The Establishment Clause Ghoul Stalks Maryland

by Ed Whelan

Two days ago, a divided panel of the Fourth Circuit ruled (in American Humanist Ass’n v. Maryland-National Capital Park Comm’n) that Maryland officials violated the Establishment Clause by displaying and maintaining on public property—indeed, “in the center of one of the busiest intersections” in the county—“a 40-foot tall Latin cross, established in memory of soldiers who died in World War I.”

In reaching their conflicting conclusions, both the majority and the dissenting judge undertook to apply the infamous Lemon test (from the 1971 decision in Lemon v. Kurtzman). They parted ways on the so-called “second prong” of Lemon—namely, as the majority puts it, whether “a reasonable observer would fairly understand the [monument] to have the primary effect of endorsing religion.”

This supposed “prong” in fact has no actual point, as it is full of weasel words that make it a font of subjectivity. The only sensible response of any “reasonable observer” to the question, “Does this monument have the primary effect of endorsing religion?” would be to say, “What the heck does that question even mean?”

I’m reminded of one of the most colorful passages Justice Scalia ever wrote, in Lamb’s Chapel v. Center Moriches Union Free School District (1993) (citations omitted):

As to the Court’s invocation of the Lemon test: 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. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman conspicuously avoided using the supposed “test,” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so.

The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three prongs “no more than helpful signposts.” Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

All three judges on the Fourth Circuit panel, for what it’s worth, are very liberal judges. I’ll further note that the dissenting judge in this case, chief judge Roger Gregory, wrote the Fourth Circuit’s recent en banc decision that ruled that President Trump’s travel restrictions flunked the Lemon test.

It’s time for the Supreme Court to kill the Lemon ghoul once and for all.

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