Red Flag June Continues As Lemon Is Finally Interred

We are in the midst of Red Flag June. On three consecutive session days, the Court has reversed old doctrine–and in the process, placed red precedential flags on many decisions. On Thursday, Bruen red-flagged dozens circuit decisions that followed the two-step approach for Second Amendment cases. On Friday, Bruen red-flagged RoeCasey, and countless other abortion cases. And today, Monday, Kennedy v. Beremerton School District red-flagged Lemon v. Kurtzman, and decades of precedents that relied on the infamous test.

Justice Gorsuch’s majority opinion does not overrule Lemon in so many words, but the import of the ruling is clear–follow Town of Greece, not Lemon.

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. American Legion; see also Town of Greece v. Galloway (2014) . . . 

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “‘reference to historical practices and understandings.'” Town of Greece.

Justice Sotomayor’s dissent states the issue directly:

Today’s decision goes beyond merely misreading the record. The Court overrules Lemon v. Kurtzman, 403 U. S. 602 (1971), and calls into question decades of subsequent precedents that it deems “offshoot[s]” of that decision.

Finally, at long lost, Lemon has been interred. It is fitting to quote from Justice Scalia’s Lamb’s Chapel concurrence:

As to the Court’s invocation of the Lemon test: 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. See, e.g.Lynch v. Donnelly (1984). When we wish to strike down a practice it forbids, we invoke it, see, e. g.Aguilar v. Felton, (1985); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers (1983). Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts,” Hunt v. McNair (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

Justice Gorsuch has stabbed the final pencil into the Lemon Test.

I have to imagine Justice Scalia is smiling from up high.

Josh Blackman

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