The framers would be sour on the "Lemon test"

By Michael Gaynor

The United States Supreme Court and subordinate courts generally apply the aptly named "Lemon test" to determine whether religious expression with a governmental connection is palatable under the Constitution.

The test is named for the plaintiff in Lemon v. Kurtzman, 403 U.S. 602 (1971).

Webster's Dictionary defines "lemon" as "an acid fruit that is botanically a many-seeded pale yellow oblong berry and is produced by a stout thorny tree," "a tree that bears lemons" and "one (as an automobile) that is unsatisfactory or defective."

The "Lemon test" is a decidedly unsatisfactory and defective lemon to which the United States Supreme Court majority stubbornly and senselessly continued to adhere when it recently decided two cases involving public displays of the Ten Commandments: ACLU of Kentucky v. McCreary County and Van Orden v. Perry.

The "Lemon test" — the United States Supreme Court's prescribed standard for determining whether governmental conduct is permissible under the Establishment Clause — has been rounded condemned for good reason.

It is judicial activism at its worst: putting aside God, religion and America's history in order to pander to a small secular extremist minority demanding veto power over the will of the vast majority of Americans.

The secular extremists tried without success to expand the scope of the word "establishment" to encompass anything supporting religion generally and to end the military chaplaincy during the nineteenth century

Both houses of Congress studied the matter carefully and rejected the secular extremist position in the clearest possible terms.

The Senate Judiciary Committee issued a report explaining the establishment clause:

"The clause speaks of 'an establishment of religion.' What is meant by that expression? It referred, without doubt, to the establishment which existed in the mother country, its meaning is to be ascertained by ascertaining what that establishment was. It was the connection with the state of a particular religious society, by its endowment, at public expense, in exclusion of, or in preference to, any other, by giving to its members exclusive political rights, and by compelling the attendance of those who rejected its communion upon its worship, or religious observances. These three particulars constituted that union of church and state of which our ancestors were so justly jealous, and against which they so wisely and carefully provided...."

The report further stated that the Founders were "utterly opposed to any constraint upon the rights of conscience" and therefore they opposed the establishment of a religion in the same manner that the church of England was established.

But, the Founders "had no fear or jealousy of religion itself, nor did they wish to see us an irreligious people....They did not intend to spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of 'atheistic apathy.' Not so had the battles of the revolution been fought, and the deliberations of the revolutionary Congress conducted."

A similar House Judiciary Committee report explained that "an establishment of religion" was a term of art with a specific meaning:

"What is an establishment of religion? It must have a creed, defining what a man must believe; it must have rights and ordinances, which believers must observe; it must have ministers of defined qualifications, to teach the doctrines and administer the rites; it must have tests for the submissive, and penalties for the nonconformist. There never was an establishment of religion without all these."

But the sly secular extremists persevered and eventually prevailed upon the United States Supreme Court to declare neutrality between religion and irreligion as constitutionally mandated and governmental support for all religions to be constitutionally prohibited.

Even though, as in Roe v. Wade, there was no constitutional basis for that.

And even though America's greatest Chief Justice, John Marshall, and greatest legal commentators of the first and second halves of the nineteenth century, Justice Joseph Story and Thomas Cooley, made it absolutely clear that the First Amendment was not intended to allow that.

John Marshall described the American population as "entirely Christian," explained that "with us Christianity and Religion are identified," and opined that "[i]t would be strange indeed, if with such a people, our institutions did not presuppose Christianity, and did not often refer to it, and exhibit relations to it."

Justice Joseph Story wrote:

"Probably at the time of the adoption of the Constitution, and of the amendment to it . . . , the general, if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state so far as was not incompatible with the private rights of conscience and the freedom of religious worship," and that "an attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."

And Thomas Cooley, in his treatise, Constitutional Limitations, deemed recognition of God and general support for religion governmental prerogatives: "[T]he American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires. . . . Whatever may be the shades of religious belief, all must acknowledge the fitness of recognizing in important human affairs the superintending care and control of the Great Governor of the Universe, and of acknowledging with thanksgiving his boundless favors, or bowing in contrition when visited with the penalties of his broken laws."

Most specifically, wrote Cooley, "No principle of constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures; or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation."

Cooley emphasized that government needs to "foster religious worship and religious institutions, as conservators of the public morals and valuable, if not indispensable, assistants to the preservation of the public order." "Public recognition of religious worship," he wrote, is based on "the same reasons of state policy which induce the government to aid institutions of charity and seminaries of instruction."

After World War II, the United States Supreme Court decided to ignore all that preceded and take the secular extremist path.

The so-called "Lemon test" requires a court to determine that (1) a challenged government action has a secular purpose; (2) the action's primary effect neither advances nor inhibits religion; and (3) the action does not foster an excessive entanglement with religion.

Under the "Lemon test," governmental action violates the Establishment Clause if it fails to satisfy any of these prongs.

The "Lemon test" is not only ambiguous and subjective, but predicated on a definition of establishment that the religious people who wrote and ratified the First Amendment never intended.

In Van Orden v. Perry, the Fifth Circuit, and then 5 of the 9 United States Supreme Court justices, agreed that it is constitutional for the State of Texas to publicly display of a six-foot-tall granite Ten Commandments monument that the Fraternal Order of the Eagles had donated to the State.

In order to continue to public display the monument, the State of Texas asserted a secular purpose: honoring the contributions of the Eagles.

The Eagles choose to honor The Ten Commandments, and the State of Texas chose to honor the Eagles, and that satisfied the secular purpose prong of the "Lemon test."

Not much is supposed to be needed to satisfy the secular purpose test.

The second prong was satisfied too, since the fabled "reasonable Observer" would not see the display as a state endorsement of the Commandments' religious message.

And third prong was no impediment, because the monument stayed right there in place, unmoving and unentangling.

In McCreary County, the Sixth Circuit, and then 5 of the 9 United States Supreme Court justices, purported to apply the same constitutional analysis and prohibited the inclusion of the Ten Commandments — found on a single sheet of paper — as part of a larger public display about the origins of American law and government.

The detectives on the bench sensed a dangerous religious purpose lurking in the display and the larger public display about the origins of American law and government was deemed a fig leaf by those who give a fig about their "Lemon test."

The petitioners in McCreary County specifically asked the Supreme Court to do away with the "Lemon" test's "purpose prong," because it "focuses too much on subjective motives when the focus should be on the objective effects of an activity."

The United States Supreme Court's secular extremist majority, as judicial activists, preferred to keep the focus on subjectivity and opted not to defer to Kentucky officials and instead to deem them deceivers.

Many states argued as friends of the Court that the Court should analyze government conduct under the "coercion test" first articulated by Justice Kennedy in his concurrence in County of Allegheny v. ACLU.

Justice Kennedy was right that the Constitution protects the private right of conscience and prohibits coercion.

Justice Thomas put it succinctly: a policy is constitutionally permissible where "the State has not created or maintained any religious establishment" and the policy "does not expose anyone to the legal coercion associated with an established religion."

Justice Thomas actually thinks he's supposed to interpret the Constitution instead of bend it like a pretzel to his personal will.

Hindsight shows that when President Reagan said that now Justice Thomas was the best available choice for the highest court in the land, he was right.

Pray that hindsight will show that Judge John Roberts is an equally good choice by President George W. Bush (as he appears to be).

And that Chief Justice Rehnquist and Justices Scalia, Thomas, Kennedy and Roberts will overrule the banning of Ten Commandments displays in Kentucky courthouses and anywhere else as soon as possible.

© Michael Gaynor