Happy solstice! We continue our discussion of the Establishment Clause by asking your thoughts on the most significant unaddressed issues in Establishment Clause jurisprudence.  The Court’s cases have focused on a relatively narrow array of subjects, including public displays, school prayer, and standing.  But what cases aren’t being brought that perhaps should be?  Are there any elephants in this room?

Meanwhile, our three other discussion threads, about the Supreme Court’s Christmas party, the Court’s recent cases, the future of the Lemon test, continue.  A great comment from yesterday’s discussion is below the jump.

Bradley Smith –

In discussing the future of the Lemon test, it seems prudent to look at the criticisms and see if they offer any viable alternatives. Justice Scalia seems to be one of the most vocal proponents of a new Establishment Clause test. Speaking at UVa, he advocated the use of tradition, instead of a “mechanical application of the Lemon test” (http://www.law.virginia.edu/html/news/2008_spr/scalia_story.htm).

While an interesting thought experiment, it seems impractical to use tradition as a guide. At one point or another, religious tradition has advocated numerous acts that by modern standards are abhorrent, and should certainly be legally forbidden (killing non-believers, the inferior role of women, etc.). Even the use of a less absurd religious notion such as funding for private schools, tradition does not seem a solid legal argument. The mere fact that a group has traditionally enjoyed something does not mean they are entitled to it indefinitely. As society changes, so do traditions, and whether these changes are formal or informal, using something as ephemeral as tradition is a legal landmine.

This is not to say that Justice Scalia (and others) do not have valid criticisms of Lemon. As the Justice says in Lamb’s Chapel, the test is often ignored completely, or used merely as guidelines instead of binding precedent. However, the desirability of the test is unquestionable. It provides a nice middle road by allowing secular interference in religion while preventing discrimination. The test allows for religious tradition and beliefs to exist and thrive, while also allowing legislators some reign to control behavior that may be publicly harmful (Church of Lukumi Babalu Aye v. Hialeah compared to Employment Division of Oregon v. Smith).

While the Lemon test may need clarification or modification, it seems unlikely to be completely abandoned in the near future. As recently as 2005, the Court has noted that the Lemon test serves an important function, while not always being completely dispositive in and of itself (McCreary County v. ACLU of Kentucky).

Posted in Community

Recommended Citation: Tejinder Singh, Today in the Community: December 22, 2011, SCOTUSblog (Dec. 22, 2011, 10:51 AM), http://www.scotusblog.com/2011/12/today-in-the-community-december-22/