The first sentence of the US Constitution’s First Amendment provides that “Congress shall make no law respecting an establishment of religion[.]” This is known as the “Establishment Clause,” and to say it has long generated controversy is an understatement.

The Establishment Clause has been interpreted so that states, and all other governmental entities (not merely “Congress”), are subject to its restrictions, which is why many (if not most) cases under the Establishment Clause have been brought as civil rights claims against state and local governments. Notably, Justice Clarence Thomas has expressed reservations about applying the Establishment Clause to the states (as opposed to only the federal government), and those reservations merit serious consideration by anyone claiming to be an originalist in the mold of Scalia and Thomas. But before those ideas are explored, first let us examine how the Establishment Clause has fared in recent history.    

During the last part of the 20th century and into the 2000s, a frequently used test for whether the Establishment Clause has been violated was known as the Lemon Test, named for the US Supreme Court decision Lemon v. Kurtzman, 403 U.S. 602 (1971). Far easier to describe than for lawyers and judges to apply in practice, the Lemon Test held that, for a law or government action to pass muster under the Establishment Clause, (1) it must have a secular purpose; (2) it should not have the chief effect of advancing or inhibiting religion; and (3) it must not create excessive “entanglement” by the government with religion. 

The presence of this three-prong test brought controversy and spawned litigation, which often required state and local municipalities to expend untold amounts of money in attorneys’ fees and costs, even when they prevailed in court, to defend themselves from lawsuits. And critics of the Lemon Test were (and are) legion.

Summarizing the difficulty of applying Lemon, Chief Justice Rehnquist wrote in 2005, “Over the last 25 years, we have sometimes pointed to Lemon v. Kurtzman, as providing the governing test in Establishment Clause challenges. Yet, just two years after Lemon was decided, we noted that the factors identified in Lemon serve as no more than helpful signposts. Many of our recent cases simply have not applied the Lemon test. Others have applied it only after concluding that the challenged practice was invalid under a different Establishment Clause test.”

If the late chief justice was perplexed, imagine the confusion for the bar and lower court judges.

Other criticisms were even more direct. In a concurring opinion issued in 1993, Justice Scalia said Lemon wrought a “strange Establishment Clause geometry of crooked lines and wavering shapes.” Even more dramatically, he compared it to a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”      

Despite these harsh words for the Lemon Test, lower courts generally persisted in applying it. The Lemon Test may have even helped fuel the idea — popular in some circles — that the purpose of the Establishment Clause is to prevent religion from interfering with the government, when it is instead better understood as intended to prevent the government from interfering with religion.

A striking example of how the Lemon Test could be used to actively suppress religious expression, perhaps due to an anti-religious animus, came when the American Humanist Association, an atheist group, sued to have the Bladensburg Peace Cross in Bladensburg, Maryland, taken down. This 40-foot Latin cross had been erected shortly after World War I to honor area servicemen who perished in the war. The US Court of Appeals for the Fourth Circuit, which covers North Carolina along with four other states, held that the memorial had to be removed because it violated the Establishment Clause.

Fortunately, in American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019), the US Supreme Court reversed the Fourth Circuit by a vote of 7 to 2, thereby saving the monument. One could be forgiven, however, for suspecting that the motivations of those who sued to remove the Latin Cross in the first place were not entirely grounded in dedication to the Constitution, but rather arose from hostility toward Christianity more generally. In this way, the Establishment Clause became a means for the powerful to punch down against and marginalize Christians.       

Institutional antipathies toward any expression of religion in the public square even led to obviously absurd results. For example, the City of Boston long had a practice by which it would permit various groups to hold events on part of the City Hall’s grounds and, during the event, allow the group to fly its flag from a public flagpole. The City had allowed ethnic and cultural flags, the flags of foreign countries, and flags for causes such as a rainbow flag for “gay pride,” just to name a few. Then something changed when a Christian group sought to fly a Christian flag during its permitted event at the City Hall.

The City rejected the request, citing the Establishment Clause. Only after many years of litigation and the intervention of a unanimous US Supreme Court with its decision in Shurtleff v. City of Boston, 596 U.S. 243 (2022), were the rights of the Christian group finally vindicated. Justice Gorsuch wisely observed that part of the reason the City of Boston had gotten this case “so wrong” was its reliance on the odious Lemon Test.

But, without question, the Lemon Test is now — at long last — dead, with the Supreme Court having unambiguously overturned it in Kennedy v. Bremerton School District, 597 U.S. 507 (2022). Indeed, in Kennedy, the Supreme Court stated it had for some years previously instructed courts to rely on “historical practices and understandings” to interpret the Establishment Clause, and yet still Lemon had persisted. But fortunately, reliance on Lemon is now clearly and unmistakably reliance on bad law.

Shadows of Lemon nevertheless remain, and public officials are too often still inclined to retreat from defending challenged policies or practices that are alleged to implicate the Establishment Clause upon even upon the most modest of saber rattling from secular special interests. Part Two of this article will examine some examples of this sort of “saber rattling” and reveal how governments across the country, including here in North Carolina, are still halting the legitimate exercise of religion in the public square under the guise of adhering to the Establishment Clause.