Gerard V. Bradley (Notre Dame Law School) has posted The Death and Resurrection of the Establishment Clause on SSRN. Here is the abstract:
Promulgated in 1971, Lemon v. Kurtzman’s tripartite test for violations of the Establishment Clause was the Court’s then latest attempt to bring some clarity to what was a muddled area of constitutional law. By 1983, the Court recognized that the doctrine was irreconcilable with one of our country’s unbroken traditions; when Lemon confronted legislative prayers in Marsh v. Chambers, the Justices genuflected. Ten years later, Antonin Scalia thought he saw a ghost: “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.” Since then, many if not most courts facing Establishment Cause issues have worked around Lemon. The Justices in 2005 described the Lemon criteria as “no more than helpful signposts.” Justice Alito wrote of Lemon in 2019: “In many cases, this Court has either expressly declined to apply the test or simply ignored it.”
Figuring out whether to apply Lemon has exasperated courts. So, too, has actually applying it. Courts doing so report futility akin to that of the lost motorist who received these directions from Lawrence “Yogi” Berra: “Keep going this way until you come to a fork in the road, and take it”.
Judges around the country have waxed eloquent on Lemon’s uselessness. In the Ninth Circuit, Judge Nelson complained, “The still stalking Lemon test… which [has] floated to the top of this chaotic ocean from time to time in order to answer specific questions, [is] so indefinite and unhelpful that Establishment Clause jurisprudence has not become more fathomable.” A majority of the Supreme Court agreed with Justice Alito’s comment in the Bladensburg Cross case that Lemon “ambitiously attempted to distill from the Court’s existing case law a test that would bring order and predictability to Establishment Clause decisionmaking,” but the expectation of a ready framework “has not been met.”
