“Whatever may be the fate of the Lemon test in the larger scheme of
Establishment Clause jurisprudence, we
think it not useful in dealing with the sort of passive monument that Texas
has erected on its Capitol grounds.” (Emphasis added.)[1]
Chief Justice Rehnquist
Everyone knows that lemons are very bitter.
Thus, it is no surprise that when a Lemon
test analysis didn’t support Chief Justice Rehnquist’s view in Van Orden v. Perry, he simply declared
that it wasn’t “useful.”
In Lemon v. Kurtzman,[2] the Supreme Court set forth a three-prong test to analyze governmental acts under the Establishment Clause. If a governmental act failed any one of the prongs, the Court would find the act unconstitutional under the Establishment Clause. To pass constitutional muster under the Lemon test, a governmental act must:
In Lemon v. Kurtzman,[2] the Supreme Court set forth a three-prong test to analyze governmental acts under the Establishment Clause. If a governmental act failed any one of the prongs, the Court would find the act unconstitutional under the Establishment Clause. To pass constitutional muster under the Lemon test, a governmental act must:
1. Have
a secular purpose.
2. Not
have the primary effect of either advancing or inhibiting religion.
3. Not
result in an “excessive government entanglement” with religion.
I'll run through a Lemon test
analysis Van Orden v. Perry just for
fun:
First, the Texas legislature’s stated secular purpose for erecting the Ten Commandments monument was commend and congratulate the Fraternal Order of Eagles “for its efforts in combating juvenile delinquency throughout our nation.”[3] Obstensibly, this is a secular purpose. However, “[w]hile the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.”[4] Let’s take a closer look.
The truth is that the stated legislative purpose in Van Orden was a sham intended to circumvent the Establishment Clause. The idea of putting the Ten Commandments monument came not from the Texas legislature or the governor’s office, but was of a nation campaign by the Eagles to saturate the United States with the “laws of God.”
While Texas’s purpose is obvious to me, for those who may have some doubt let’s take a step back in time to the 1940s and the Fable of Judge E.J. Reugemer and the Wayward Juvenile. As the story goes, in 1956 Judge Reugemer – a devout Catholic and chairman of the Fraternal Order of Eagles Youth Guidance Commission – gave the youth the choice of sentences of either reform school or learn the Ten Commandments. Judge Ruegemer went on to establish the Eagles Ten Commandments programs – the distribution of tens of thousands paper copies of Ten Commandments and, starting in 1955, donating more than 150 granite monuments engraved with the full text of the Ten Commandments to cities and states, including Austin, Texas.[5]
The Court in Stone v. Graham said: “The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.”[6] The purpose of the Texas legislature for displaying the Eagles-donated Ten Commandments monument, like the purpose of the Kentucky legislature for mandating the display of the Ten Commandments on walls of public schools in Stone, was “to display the full text of one version of the Ten Commandments.”[7]
Second, the prominent display of the six-foot tall Ten Commandments monument between the Capitol and the state Supreme Court clearly has the effect of advancing Christianity to the detriment of other religions[8] and nonbelief – thereby violating the second prong of the Lemon test.
And third, in my opinion, the Texas legislature’s continuing to permit the monument to be displayed on its capitol grounds violates the “excessive government entanglement” prong of Lemon. However, the courts generally limit this prong to situations involving a state’s entanglement with a religious institution.[9] Consequently, for the sake of argument, I’ll give this prong a pass.
Thus, what Chief Justice Rehnquist’s plurality opinion in Van Orden informs us of is that justices, when they don’t like a rule established in a previous Supreme Court case,[10] either they ignore the rule (such as by saying it doesn’t apply in their case) or concoct a phony secular purpose (AND deny that the offending act has a religious purpose or primary affect of advancing religion). Chief Justice Rehnquist has done both.
Interestingly, the dissenters also ignored analyzing Van Orden under the Lemon test. That failure is not as devious as it may sound because they analyzed Van Orden under the “neutrality” principle: "First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”[11] While not identical, the Lemon and neutrality tests generally produce the same or similar result. I would further note that the neutrality test avoids the manipulation of the “reasonable observer” that Lemon has been criticized for.
First, the Texas legislature’s stated secular purpose for erecting the Ten Commandments monument was commend and congratulate the Fraternal Order of Eagles “for its efforts in combating juvenile delinquency throughout our nation.”[3] Obstensibly, this is a secular purpose. However, “[w]hile the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.”[4] Let’s take a closer look.
