Scalia on the Lemon Test as Late-Night Ghoul (now eliminated by SCOTUS)

heidelblog.net ^ | 11/30/13 | R. SCOTT CLARK

[cotton1706]

Kennedy v. Bremerton School District overrules Lemon v. Kurtzman

[Gaffer]

IMO, Democrats, MSM and RINOs colluded to murder Scalia.

[Rurudyne]

I believe what happened to Scalia was a trial run to see if they could get away with it, in preparation for Hillary becoming POTUS.

Who knows how many would have slipped in the shower or been in car accidents had she won in 2016.

[AnAmericanMother]

I know this is everyone’s favorite theory, but J. Scalia had multiple serious health issues and he didn’t look after himself. He had not looked well for a long time. J/S.

[mewzilla]

I’d agree except for this.

A sitting SCOTUS justice was an unattended unexpected death.

An autopsy should have been conducted.

State law supported one being conducted.

It wasn’t done.

That smells.

[Robert DeLong]

Both could still be true. They are not mutually exclusive.

[gibsonguy]

The most effective conservative SC Justice is found dead in rat donors house. The situation demanded an autopsy and independent investigation. We got neither.

[Ancesthntr]

There was also an unseemly rush to cremate him. Even more puzzling because Scalia struck me as a religious traditionalist, someone who would rather have been buried…and I wonder if the family was threatened to do the cremation very quickly. I put literally nothing past the Dems in their quest for power.

[nicollo]

Brilliant. BTTP

They’ll do their best to pack the court, ignore its rulings, make DC a state to get 2 more D’s (on top of the fraudulent 2 from GA), etc. etc.

But this Court is the Court that Scalia and Thomas worked so long and hard and brilliantly to create — no longer trimming the edges, no longer sowing the field, but HARVESTING it!

[TBP]

Jog my memory on the details of Lemon v. Kurtzman

[cotton1706]

https://en.m.wikipedia.org/wiki/Lemon_v._Kurtzman#:~:text=Lemon%20v.%20Kurtzman%2C%20403%20U.S.%20602%20%281971%29%2C%20was,violating%20the%20Establishment%20Clause%20of%20the%20First%20Amendment.

[nicollo]

The "Lemon Test," is a metric the Court has used to supposedly measure violations of the First Amendment's "Establishment clause," which along with the freedom of religion clause, reads,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...

Scalia delivers here devastating critique, especially this:

The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

The "supposed test," as Scalia calls it, from Lemon is as follows, with a violation of any terms thereof deemed unconstitutional:

Lemon Test:
1. The statute must have a secular legislative purpose.
2. The principal or primary effect of the statute must neither advance nor inhibit religion.
3. The statute must not result in an "excessive government entanglement" with religion.
Factors:
1. Character and purpose of institution benefited.
2. Nature of aid the state provides.
3. Resulting relationship between government and religious authority.

Lee v. Weisman was over a nonsectarian prayer given in 1989 by a rabbi at a public school graduation ceremony. Kennedy, of course, was the swing vote to the majority, writing, rather pathetically, that it violated the Establishment Clause because the school principal had guided the wording of the prayer given by the rabbi. The principal, btw, merely gave the rabbi a "pamphlet" on how to compose a prayer for "civic" ceremonies.

Instead of making a clean decision, Kennedy, of course, cut the baby in half, and ruled not against school prayer but against the principal's involvement in the rabbi's prayer. Thus Scalia, who dissented, in the article on this thread observed that,

Our decision in Lee v. Weisman conspicuously avoided using the supposed test but also declined the invitation to repudiate it.

If you apply Kennedy's ruling to the Lemon Test, Scalia's ridicule if well-earned:

- did the principal somehow "advance" or "inhibit" religion by giving the rabbi that pamphlet? (Kennedy seems to think he did both, which is illogical and stupid.)
- did the principal "entangle" religion with government by giving the rabbi the pamphlet, while not "entangling" by inviting the rabbi to speak in the first place? etc.

So you can see how vacuous is the Lemon Test, serving only, as Scalia brilliantly put it, for "frightening the little children and school attorneys..."

Along w/ Roe, Lemon is finally dead, per Kennedy v. Beremerton School District, fulfilling a significant part of Scalia's legacy.

Pinging friends from the Justice Thomas thread, fyi.

[KC Burke]

Thanks. Very enlightening for those of us outside the legal field.

[nicollo]

I’m a historian not an attorney, although I’ve got the law in my blood. I hope my analysis is consistent with what the pros would say.

Anyway, looking over yesterday’s Kennedy decision, I’m thrilled by it, as it clarifies the individual right to practice religion within a public institution — which we’ve long done in federal inaugurals of Congress or the Executive, but we’ve been denied by the atheists and their Court collaborators in our schools.

Here for a good write-up on the Kennedy decision: https://amylhowe.com/2022/06/27/justices-side-with-high-school-football-coach-who-prayed-on-the-field-with-students/