Home » News » Supreme Court to address establishment clause, perhaps fate of Lemon Test

By David L. Hudson Jr., published on February 22, 2019

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This cross, known as the Peace Cross, was erected in 1925 to honor men from Prince George's County, Maryland, who had died during fighting in World War I. Later the state  acquired the land and has maintained the monument, which sits in the center of a busy traffic circle, ever since. (Photo by David via flickr, CC BY 2.0)

“Congress shall make no law respecting an establishment of religion.” So read the first ten words of the First Amendment – what author Steven Mansfield called “ten tortured words.” They form the Establishment Clause, the part of the First Amendment that arguably has led to the most differing interpretations in American history.


Later this month, the U.S. Supreme Court hears oral argument in American Legion v. American Humanist Association, a case involving the constitutionality of a 40-foot Latin cross honoring Christian veterans from World War I.


Though the cross has been there for more than 90 years, the 4th U.S. Circuit Court of Appeals ruled last year that the cross violated the Establishment Clause because it amounted to an impermissible endorsement of religion.


Now, the case goes to the High Court, giving the justices the opportunity to explain the meaning of these ten words.


Case gives Supreme Court opportunity to better define government entanglement with religion


The Establishment Clause clearly prohibits the U.S. government from creating a national church, as the British monarchy once did with the Anglican Church. It also prohibits the government from discriminating amongst religious sects. However, after that, agreement fades away quickly.


Some believe that this Latin cross – immense in size and immersed in Christianity – represents the epitome of the government advancing and elevating the Christian religion over other religions and non-religion. Others view the passive monument primarily as a civic supporting of war veterans.


An interesting aspect of this case concerns what the justices might say about what is still the leading test for Establishment Clause cases in the lower courts – the so-called Lemon test named after the case Lemon v. Kurtzman (1971), one of several leading First Amendment tests from the Burger Court.


In Lemon, Chief Justice Warren Burger wrote: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion. Finally, the statute must not foster an excessive government entanglement with religion.”


The Lemon test has met with significant criticisms from Court members through the years. Perhaps most famously, Justice Antonin Scalia disparaged the Lemon test as “a ghoul in a late-night horror movie” that “stalks our Establishment Clause jurisprudence.” Justice Clarence Thomas has called the Lemon test “utterly indeterminate.” Yet, it survives and even thrives in the lower courts.


Several groups say Lemon test needs to be replaced


Several amicus groups have called for the Court to abandon the Lemon test in filings in the Latin cross case. For example, the Becket Fund for Religious Liberty in its amicus brief writes: “The Lemon test has stalked our Establishment Clause jurisprudence long enough. Almost nobody thinks it provides an objective basis for resolving Establishment Clause cases.” The group calls for the Court to replace Lemon with a “historical approach to the Establishment Clause.”


The Cato Institute, in its amicus brief, also calls on the Court to abandon Lemon: “The Court should now squeeze Lemon out of its jurisprudence—and shouldn’t let stare decisis stop it from doing so.”


However, the test does have its defenders. The Muslim Advocates, in their amicus brief, call the Lemon test, though a “frequent punching bag,” remains “a remarkably stable test that has been in near-unanimous use in the past 25 years, and indeed throughout the 47 years since Lemon was decided.”


The justices could inter the Lemon test or they could decide the case without referencing the test. If the justices don’t employ the Lemon test, it will remain interesting to see if the Court takes an approach rooted in history and tradition, focuses on whether there is actual religious coercion under a coercion test, or takes a route that emphasizes neutrality.


In any event, those concerned about how religion and government interact or intersect should pay close attention to the Court’s upcoming decision in American Legion v. American Humanist Association.


David L. Hudson, Jr., a Visiting Associate Professor of Legal Practice at Belmont University College of Law, is a First Amendment attorney and author who has written, co-written, or co-edited more than 40 books, including First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Documents Decoded: Freedom of Speech (ABC-CLIO, 2017).



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