The truth is that the stated legislative purpose in Van Orden was a sham intended to circumvent the Establishment Clause. The idea of putting the Ten Commandments monument came not from the Texas legislature or the governor’s office, but was of a nation campaign by the Eagles to saturate the United States with the “laws of God.”
While Texas’s purpose is obvious to me, for those who may have some doubt let’s take a step back in time to the 1940s and the Fable of Judge E.J. Reugemer and the Wayward Juvenile. As the story goes, in 1956 Judge Reugemer – a devout Catholic and chairman of the Fraternal Order of Eagles Youth Guidance Commission – gave the youth the choice of sentences of either reform school or learn the Ten Commandments. Judge Ruegemer went on to establish the Eagles Ten Commandments programs – the distribution of tens of thousands paper copies of Ten Commandments and, starting in 1955, donating more than 150 granite monuments engraved with the full text of the Ten Commandments to cities and states, including Austin, Texas.[5]
The Court in Stone v. Graham said: “The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.”[6] The purpose of the Texas legislature for displaying the Eagles-donated Ten Commandments monument, like the purpose of the Kentucky legislature for mandating the display of the Ten Commandments on walls of public schools in Stone, was “to display the full text of one version of the Ten Commandments.”[7]
Second, the prominent display of the six-foot tall Ten Commandments monument between the Capitol and the state Supreme Court clearly has the effect of advancing Christianity to the detriment of other religions[8] and nonbelief – thereby violating the second prong of the Lemon test.
And third, in my opinion, the Texas legislature’s continuing to permit the monument to be displayed on its capitol grounds violates the “excessive government entanglement” prong of Lemon. However, the courts generally limit this prong to situations involving a state’s entanglement with a religious institution.[9] Consequently, for the sake of argument, I’ll give this prong a pass.
Thus, what Chief Justice Rehnquist’s plurality opinion in Van Orden informs us of is that justices, when they don’t like a rule established in a previous Supreme Court case,[10] either they ignore the rule (such as by saying it doesn’t apply in their case) or concoct a phony secular purpose (AND deny that the offending act has a religious purpose or primary affect of advancing religion). Chief Justice Rehnquist has done both.
Interestingly, the dissenters also ignored analyzing Van Orden under the Lemon test. That failure is not as devious as it may sound because they analyzed Van Orden under the “neutrality” principle: "First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”[11] While not identical, the Lemon and neutrality tests generally produce the same or similar result. I would further note that the neutrality test avoids the manipulation of the “reasonable observer” that Lemon has been criticized for.
Accordingly, this author holds that Chief Justice Rehnquist’s claim that the Lemon test isn’t useful is a myth – for the Chief Justice eschewed the test because it would have produced a result that he disagreed with.
[1] Van
Orden v. Perry, 545 U.S. 677, 686 (2005).
[4]
Edwards v. Aguillard, 482
U.S. 578, 586-587
(1987); Wallace v. Jaffree, 472 U.S. 38, 64 (1985) (Powell, J.,
concurring); id., at 75, (O'Connor,
J., concurring in judgment); Stone v. Graham,
449 U.S.39, 41 (1980); Abington
School Dist. v. Schempp, 374 U.S. 203, 223-224 (1963). See also McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 864 (2005) (Lemon requires
the secular purpose “to be genuine, not a sham, and not merely
secondary to a religious objective”).
[5] Other Eagles-donated Ten Commandments
monuments on public property in Texas are located in Corpus Christi (1960),
Dallas and Galveston (1957).
[8] The Eagles-donated monument is
sectarian. This point will be discussed
more fully in Myth #10: The Eagles’
Tombstones are Nonsectarian.
[9] See, for example, Conor Reilly, Preliminary Injunction, Excessive
Entanglement, and Prior Restraints: Should Courts Treat Potential Pretrial
Religious Infringement the Same as Potential Pretrial Speech Infringement?,
Akron J. of Const. Law and Policy, 2012, 3:1, at 4-7. Available at http://www.akronconlawjournal.com/articles/1-Reilly_Macro.pdf.
[10] The conservatives on the Supreme Court have
wanted to overturn Lemon but thus far
do not have the votes to do so.
[11] McCreary County v. ACLU, 545 U.S. 844, 860 (2005).
Note: the four dissenters in Van
Orden – Justices Stevens, O’Connor, Ginsburg and Souter – were in the
majority in McCreary.
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