Justice Scalia on the Lemon Test

Supreme Court Justice Scalia on the Lemon Test that forms the basis for much judicial censorship of civic religious expression, quoted by attorney Donald McClarey on American Catholic:

[McCleary] In few areas of the law has the Constitution been more twisted and deformed than in the area of First Amendment allowance of religious expression in schools. Justice Scalia gave a useful summary in 1993 in the Lamb’s Chapel v. Moriches Union Free School District case:

[Scalia] As to the Court’s invocation of the Lemon test: 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 thelittle children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: our decision inLee v. Weisman, 505 U. S. —-, —- (1992) (slip op., at 7), conspicuously avoided using the supposed “test” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so. See, e. g., Weisman, supra, at —- (slip op., at 14) (Scalia, J., joined by, inter alios, Thomas, J., dissenting); Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 655-657 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part); Corporation of Presiding Bishop of Church of Jesus Christ of Latter day Saints v. Amos, 483 U.S. 327, 346-349 (1987) (O’Connor, J., concurring); Wallace v. Jaffree, 472 U.S. 38, 107-113 (1985) (Rehnquist, J., dissenting); id., at 90-91 (White, J., dissenting); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 400 (1985) (White, J., dissenting); Widmar v. Vincent, 454 U.S. 263, 282 (1981) (White, J., dissenting); New York v. Cathedral Academy, 434 U.S. 125, 134-135 (1977) (White, J., dissenting); Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 768 (1976) (White, J., concurring in judgment); Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 820 (1973) (White, J., dissenting).

The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e. g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e. g., Aguilar v. Felton, 473 U.S. 402 (1985) (striking downstate remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts,” Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

The Lemon Test is a fine tool for slashing religious freedom when it is needed. Yet it is easily sheathed when discretion, rather than censorship, is the prudent course. Highly adaptable. Kind of a juridical Swiss Army knife, for anti-Christian bigots.

[Scalia] For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced. See, e. g., Choper, The Establishment Clause and Aid to Parochial Schools–An Update, 75 Cal. L. Rev. 5 (1987); Marshall, “We Know It When We See It”: The Supreme Court and Establishment, 59 S. Cal. L. Rev. 495 (1986); McConnell, Accommodation of Religion, 1985 S. Ct. Rev. 1; Kurland, The Religion Clauses and the Burger Court, 34 Cath. U. L. Rev. 1 (1984); R. Cord, Separation of Church and State (1982); Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. Pitt. L. Rev. 673 (1980). I will decline to applyLemon–whether it validates or invalidates the government action in question–and therefore cannot join the opinion of the Court today. [n.*]

I cannot join for yet another reason: the Court’s statement that the proposed use of the school’s facilities is constitutional because (among other things) it would not signal endorsement of religion in general. Ante, at 10. What a strange notion, that a Constitution which itself gives “religion in general” preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general.

Scalia makes an excellent point. How can endorsement of religion be unconstitutional, when the first two clauses of the Bill of Rights explicitly single out religious freedom and free exercise for Constitutional protection. Would the First Amendment itself be ruled unconstitutional in today's "separation of church and state" show trials?  It does after all explicitly endorse religious expression as a fundamental right of prime importance, with pride of place before freedom of speech and of the press and of assembly.  

[Scalia] The Attorney General of New York not only agrees with that strange notion, he has an explanation for it: “Religious advocacy,” he writes, “serves the community only in the eyes of its adherents and yields a benefit only to those who already believe.” Brief for Respondent Attorney General 24. That was not the view of those who adopted our Constitution, who believed that the public virtues inculcated by religion are a public good. It suffices to point out that during the summer of 1789, when it was in the process of drafting the First Amendment, Congress enacted the famous Northwest Territory Ordinance of 1789, Article III of which provides, “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” 1 Stat. 52 (emphasis added). Unsurprisingly, then, indifference to “religion in general” is not what our cases, both old and recent, demand. See, e. g., Zorach v. Clauson, 343 U.S. 306, 313-314 (1952) (“When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions”); Walzv. Tax Comm’n of New York City, 397 U.S. 664 (1970) (upholding property tax exemption for church property); Lynch, 465 U. S., at 673 (the Constitution “affirmatively mandates accommodation, not merely tolerance, of all religions . . . . Anything less would require the `callous indifference’ we have said was never intended” (citations omitted)); id., at 683 (“our precedents plainly contemplate that on occasion some advancement of religion will result from governmental action”); Marsh, supra; Presiding Bishop, supra (exemption for religious organizations from certain provisions of Civil Rights Act).

For the reasons given by the Court, I agree that the Free Speech Clause of the First Amendment forbids what respondents have done here. As for the asserted Establishment Clause justification, I would hold, simply and clearly, that giving Lamb’s Chapel nondiscriminatory access to school facilities cannot violate that provision because it does not signify state or local embrace of a particular religious sect

McCleary concludes:

[McCleary] One of the things that I have always detested about my profession is that too often the law is used to accomplish what cannot be accomplished at the ballot box. A significant faction among American elites wish to drive religion from the public square. A solid majority of the American people disagree. Therefore the Constitution is contorted, by such judicial contrivances as the Lemon test, and twisted to arrive at an end that would never receive popular approval in elections. Our most precious civil right is our right to govern ourselves and cases like the Cranston mural case chip away at that civil right each and every day and transform government by the consent of the governed into government by the consent of judges. The Founding Fathers, who viewed the Judiciary as “the least dangerous branch” to liberty, would be flabbergasted at this development.

The Founding Fathers would be mortified at judicial suppression of Christianity, but I'm not so sure they would be flabbergasted. They understood tyranny quite well, in a very personal way, which is why they failed to grant the judicial branch the absolute Constitutional power of judicial review.

They did, however, underestimate the resourcefulness and deliberate malignity of anti-Christian bigots.  The Founders composed the Constitution in the years just before the Cult of Reason introduced the world to the fruits of civic atheism, imposed by law.