In defending the "separation of church and state"-- an unconstitutional phrase inserted into Constitutional law by a former Klansman who used it as part of the KKK initiation oath in Alabama-- Steven Novella invokes the Lemon Test:
The Lemon Test has been described as unconstitutional gibberish by a number of legal scholars and Supreme Court justices.
Is the Lemon Test unconstitutional gibberish?
Consider this: apply the Lemon Test to the Free Exercise clause of the First Amendment:
According to the Lemon Test, the First Amendment is unconstitutional.
The Lemon Test
Based on the 1971 case of Lemon v. Kurtzman, 403 U.S. 602, 612-13, the Court will rule a practice unconstitutional if:
1) It lacks any secular purpose. That is, if the practice lacks any non-religious purpose.
2) The practice either promotes or inhibits religion.
3) Or the practice excessively (in the Court’s opinion) involves government with a religion.
The Lemon Test has been described as unconstitutional gibberish by a number of legal scholars and Supreme Court justices.
The Lemon test has been criticized and revived numerous times by the Court. Justice Scalia likened the Lemon test to a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” It is “easy to kill,” allowing the Supreme Court to apply the test when the Court wishes to condemn a particular practice, ignore the test when the Court wishes to allow a practice, or simply refer to the test as a helpful guide. Lamb’s Chapel v. Moriches Union Free School District, 508 U.S. 384, 398-99 (1993) (Scalia, J., concurring). The inconsistent application of the test led to great uncertainty, and concomitantly chilled legitimate religious expression clearly outside the legitimate boundary of the Establishment Clause.
Is the Lemon Test unconstitutional gibberish?
Consider this: apply the Lemon Test to the Free Exercise clause of the First Amendment:
Congress shall make no law respecting an Establishment of religion or prohibiting the Free Exercise thereofThe Free Exercise clause of the First Amendment clearly promotes religion. This violates prong #2 of the Lemon Test, which rules unconstitutional any law or government practice that "either promotes or inhibits religion".
According to the Lemon Test, the First Amendment is unconstitutional.
"According to the Lemon Test, the First Amendment is unconstitutional."
ReplyDeleteNot to worry: any day now, some so-called judge is going to declare the entire US Constitution to be "unconstitutional".
From the notoriously and proudly left-wing New Republic:
ReplyDeleteUnder Lemon, bus trips from home to religious school are constitutional, but bus trips from religious schools to local museums are unconstitutional... Standardized tests are O.K., but teacher-prepared tests are not. Government can provide parochial schools with books but not maps, provoking Senator Daniel Patrick Moynihan's [D - NY] quip: "What about atlases?" The Court has invoked Lemon to strike down a nativity scene surrounded by poinsettias and to uphold a nativity scene surrounded by elephants, teddy bears, Santa's workshop and a talking wishing well. This is the Court's idea of equal time for atheists; practitioners call it the "three plastic animals" rule.
The article is entitled "Lemon Law".
The rule is absurd on its face.
Vis-a vis Ilion's comment:
To a large extent that's already been done by our Konstitutional Perfesser Presidente and Queso Grande de Todo El Mundo, Bimbeaux McLightworker, who said that the Constitution is a "deeply flawed" document. As I noted yesterday, Bimbeaux and his fellow Proglodytes hate America, and, by logical extension, America's guiding principles.
But trust the Progs... they have a better idea. If they could just get websites, computers, the economy, misunderstanderers of The Religion of Peace®, and the weather to cooperate!
So . . . to your way of thinking prohibiting the government from prohibiting the free exercise of religion “clearly promotes religion”? Were that so, what would neutrality look like?
ReplyDelete"Lawyer" Troll: "what would neutrality look like?"
DeleteWho cares? The "Lemon Law" clearly isn't "neutral". It requires a "secular purpose", whatever the hell that is beyond an excuse to make it up on the fly.
I suppose I could address your point, but since you haven't yet addressed mine, I'll not bother--unless and until you do.
Delete