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Uh, No, Establishment Clause Law Is Not a “Hot Mess”


This spring the Supreme Court will rule on the American Humanist Association’s lawsuit challenging the constitutionality of a forty-foot Latin cross on public property in Bladensburg, Maryland, and conservatives are hoping that the court uses the case to revise longstanding church-state separation law. Jurisprudence surrounding the First Amendment’s Establishment Clause, the constitutional basis for church-state separation, is “in disarray,” according to Justice Clarence Thomas. Another appellate court described this area of law as a “hot mess.”

This chorus has been repeated so often that even mainstream commentators have picked it up. Some believe the high court may finally scrap the so-called “Lemon test,” named for the 1971 Lemon v. Kurtzman case, which has provided the main framework for analyzing alleged Establishment Clause violations. Under the Lemon test a law is unconstitutional if it has a religious purpose, if it has a primary effect of advancing or inhibiting religion, or if it excessively entangles religion and government.

According to its detractors, this test has raised havoc. The late Justice Antonin Scalia described the Lemon test as akin to “some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad…frightening the little children and school attorneys.”

In truth, however, it’s more like Scalia is haunting us from the grave, as his criticism of Lemon has gained traction long after his own departure. Even the mainstream New York Times joined the chorus, opining in a recent editorial that the justices, in deciding the case, “would be wise to not sow more confusion in this area of the law.” Writing as if the “hot mess” allegation were actually true, the Times argued that “more clarity from the high court—if not a definitive, bright-line rule—is in order.”

The notion of a bright-line rule sounds nice, but the Times editorial board seems to overlook an important detail. That is, the Lemon test draws a line that is about as bright as any could be, clearly instructing courts to look at the purpose and effect of government action and consider whether the action creates excessive entanglement between religion and government. What could be more clear?

Critics of the Lemon test forget that any test, sooner or later, will be faced with facts that challenge it, facts that come close to that cherished bright line. Such is often the case in the law, whether courts are determining a driver’s alleged negligence, a criminal defendant’s alleged guilt, or the cruelty and abusiveness of a prescribed punishment. All of these situations have legal tests, and there are always factual scenarios that result in disagreements over whether the test leads to one outcome or another. The existence of such disagreements—what some would call close calls—hardly means that a test should be scrapped.

If there are problems with the Lemon test, they arise mainly because some jurists choose to ignore it. Conservatives dislike the test because it often strikes down governmental religious activity that they see as benign or desirable. Applying Lemon, the Supreme Court has twice ruled against prayers at public school events (graduation prayer in Lee v. Weisman in 1992 and football game prayers in Santa Fe Ind. School District v. Doe in 2000). In a scathing dissent in Lee, Justice Scalia accused the majority of “social engineering,” saying the court “lays waste a tradition.” Here we see that the real problem is not the Lemon test itself, but the fact that the test leads to an outcome—the removal of a government-sponsored religious practice—that religious conservatives favor.

Nobody who values church-state separation, however, would categorize the rational, straightforward logic of Lee and Santa Fe as a “hot mess.” Indeed, it’s noteworthy that the original Supreme Court school-prayer ruling that outraged conservatives, Engel v. Vitale, came down in 1962, almost a decade before Lemon. In the real world, the “disarray” that so bothers conservatives is actually a well-established line of precedent.

And if there are some scenarios that leave reasonable minds differing—temporary holiday displays with nativity scenes, candy canes, and reindeer, for example, or a Ten Commandments display that has sat among an array of other displays for decades—none of this amounts to a “hot mess” (which, incidentally, defined as “a person or thing that is spectacularly unsuccessful or disordered, especially one that is a source of peculiar fascination”). It simply means there are some close calls. Any lawyer knows, however, that close calls are the fuel that keeps the engine of the law going. This is no reason to scrap a useful test for assessing constitutionality.

The Bladensburg cross, meanwhile, is an enormous, permanent Christian symbol towering over a government-owned traffic circle in a Maryland suburb. The constitutional law that governs such a situation is not in “disarray,” nor is the case itself a close call.

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