During yesterday’s oral argument in the Bladensburg Cross case, the justices were obviously grappling to find a way to resolve the thorny issues it presents. The government owns, displays and maintains a 40-foot-tall cross on public property. That seems like a clear violation of church-state separation, so what’s the problem?
To the extent that there is a problem, it’s largely one of the justices’ own making.
I don’t want to get all legalistic on everyone, but to understand the problem, it’s helpful to know a little about how the Supreme Court operates. The court often seeks to settle issues through the use of tests – a standard that can be applied in similar cases to ensure that there will be at least some degree of uniformity among decisions.
In 1971, the Supreme Court formally adopted a three-part test for deciding church-state cases, though earlier cases had applied similar analyses. Known as the Lemon Test after the case that described it, Lemon v. Kurtzman, the test holds that church-state separation is violated if any one of three conditions are present:
* The governmental action has a predominantly religious purpose.
* The government action has a primary effect of advancing or inhibiting religion.
* The governmental action fosters excessive entanglement between religion and government.
It’s a good test – but it has been irregularly applied. In 1983, a case reached the high court challenging a taxpayer-funded chaplain whose job was to recite prayers in the Nebraska legislature. That would seem to be a clear violation of all three prongs of the Lemon Test, but a majority of justices didn’t want to make the tough call that was required, so they put the test aside and said legislative chaplains are permissible because there’s a long and unbroken history of them in Congress going back all the way to the adoption of the Bill of Rights.
Later, as the court grew more conservative, the Lemon Test was sometimes ignored. Justice Sandra Day O’Connor refined the Lemon test through an “Endorsement Test” that asks whether governmental conducts endorses religion, and a majority of the Court adopted this test, but conservative justices attacked it because they thought that it made it too easy to show a church-state violation.
Lower federal courts still regularly cite the Lemon Test and apply it, but a Supreme Court majority has not done so for a while. The last time I can recall the Lemon Test being applied by a majority of the high court was in a 2005 case called McCreary County v. American Civil Liberties Union of Kentucky – yet it has never been officially overturned.
During yesterday’s argument, Justice Neil Gorsuch more or less called for ditching the Lemon Test once and for all. He got some support from Chief Justice John G. Roberts, who bemoaned the “confusion” lower courts must deal with as they decide how, if and when to apply the Lemon Test.
Maybe there is some confusion out there, but I’d submit the Supreme Court is responsible for it. Lemon is a good test that ensures there will be a decent distance between church and state. If it were applied consistently, it would be an important tool to protect everyone as our country’s pluralism expands.
The Lemon Test has served the country well and should not be so blithely tossed aside. Rather than criticize the test, perhaps the justices should face up to what they’ve done, accept that they are to blame for the confusion and make amends.
A good place to start would be by calling the Lemon Test home and welcoming it back into an honored place in American jurisprudence.
Photo: Fred Schilling, Collection of the Supreme Court of the United States