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Death of the Lemon Test? The Future of Religious Freedom Jurisprudence

August 11, 2020

By Roger Byron, Senior Counsel

Just over a year ago, the Supreme Court of the United States handed down a major victory for religious liberty in The American Legion v. American Humanist Association. In the landmark 7-2 decision, the Court jettisoned the infamous Lemon test and found that established monuments, symbols, and practices that use religious symbols or references are presumed lawful.

The Lemon test, first used by the Court in the eponymous 1971 decision Lemon v. Kurtzman, wreaked havoc on religious freedom jurisprudence for nearly fifty years. Far from preserving religious freedom, it ushered in an era of subjective analysis, arbitrary results, and jurisprudence hostile to religion that often banished religious references from public practices, symbols, and monuments. In American Legion, however, the Court broke Lemon’s curse. As Justice Neil Gorsuch explained in his concurring opinion, “Lemon was a misadventure. It sought a ‘grand unified theory’ of the Establishment Clause but left us only a mess.”

In the last year alone, no less than three U.S. courts of appeals have rejected Lemon and recognized American Legion as the standard for traditional public symbols and practices that incorporate religion. That has been good news for religious freedom. In Freedom From Religion Foundation v. County of Lehigh, the U.S. Court of Appeals for the Third Circuit embraced American Legion and found that the long-standing cross at the center of a Pennsylvania county seal was “plainly constitutional.” The court understood that “American Legion confirms Lemon does not apply to religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.” It recognized that ordering removal of the cross, as Lemon may well have done, could “exhibit a hostility toward religion that has no place in our Establishment Clause traditions, inviting disputes over similar longstanding symbols nationwide.”

The Eleventh Circuit followed suit in Kondrat’yev v. City of Pensacola, in which it applied American Legion to reject an attempt to tear down a large cross erected by the city during World War II for Easter services. In a unanimous opinion, the court explained that American Legion established “a strong presumption of constitutionality for established, religiously expressive monuments, symbols, and practices,” and that “history and tradition” were now “crucial” to the legal analysis. Mincing no words, the court declared that in matters of religious monuments and displays, “perhaps American Legion’s clearest message is this: Lemon is dead.”

Most recently, the First Circuit upheld the phrase “so help me God” at the end of the oath of allegiance administered at United States naturalization ceremonies. Under American Legion, the court rejected Lemon and upheld this traditional, optional part of the oath as “a ceremonial, longstanding practice” protected by American Legion’s strong presumption of constitutionality.

Unfortunately, old habits die hard, and fifty years of Lemon won’t go quietly into the night. A lower court in Indiana recently ignored the Supreme Court and applied Lemon to find that the display of a Nativity scene – part of a larger Christmas display that included secular holiday elements – violated the First Amendment. The decision has been appealed to the U.S. Court of Appeals for the Seventh Circuit. This week, First Liberty Institute filed an amicus brief with the Seventh Circuit in support of the display.

Similarly, in the small oceanside town of Rehoboth Beach, Delaware, the city government banned the Knights of Columbus from displaying a Christmas season Nativity scene on city property because of its religious message, despite the fact that a Nativity has been part of local tradition for many years. In June, First Liberty filed a lawsuit against the City of Rehoboth Beach on behalf of the Knights of Columbus. The city’s refusal to allow the Knights to display their Nativity scene violates the Knights’ basic religious freedoms secured by the First Amendment.American Legion was a decisive victory for Americans of all faiths and should be celebrated. Even so, much is required to ensure the landmark ruling continues to protect our religious rights. While religious freedom is woven into the nation’s fabric, only vigilance and determination can ensure it stays that way.

Orginally Published on RealClear Religion on July 30, 2020

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