Supreme Court Tests
Kerby Anderson
When the Supreme Court ruled on the constitutionality of the memorial cross in Maryland, the lawyers with First Liberty Institute hoped that they would also dismiss what has been known as “the Lemon test.” Back in 1971, the justices created a three-part test in Lemon v. Kurzman that made it too easy to declare any religious symbol or action unconstitutional. The recent court ruling didn’t eliminate the test but essentially set it aside.
In his concurring opinion, Justice Clarence Thomas explained that “the logical next step” would be to “overrule the Lemon test in all contexts.” He argued for that because the test “has no basis in the original meaning of the Constitution” and “continues to cause enormous confusion in the states and lower courts.” That latter point can be illustrated by the reams of paper necessary to adjudicate whether a cross memorial erected nearly a century ago should be bulldozed down because it might offend a few humanists.
That was the other issue at stake. At least two of the justices raised the important question of whether an American who is offended by religious speech or religious display even has standing to bring a lawsuit. Justice Neil Gorsuch wanted to rescue “the federal judiciary from the sordid business of having to pass aesthetic judgment, one by one, on every public display in this country for its perceived capacity to give offense.” He concluded that “In a large and diverse country, offense can be easily found.”
Justice Thomas also set aside the argument that a cross is a sectarian symbol. If you think about it, every religious symbol (a cross, a Jewish star, a Muslim crescent) is sectarian.
Kelly Shackelford declared, “The days of illegitimately weaponizing the Establishment Clause and attacking religious symbols in public are over.” That’s why this cross case was so important.
Listen to this Viewpoint
Viewpoints
View All
Place For Prayer
Some people might wonder why we need a law that protects the right of houses of worship to use their facilities for religious purposes. But we do. And we have one: RLUIPA, the Religious Land Use and I...
AI’s Boom and Doom
Perhaps you have noticed AI’s boom and doom. One minute, investors were talking about the wonderful benefits of artificial intelligence and encouraging potential investors to throw their money at AI d...
Social Security
Most federal reports are unfortunately greeted with a yawn. But the report from the trustees who oversee Social Security deserved more attention than it received.
Take Action
View All
Protect Privacy Against Flock Cameras
Flock cameras are everywhere. While one camera is a tool, the more than 100,000 AI-powered cameras now posted around our nation are a new layer of dig...
Support the Safeguarding Women from Chemical Abortion Act
The abortion pill harms women and kills unborn children. Congress must act.