Squeezing Lemon out of American jurisprudence

The Georgia evolution sticker case is exhibit number 96,482 why the Supreme Court should toss the dreaded "Lemon" test. The test to determine whether the First Amendment's Establishment Clause has been violated is named after the case in which it was first propounded, Lemon v. Kurtzman. The test examines whether the act has a secular legislative purpose, whether its primary effect neither advances or inhibits religion, and whether the act fosters an excessive entanglement between church and state.

It has also proved inherently unworkable, even to the point where six of the current sitting justices on the Supreme Court have, at one time or another, advocated abandoning the test. In 1993, Justice Scalia wrote of Lemon: "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 the little children and school attorneys of Center Moriches Union Free School District."

This most recent application of Lemon in the Georgia case again highlights its flaws. The Court found that there were legitimate secular purposes for the school board to enact the policy requiring stickers. But in a remarkable display of jurisprudential gymnastics, the Court noted that, although there was no evidence that the sticker was adopted to promote religion, the judge found that it did -- despite the fact that it does not mention religion.

Let's get back to first principles. The First Amendment -- under which the policy was challenged -- states in relevant part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." It is inconceivable that any reasonable person could look at the language of the sticker and conclude that the state of Georgia, through this school board, had made a law "respecting an establishment of religion." Sensible heads should have prevailed, but didn't.

The Supreme Court will have another opportunity in this term to deal the death blow to Lemon when it takes up the Ten Commandments cases from Kentucky and Texas. Keep your fingers crossed.