make no law respecting an establishment of religion” —  through the lens of the Lemon test. It holds that to be kosher the legislation in question must have a secular purpose, neither advance nor inhibit religion, and avoid “excessive entanglement” with religion.  

Rather than use their seichel and sensibility, the Lemon test, penned by Chief Justice Burger, imposed a formula that manages to be both too formulaic and not rigorous enough.  Justice Scalia insisted that it “stalks our Establishment Clause jurisprudence.” Another skeptic, Justice Clarence Thomas, denounces it as “not good law” and has urged its toppling. Justice Neil Gorsuch terms it a “misadventure.”

In oral arguments heard yesterday in the Kennedy case, the coach’s lawyer, Paul Clement, a titanic litigator before the Nine, labeled the Lemon test a “stubborn fruit” that requires being “sliced” in half to make sure that its baleful influence is halted. In response, the retiring justice, Stephen Breyer, shying from revolution in his final days on the bench, asked “is Lemon in this case? I mean do we have to decide Lemon?”

In our view, no justice has to do anything. What they face is an opportunity to open an era of comity. If, as Justice Gorsuch observed, the Lemon test is more honored in the breach than the observance — “we haven’t applied it in, I don’t know, 20 or 30, 21 years?” — well, that is the nature of ghouls and the undead, treading in the constitutional places between the living and expired, and casting a pall over both.

In Kennedy, the school sought to rely on yet another constitutional exam, the “endorsement test.” A brainchild of Justice Sandra Day O’Connor, this is related to the Lemon test. It asks whether “a reasonable, informed observer” would perceive an endorsement or disapproval of religion. Bremerton school argued that the coach’s prayer involved endorsement and coercion. Mr. Clement insisted it was private speech.  

Mr. Clement invited the court to overrule “Lemon and the endorsement tests that come from that,” arguing that such a step would be “very helpful” in dissipating the confusion that surrounds the Establishment Clause like a dense fog. Instead, he would have the court look only at whether the government, like theocracies and godless republics of old, is engaged in coercion or discrimination regarding religion.

Justice Scalia reckoned that “the secret of the Lemon test’s survival” is that “it is so easy to kill.” Even as the test is used and misused, he observed that “we can command it to return to the tomb at will.” The Lemon test was summoned to help the court muddle through decisions with the clarity of a toddler’s zig-zagging crayon. The justices have a chance to ditch the lemon and get to brewing legal lemonade.       


The New York Sun

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