Truer words never spoken. It is my fervent wish that they draw a bright line and then stay out of it. I know that won't be easy but it is certainly desirable. The state of establishment clause jurisprudence is Hale Bopp stuff.
After a searching review of Supreme Court and Third Circuit Court of Appeals precedent, it is apparent to this Court that both the endorsement test and the Lemon test should be employed in this case to analyze the constitutionality of the ID Policy under the Establishment Clause, for the reasons that follow.[snip]
Our next task is to determine how to apply both the endorsement test and the Lemon test to the ID Policy. We are in agreement with Plaintiffs that the better practice is to treat the endorsement inquiry as a distinct test to be applied separately from, and prior to, the Lemon test. In recent Third Circuit cases, specifically, Freethought Society v. Chester County, 334 F.3d 247, 261 (3d Cir. 2003), Modrovich, 385 F.3d at 401-04, 406-13, and Child Evangelism, 386 F.3d at 530- 35, the court adopted the practice of applying both tests. The Third Circuit conducted the endorsement inquiry first and subsequently measured the challenged conduct against Lemon's "purpose" and "effect" standards.4
[Text of footnote 4]: We do note that because of the evolving caselaw regarding which tests to apply, the "belt and suspenders" approach of utilizing both tests makes good sense. That said, it regrettably tasks us to make this narrative far longer than we would have preferred. [Bold added by PH]