The Lemon Test Strikes Again!

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Senior Federal District Judge Ronald Lagueux, a 1986 Reagan appointee, has ordered the Cranston High School in Cranston, Rhode Island to remove a mural, pictured above, depicting a school prayer.  The mural had been in the school since 1963.  The suit, as is usual in these modern iconoclastic cases, was brought by the American Civil Liberties Union on behalf of an atheist student and her father, Mark Ahlquist.  Jessica Ahlquist, the 16 year old atheist who brought the suit, has become an atheist celeb on atheist sites on the internet.  She doesn’t think much of the Catholic Church, is indeed a fallen away Catholic, and Cranston is 90% Catholic, so this suit was her way, actually I suspect more her father’s way, to poke a stick in the eye of local Catholics.  Go here to read the opinion.  Judge Lagueux’s decision is notable for its overall reliance on the Lemon test, and I will leave to Justice Scalia below to set forth my views of that court created doctrine.

In few areas of the law has the Constitution been more twisted and deformed than in the area of First Amendment allowance of religious expression in schools.  Justice Scalia gave a useful summary in 1993 in the Lamb’s Chapel v. Moriches Union Free School District case:

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 thelittle 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, 505 U. S. —-, —- (1992) (slip op., at 7), 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. See, e. g., Weisman, supra, at —- (slip op., at 14) (Scalia, J., joined by, inter alios, Thomas, J., dissenting); Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 655-657 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part); Corporation of Presiding Bishop of Church of Jesus Christ of Latter day Saints v. Amos, 483 U.S. 327, 346-349 (1987) (O’Connor, J., concurring); Wallace v. Jaffree, 472 U.S. 38, 107-113 (1985) (Rehnquist, J., dissenting); id., at 90-91 (White, J., dissenting); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 400 (1985) (White, J., dissenting); Widmar v. Vincent, 454 U.S. 263, 282 (1981) (White, J., dissenting); New York v. Cathedral Academy, 434 U.S. 125, 134-135 (1977) (White, J., dissenting); Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 768 (1976) (White, J., concurring in judgment); Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 820 (1973) (White, J., dissenting).

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, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e. g., Aguilar v. Felton, 473 U.S. 402 (1985) (striking downstate remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts,” Hunt v. McNair, 413 U.S. 734, 741 (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.

For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced. See, e. g., Choper, The Establishment Clause and Aid to Parochial Schools–An Update, 75 Cal. L. Rev. 5 (1987); Marshall, “We Know It When We See It”: The Supreme Court and Establishment, 59 S. Cal. L. Rev. 495 (1986); McConnell, Accommodation of Religion, 1985 S. Ct. Rev. 1; Kurland, The Religion Clauses and the Burger Court, 34 Cath. U. L. Rev. 1 (1984); R. Cord, Separation of Church and State (1982); Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. Pitt. L. Rev. 673 (1980). I will decline to applyLemon–whether it validates or invalidates the government action in question–and therefore cannot join the opinion of the Court today. [n.*]

I cannot join for yet another reason: the Court’s statement that the proposed use of the school’s facilities is constitutional because (among other things) it would not signal endorsement of religion in general. Ante, at 10. What a strange notion, that a Constitution which itself gives “religion in general” preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general. The Attorney General of New York not only agrees with that strange notion, he has an explanation for it: “Religious advocacy,” he writes, “serves the community only in the eyes of its adherents and yields a benefit only to those who already believe.” Brief for Respondent Attorney General 24. That was not the view of those who adopted our Constitution, who believed that the public virtues inculcated by religion are a public good. It suffices to point out that during the summer of 1789, when it was in the process of drafting the First Amendment, Congress enacted the famous Northwest Territory Ordinance of 1789, Article III of which provides, “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” 1 Stat. 52 (emphasis added). Unsurprisingly, then, indifference to “religion in general” is not what our cases, both old and recent, demand. See, e. g., Zorach v. Clauson, 343 U.S. 306, 313-314 (1952) (“When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions”); Walz v. Tax Comm’n of New York City, 397 U.S. 664 (1970) (upholding property tax exemption for church property); Lynch, 465 U. S., at 673 (the Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions . . . . Anything less would require the `callous indifference’ we have said was never intended” (citations omitted)); id., at 683 (“our precedents plainly contemplate that on occasion some advancement of religion will result from governmental action”); Marsh, supra; Presiding Bishop, supra (exemption for religious organizations from certain provisions of Civil Rights Act).

For the reasons given by the Court, I agree that the Free Speech Clause of the First Amendment forbids what respondents have done here. As for the asserted Establishment Clause justification, I would hold, simply and clearly, that giving Lamb’s Chapel nondiscriminatory access to school facilities cannot violate that provision because it does not signify state or local embrace of a particular religious sect.

One of the things that I have always detested about my profession is that too often the law is used to accomplish what cannot be accomplished at the ballot box.  A significant faction among American elites wish to drive religion from the public square.  A solid majority of the American people disagree.  Therefore the Constitution is contorted, by such judicial contrivances as the Lemon test, and twisted to arrive at an end that would never receive popular approval in elections.  Our most precious civil right is our right to govern ourselves and cases like the Cranston mural case chip away at that civil right each and every day and transform government by the consent of the governed into government by the consent of judges.  The Founding Fathers, who viewed the Judiciary as “the least dangerous branch” to liberty, would be flabbergasted at this development.





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  1. Scalia’s opinion here is one of my favorites, along with his dissent in Casey. The sarcasm just drips, but it’s well-merited. It’s hard to come up with a more asinine legal doctrine than the Lemon Test. That it survives to this day is both astounding and revolting.

