SCOTUS Commandments Cases Offer Chance to Address Flawed 'Lemon Test'
by Ed Thomas and Jody Brown
February 2, 2005
(AgapePress) - When the U.S. Supreme Court considers the constitutionality of Ten Commandments displays, as expected later this year, more than that question will be at stake. One constitutional attorney says the justices' basic comparison against the Establishment Clause -- called the "Lemon test" -- might also be on the block.
The high court is slated to hear oral arguments in two Ten Commandments cases on March 2: McCreary County, KY v. ACLU and Van Orden v. Perry. A decision is expected in June. Both cases will provide the opportunity for the Supreme Court to determine the constitutionality of Ten Commandments displays, whether alone or as part of a broader display. The former case involves two displays in the lobbies of two Kentucky county courthouses (McCreary and Pulaski); the latter, a granite monument on the grounds of the Texas Capitol.
Several legal groups have filed "friend of the court" briefs in the cases supporting the right to such displays. Among those groups the Thomas More Law Center (TMLC) in Michigan and the Mississippi-based Center for Law & Policy (CLP), which is affiliated with the American Family Association. The Michigan group filed its first brief in the Kentucky case in the December, and more recently in the Texas case. TMLC president and chief counsel Richard Thompson sees the outcome of the cases as having far-reaching implications.
"The high court's decision in these cases could determine how courts will analyze future disputes over the display of other religious symbols on public property, including Nativity scenes and Christmas crosses," Thompson says.
The Thomas More Law Center has been involved in several cases involving defense of the Ten Commandments, including two separate victories in 2004 where lawsuits sought to remove displays of the Decalogue from the cities of Pleasant Grove and Duchesne, Utah. Thompson's group hopes for another victory in the Supreme Court cases.
"The roots of American law are grounded in the timeless truths contained in the Ten Commandments -- and we must not abandon this heritage," he says.
Putting the Squeeze on the 'Lemon'
In addition to the cases presenting the first opportunity since 1980 for the Supreme Court to rule on the constitutionality of Commandments displays, it has invited discussion of alternatives to the "Lemon test," which has been the primary analytical test for Establishment Clause cases (separation of church and state) for more than three decades. The Center for Law & Policy, which submitted its brief in the cases this week, says that measure has outlived its usefulness.
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Steve Crampton |
Steve Crampton, chief counsel for the CLP, explains that the Lemon test consists of three basic questions."Whether the act or, in this case, display was erected for a secular purpose. Second, whether its primary effect advances religion. And third, whether it presents a case in which the government might become excessively entangled with religion," he says.
Crampton says the 30-year-old Lemon test criteria have allowed judges to substitute their own notions of religious propriety in place of state laws. The judgment standard is so flexible, he says, that religious liberties are easily taken away.
"Really it's no firm standard at all," the attorney says. "It is, by the court's own admission, highly flexible; it is overly fact-sensitive; and it yields different results depending on which judges are applying it. So it's not a rule at all."
According to Crampton, the Lemon test has been "one of the primary tools wielded by activist judges bent on removing all religious speech and artifacts from the public square." That is why he says the "fundamentally flawed" test should be replaced.
