The Supreme Court is currently deliberating over what is arguably the biggest case of the term.
The court heard oral argument on Feb. 27 in The American Legion v. American Humanist Association, a dispute over the constitutionality of a World War I veterans’ memorial. The pending outcome could make it one of the most important First Amendment cases in a generation.
The legal dispute involves the Bladensburg World War I Veterans Memorial, also known as the Peace Cross. In 1925, Gold Star Mothers and The American Legion erected the memorial to honor the 49 men from Prince George’s County, Maryland, who fought and died in World War I.
Sadly, nearly a century after its construction, an activist organization filed a lawsuit to have the memorial torn down because it happens to be in the shape of a cross.
Although a trial court judge upheld the memorial’s constitutionality, a federal appeals court ruled that it is unconstitutional because, according to the court, it “has the primary effect of endorsing religion and excessively entangles the government in religion.”
Those words come from the infamous “Lemon test,” named for the 1971 Supreme Court case of Lemon v. Kurtzman. Since 1971, Lemon has been the test used to determine whether the government has violated the First Amendment’s establishment clause, which forbids Congress from making any law “respecting the establishment of religion.”
The test says that a policy or statute is unconstitutional if a “reasonable observer” perceives it as a government endorsement of religion.
The Lemon test has led to some absurd outcomes in the real world. It has been used to strike down numerous displays, from nativity scenes to veterans’ memorials to Ten Commandments monuments. Surely those who drafted the First Amendment did not envision a nation purged of all such passive displays.
The late Justice Antonin Scalia famously referred to it as a “ghoul in a late-night horror movie.” Justice Clarence Thomas also appears to be no fan of Lemon, complaining that the Supreme Court’s “jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess.”
Although predicting the outcome of a case based purely on oral argument is daunting, if the oral argument is any indication, Scalia and Thomas may have larger company.
During the argument, Justice Neil Gorsuch, referring to Lemon as a “dog’s breakfast,” pondered whether the time has come to “thank Lemon for its service and send it on its way.” The court’s newest member, Justice Brett Kavanaugh, added that “the lower courts need some clarity” about whether Lemon has expired.
Lemon’s real damage has been the bitter seeds of religious hostility it has sown into American life. As a constitutional attorney, I’ve lost count of how many government officials have responded in doubt and fear to a complaint about some kind of passive religious display, ultimately capitulating under the threat of a lawsuit.
Notably, Gorsuch pointed out that such lawsuits are an oddity in the first place.
Any first-year law student can tell you that one of the necessary elements to a lawsuit is standing. During oral argument, Gorsuch identified that in arguably no other area of law is a citizen permitted to bring a lawsuit against the government simply because he or she sees something they find offensive.
This “offended observer” doctrine is a byproduct of Lemon. But Lemon has another, even more sinister byproduct.
When government officials become wary of any potentially offended observers in their midst, their default response to any passive display that even remotely touches on religion becomes “remove it” or “tear it down.” Those hostile to religious freedom have seized upon this phenomenon and use it in their crusade to cleanse the public square of any religious symbols.
The time has come, indeed, to thank Lemon for its service and send it on its way. Our judges deserve better, our government officials deserve better, and we deserve better.
The Supreme Court is the last hope for preserving the Bladensburg World War I Memorial. It may also be the last hope for returning the First Amendment to its original intent and meaning.