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Saturday, July 15, 2017

Trinity Lutheran, the Lemon Test, and the Future of Religious Liberty

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Dear Remnant Reader,

If I were to ask you what the term, “the Lemon test” signifies, how might you respond? I assure you it has nothing to do with the rating of the citrus fruit. If not that, then what? “The Lemon test” refers to the decision of the U.S. Supreme Court in 1971 that dealt a serious blow to the concept of religious liberty guaranteed under the 1st Amendment of the U.S. Constitution.

Formulated by then Chief Justice Warren Burger, who wrote the majority opinion in Lemon v. Kurtzman (hence, the name), it dealt with Pennsylvania and Rhode Island programs that supplemented the salaries of teachers in religious-based private schools for the teaching of secular subjects. The Court struck down both programs as “violating the establishment clause of the Constitution;” in short, the 8-1 decision by the Supremes (Justice White the only dissenter) claimed that what the two states were proposing was tantamount to establishing a “state religion.”
The majority also sought to prevent such questionable behavior in the future by other states, so the three-part “Lemon test” began: first, the law had to have a non-religious aspect; second, it must neither advance nor inhibit religion, and last, but not least, the statute in question must not broaden “an excessive government entanglement with religion.” That was not the end of this mischevious finding: to add insult to injury,  “the Lemon test” has served as the basis for many of the decisions in cases that come before the Supreme Court dealing with religious liberty.

While all of this legal talk may prove confusing, in practice what was noticeable was that the federal courts in particular, later followed by state courts, began to use “the Lemon test” to restrict what was meant by “the free exercise of religion” guaranteed under the U.S. Constitution. Although never formally overruled, “the Lemon test” did not escape criticism by legal scholars and jurists, foremost among them the late Justice Antonin Scalia. A longtime opponent of the test, he used it as an example of an area in which the law “originated from judges rather than from society's idea of traditional practices.”  And he added:  “As bad as the Lemon test is, it is worse for the fact that, since its inception, its seemingly simple mandates have been manipulated to fit whatever result the Court aimed to achieve.” (Emphasis mine) The "Lemon test" now provided judges the ability to impose their political philosophy on the law of the land, a power never granted by the Constitution.  In short, it gave the judiciary a greater opportunity to become "politicians in robes."

Others claimed that “the Lemon test” was “unduly subjective” and led to very questionable decisions, and one critic even used a most sinister metaphor: “The Lemon test stalks the constitutional landscape of religion, so menacing in its gait that it scares “little children” and “school attorneys” alike. Its perpetual resurrection, despite repeated stabbings through the heart, confirms the unfettered discretion of judges who employ it (“we can command it to return to the tomb at will”). The monster remains entirely at the judges’ mercy.”

There is no doubt that “the Lemon test” is continuing to influence judicial decisions and to restrict governmental recognition of the religious voice in the public square.  Under its aegis, prayer has been eliminated from public schools and school activities, crèches from public squares, and religious monuments still have a hard time of it.

One of the more egregious cases involved a case in which the  American Civil Liberties Union (ACLU) sued three Kentucky counties in federal district court for displaying framed copies of the Ten Commandments in courthouses and public schools. The ACLU argued the displays violated the First Amendment's establishment clause, which prohibits the government from passing laws "respecting an establishment of religion." The district court and the Sixth Circuit Court of Appeals ruled the displays violated the establishment clause. Apparently, in the lengthy period between the initial display of the Commandments and the suit brought by the ACLU, no one seems to have noticed that "establishment." The basis of that absurd ruling…you guessed it: “the Lemon test.”

There is a bit of irony in that decision: any visitor who enters the courtroom of the U.S. Supreme Court, will, in observing  the marble frieze that surrounds the justices and audience, see representations of the great law- givers of the world.  The visitor can easily make out Moses, prominently displayed among other notable figures, holding the Ten Commandments. Perhaps the ACLU will bring a case before the Justices to airbrush the Ten Commandments from their courtroom.  Does any of this information have any relevance for the future of religious liberty in the U.S.? I believe it does.

In a review of Mary Eberstadt's recent publication, Dangerous to Believe, I spent some time describing the (then) pending case of Trinity Lutheran Church, which had brought its case before the Supreme Court over the refusal of the State of Missouri to expend funds for a church-run playground. (See: The Remnant May 15/30, 2017) If the past were prologue, it would appear that under "the Lemon test," or "Blaine Amendment," which also prevented public funds to religious organizations, Trinity Lutheran was fighting a losing battle, a battle it had lost in both the Federal District and Circuit Courts. But on June 26, 2017, in what may signal a shift in the Court away from "the Lemon test" approach, seven justices, including Justices Kagan and Breyer, neither noted for a  "conservative" legal perspective, along with Chief Justice Roberts, and Justices Alito, Thomas, Kennedy, and Gorsuch, came to the conclusion: "The Missouri Department of Natural Resources has not subjected anyone to chains or torture on account of religion. And the result of the State's policy is nothing so dramatic as the denial of political office. The consequence is... a few scraped knees. But the exclusion of Trinity Lutheran from a public benefit for which it was otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand." But that was not all the justices stated in their opinion.