  2. It is a pity they did not take down the Heavenly Father two words, replaccew it with a suggestion that the viewer take a moment of silence. That would have ruled out the “Christian” Prayer distraction. It was also sad to see the pro-prayer people be so insulting and judgmental to the anti-prayer crowd but delightful to see the pro-prayer people rebuke them. The whole argument from Lemon was sad, I thought the “Supremes” had abondoned that test outright as I followed the First Amendment dicussions. The separate Church/State argument is being thrown up in Europe now a lot. There is a brewing cultural war in the UK as the PM called for more ethcs in public life recently, echoing one presumes the talks B XV1 gave on the occcasion of his State visit in 2010 . In asking for a return to same, HH repeated that call in an extremely well-crafted talk in his more recent State visit to Germany which was very well received by the Bundestag. So tragic that the simple intent of the Founders was to avoid an Established Church as Mr Jefferson had to deal with first in Virginia. Now an anti-religion former Catholic female, now a high schooler, wins a case for the ACLU to promote her anti-religion agenda iN a case that was supposedly decided to prevent a pro-faith bias by the school. The judge also spelled “mantle” as mantel, easy error to make, in my view not as egregious as his “Lemon” decision, pun intended!

  3. The establishment clause should not even apply to local schools. There is no way that one can justify the incorporation of the establishment clause using “due process” or “privileges and immunities.”

  4. I thought the principle was that since the achool board and teachers were “goverment” they were “establishing” religion. It makes no sense as the Founders named the CREATOR in the Preamble and the coins have in God we Trust. That one CA Federal Court decided against the Pledge- since it has UNDER GOD in it, for grade schools, but it never went anywhere as the father did not have custody of his daughter who brought the case.

  5. Actually, I wouldn’t want my Catholic children saying this “power of positive thinking” kind of prayer. We Catholics always pray “through Christ our Lord,” which this prayer does not. We Catholics pray “in the name of the Father and of the Son and of the Holy Spirit,” which this prayer does not. No disrespect intended to those of any other religion. I want my kids growing up to pray like Catholics pray. I don’t want the public school teaching them another way of praying.

  6. “Actually, I wouldn’t want my Catholic children saying this “power of positive thinking” kind of prayer.”

    Then vote that way at local schoolboard elections. My problem is having Federal judges acting as “prayer police” in schools because of some sort of constitutional prohibition of prayers in public schools which simply does not exist from the text of the document. We started down this path of course largely because of the influence of Justice Hugo Black, an anti-Catholic bigot, who feared the influence of the Church.

  7. Harold,

    I agree about praying in Jesus name and in the name of the Father, Son and Holy Spirit. Nevertheless, I find nothing wrong in the petitions raised to God our Father in this prayer. I wish I had those positive thinking characteristics and practiced them consistently and always. Sadly, I fail.

  8. Thats a very nice prayer, I wish it were hanging in my son’s school. I think I won’t comment on the father bringing this case, my blood pressure is raised enough.

  9. When she is in front of God, as well as her father, they can point out the great work they did in getting a prayer off a school wall. Hopefully they will go on and on about how injurious it was for her to glance at it in the hall way. How she had a right not to look at it and deny all of the other children the any chance of seeing a prayer without any reference to God in it. How wishing good will among classmates is harmful and wanting to do your best and yet show grace when things don’t go your way is restricting and burdensome. Oh, how triumphant they were to have the court agree with them. Hopefully she is not showing too much glee as she walks the school hallway.

  10. One presumes at age 16 “God is not finished with her yet” which is true for all of us at any age whether Catholic or atheist or agnostic. She may end up as many former abortionists do, get a profound conversion experience and become a First Aamendment lawyer and join in suits against the more expreme ACLU positions. That makes more sense to me than trying as so many of the pro-prayer people did, to question her standing before the Last Judgmen in their un-Christian defence of a prayer that was neutral and very positive, but was judged to be the establishment of a religion by mentioning Heavenly Father. As I recall, “GOD BLESS THIS HONOURABLE COURT” is a ritual at the Supreme Court itself. Wonder if a future Hugo Black will find that un-constitutional as well as the daily prayer in Congress and on and on.

  11. Jessica Ahlquist, the 16 year old atheist who brought the suit, has become an atheist celeb on atheist sites on the internet.

    I think we have an early candidate for TIME’s person of the year.

  12. Any person who repudiates our founding principles set forth in The Declaration of Independence and our Constitution, repudiates his own unalienable civil rights. When one person is denied civil rights, all persons are denied civil rights. Therefore, the atheist, denying all unalienable rights endowed by our Creator, denies his own unalienable rights endowed by our CREATOR and has forfeit his legal standing in a court of law. Yes, a person is free to be an atheist, but the atheist is not free to deny any other person’s right to free expression of his response to the gift of Faith from God.

  13. When an atheist says: “I AM an atheist”, the atheist uses God’s name: “I AM”, in vain and contradicts himself. Jesus said: “My Father gives testimony to me and my works give testimony to me.” two witnesses establish a judicial fact.

  14. Clever try Mary de Voe but I do not think it applies. What does apply however is why and how does he or any atheist that he/she explain how anyone can say ” I am?”.Just how did I get to have “is-ness,” and from whence and is there an end to it here or later! Normal human beings in quiet moments and waking up at night and in sickness ask those questions. That is why we pray for those who have not experrienced God, they have found Him in different ways but not “seen” Him yet, that takes Faith, not intelligence and education by themselves.

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