Saturday, January 15, 2005

Stuck With A Lemon

“[L]ike 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.”- Justice Scalia, concurring in Lamb’s Chapel v. Center Moriches Union Free School District 508 U.S. 384, (1993)

You know that scene in Jerry Maguire which includes the famous “You had me at hello” line? I kind of felt the same way reading this sentence in mouldfan’s post:
The judge relied, as he properly should have, on the Supreme Court’s 1971 opinion in Lemon v. Kurtzman, 403 U.S. 602 (1971).
Ah, mouldfan, you had me here, if by had me you mean “spurred me to write a ridiculously long post on an absolutely contemptuous Supreme Court precedent.”

Let’s try to phrase this sentence a few different ways:

The judge relied, as he properly should have, on the Supreme Court’s 1857 opinion in Dred Scot v. Sanford, 60 U.S. 393 (1857)

The judge relied, as he properly should have, on the Supreme Court’s 1971 opinion in Roe v. Wade, 410 U.S. 173 (1971)

The judge relied, as he properly should have, on the Supreme Court’s 1896 opinion in Plessy v. Ferguson, 163 U.S. 537 (1896)

Now that we have gotten that out of the way, I suppose you will say I am overreacting. The tihing is, the previous cases mentioned are grounded in as much legitimate constitutional law as Lemon v. Kurtzman.

My problem with this decision is that it relies primarily on this arbitrary, non-sensical and non-Constitutional precedent. Unfortunately the Supreme Court has contributed to this by allowing the Lemon Standard to stand for all these years. The quote at the top of the page was taken from Scalia in a case which the Court unanimously upheld the constitutionality of the use of public facilities by community groups for religious purposes. Justice White delivered the opinion of the Court, declaring that the showing of a religious film on school property did not violate the Establishment Clause because it was not shown during school hours, nor was it sponsored by the school, viewing was open to the general public, and there was no danger that the community would conclude that government had endorsed religion by the film’s showing. White also quickly noted, in one sentence, that the case passed all three prongs of the Lemon test.

Justice Scalia, though he agreed with the Court’s ruling, questioned the propriety of even mentioning the test at this point. Scalia thought that Lemon had been buried in Lee v. Weisman. It seemed that the only reason the Court retained the test was because it was too easy to kill, but it can return to scare us when we summon it, “but we can command it to return to the tomb at will.”

Scalia’s point was that the Lemon test had ceased to be a true guide in Supreme Court jurisprudence, and its continued existence did nothing to further the process. And here lies the primary problem with the Court’s refusal to overturn Lemon. Though the Court may ignore its own precedents whenever it so chooses, the lower courts lack such discretion. The lower courts are thus beholden to a standard a majority of the Court no longer seems to support.

There is a greater problem with the subjectivity of the test. Kenneth Ripple has attacked this aspect of the test, especially the entanglement prong (Kenneth Ripple, “The Entanglement Test of the Religion Clauses – A Ten Year Assessment,” in UCLA Law Review. Vol. 27, No. 6, August, 1980. 1216). Clearly there will always be some level of subjectivity in court decisions, but the degree of subjectivity with the entanglement test is far greater than usual. Ripple also questions the appropriateness of such a test, for he makes the argument that later opportunities for new approaches are lost with a fixed test. The Court has a tendency to blindly apply the holding of one case to another without a clear understanding in the change in context or circumstances. Both criticisms seem fair. It is bad enough to develop a test that is applied without question in all cases, but it is even worse to apply a test that is as vague as the “Lemon test.” Some middle ground between a fixed and subjective standard does seem appropriate.

Michael McConnell, extremely critical of strict separation in the first place, has said that “the result of these three ambiguous principles is a jurisprudence of confusion and inconsistency – with a heavy dose of hostility to religion thrown in.”( Michael McConnell, “Stuck With a Lemon,” in American Bar Association Journal. Vol. 83, February, 1997, p 47). Emerging out of the Lemon case is a confusing standard. For example, the Court has ruled that it is constitutional for religious colleges to receive grants, but not so for high schools. Also, bus transportation to parochial schools is subsidized, but not bus rides for those same students while they go on a field trip.(Ibid.)

There are too many problems with the Lemon standard for it to remain a fixed precedent to determine Establishment Clause cases. For example, the “legislative purpose” is vague, and it is difficult to ascertain what the legislative purpose of any legislation might be. One would have to be a mind reader to know the real purposes behind any piece of legislation, unless of course a legislator admits that the purpose of the law is religious in nature – as would be the case in Wallace v. Jaffree, 472 U.S. 38 (1985). Also, the third prong – “excessive entanglement” – collides with the second – principal effect. In order to ensure that a statute does not have the affect of establishing religion government entanglement becomes required. And without government entanglement by way of surveillance, how is one to know if a statute’s affect is neutral towards religion? This third criticism is perhaps most damning for the “Lemon test.” In a way the Court set up an unworkable system, creating requirements that worked against one another. It is as though the Court intentionally created a test whereby no statute could ever pass constitutional muster.

That said, there may indeed be problems with the silly sticker placed on textbooks in Cobb County, Georgia. But are they constitutional problems? Putting aside the arbitrary Lemon standard for a moment, does this truly amount to or touch upon an establishment of religion in any way? We can probably have a greater debate on that very issue, but there are times when we treat the clause in a manner that even the most liberal Founders as regards religion – Jefferson and Madison – would have trouble accepting. We have gone from using the First Amendment as a safeguard to protect religious freedom to a method whereby we restrict even the slightest hint of religiosity in the public square. The first thing to do to reverse this course would be to strike down Lemon.


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