Both Justices Thomas and Gorsuch, the latter replacing Justice Scalia, added further thoughts on the decision. Justice Gorsuch added another dimension to how "the Lemon test" had blurred the distinction between laws that discriminate on the basis of religious status and religious use. (Emphasis in original). "Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission?" Justice Gorsuch's last sentence in his concurring opinion does raise a question: "...general principles here do not permit discrimination against religious exercise - whether on the playground or anywhere else."(Emphasis mine) Had the criticism of the late Justice Scalia been vindicated?But the Court decision is not alone in offering evidence of a possible change in the direction of revisiting the baleful effects of "the Lemon test" on the nation. 

Justices Sotomayor, whose dissent was lengthier than the Court's majority opinion, was joined by Justice Ginsburg, a former lawyer for the ACLU. I've noted in previous articles that Justice Sotomayor has been showing signs that she would take up the role that Justice Ginsburg played earlier as the Court's steadfast liberal, and in the Trinity Lutheran case, that is evident. At the heart of her dissent is this: "At bottom, the Court creates the following rule today: The government may draw lines on the basis of religious status to grant a benefit to religious persons or entities, but it may not draw lines on that basis when doing so would further the interests the Religion Clauses (in the 1st Amendment) protect in other ways." I suggest that Justice Sotomayor's major annoyance is that the members of the Court departed from "the Lemon test" to reach their conclusion.

Now mainly forgotten, Finley Peter Dunne was a humorist and reporter, who wrote at the turn of the 20th century for various publications. In over 500 columns, his major character Mr. Dooley, an Irish bartender, through his wit and insight, captured the meaning of the important issues of the day. In 1901, the United States Supreme Court decided a series of  lawsuits known as the"Insular Cases," which raised the legal question: Do the Constitutional guarantees of U.S. citizens extend to subjects of the newly gained American possessions? The written opinions were difficult to understand, and the court was deeply divided, but the net effect was to hold that the Constitution did not follow the flag in every regard, such as voting in presidential elections. The decision gave Mr. Dooley an opportunity to puncture the court's ivory-tower reputation: "No matter whether the constitution follows the flag or not, the Supreme Court follows the election returns." Can Mr. Dooley's comments be as relevant in 2017 as he believed them to be in 1901?

But if "the Supreme Court follows the election returns," then how have previous and the current presidents viewed their role in supporting and sustaining the idea of religious liberty? While the Courts may "interpret" the laws, the Executive Branch of government is charged with their execution, and in so doing, brings a perspective regarding the role of religious liberty in the nation's founding. Compare the following three statements by Presidents of the United States:

In August of 1947, then President Harry Truman said: "As a Christian nation, (emphasis mine) our earnest desire is to work with men of good will everywhere to banish war and the causes of war from the world whose Creator desired that of every race and in every clime should live together in peace, good will and mutual trust."

In June 2006, then Sen. Obama stated: "Given the increasing diversity of America's population, the dangers of sectarianism have never been greater. Whatever we once were, we are no longer just a Christian nation, (emphasis mine) we are also a Jewish nation, a Muslim nation, a Buddhist nation, a Hindu nation, and a nation of non-believers." 

In July 2017, at a gathering organized by Southern Baptists' Faith and Freedom Coalition's Road to Majority Conference, President Trump, who has consistently recognized his administration's "protection of religious liberty" by specifically mentioning the plight of the Little Sisters of the Poor, said: "Our religious liberty is enshrined in the very First Amendment in the Bill of Rights. The American Founders invoked "Our Creator" four times in the Declaration of Independence. But then, this: "I remind you that we're going to start saying "Merry Christmas again." (emphasis mine)

Last May, a contributor to The Federalist Society Newsletter wrote:  "Without Justice Scalia, religious liberty is in peril." Few, including me, would be foolish enough to believe that one decision by the Supreme Court, or an address by President Trump will immediately change the current course of the protection of religious liberty; yet, to cite the Chinese proverb: "A journey of a thousand miles begins with one step."  I do believe, however, that President Trump's nomination of Justice Gorsuch is a very positive sign, and that the possible retirements of Justices Kennedy and Ginsburg will likely bring about the opportunity to once again bring the Court to the defense of religious liberty that the late Justice Scalia championed during his 30 years on the Court.


I am reminded that in the darkest days of World War II, Prime Minister Winston Churchill held fast to the belief that the Allies, despite their losses, would emerge victorious in the end. When the Axis forces began to lose their momentum, Churchill, in one of his memorable phrases, said: "Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."

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Read 3241 times Last modified on Saturday, July 15, 2017
Vincent Chiarello | Remnant Columnist

Born on the Day of St. Patrick in 1937 in Brooklyn, N.Y., he was a high school history teacher until 1970, when he entered the U.S. Foreign Service. His overseas assignments included U.S. embassies in Colombia, Guatemala, Spain, Norway and Italy; his last assignment was to the U.S. Embassy to The Holy See. He is married to Cynthia (nee Goldsmith) and has three children. They attend a Traditional Latin Mass in Northern Virginia.

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