Which path will the Court choose?

On Wednesday, February 27, the U.S. Supreme Court heard oral arguments in a case that will settle the fate of a nearly 100-year-old cross-shaped war memorial in Maryland. The Court also has an opportunity to clarify or change the legal standard to be applied in other Establishment Clause cases.

The cross-shaped memorial at the center of The American Legion v. American Humanist Association is found in the middle of a busy intersection and is part of a Veterans’ Memorial Park that also contains other memorials to past wars. Originally built on private property and maintained by the private group that erected it, it has been maintained by the government since ownership was transferred in 1961 for traffic safety reasons.

While the fate of a nearly 100-year-old cross-shaped memorial is important, what has court-watchers most interested is what path the Court will take in deciding the case.

The Court has 3 paths to choose from:

1) Apply the Lemon Test;

Named after the 1971 decision in which it was presented, the Lemon Test focuses on whether the law or practice has a secular purpose, whether its principal effect advances religion, and whether the law or practice creates an “excessive entanglement with religion.”

The late Justice Scalia once referred to it as a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried” because the Court has since altered and criticized it.

2) Create a new test;

During the Feb. 27 oral arguments, Justice Gorsuch appeared ready to provide a new test: “We haven’t overruled it, but we never use it any more… And I think a majority of this Court, though never at the same time, has advocated for Lemon‘s dismissal. So is it really fair on the lower court judges struggling to apply this Court’s dictates if we don’t provide an answer on Lemon?”

Justice Kavanaugh echoed the sentiment, explaining that “we haven’t used it in the most important cases that are on point here… Those go back 40 years, and we haven’t used the test… the lower courts need some clarity about that. If the test isn’t being used, that would suggest that the test doesn’t work for this context.”

3) Or decide the case on other grounds, while leaving the Lemon Test around for a rainy day.

Responding to an attorney’s suggestion that Lemon need not be overturned in this case and it could be otherwise resolved, Justice Gorsuch said: “You’re in the same boat saying… keep it around for a rainy day, but please, please, please, do not apply Lemon to this case.”

Laughter erupted in the courtroom when the attorney claimed he was fine with Lemon being applied, but then suggested the Court should reexamine it when Justice Kavanaugh asked, “What if we think it’s unconstitutional under Lemon?”

SO… As Justice Gorsuch asked, “Is it time for this Court to thank Lemon for its services and send it on its way?”

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