“Lemon is dead,” quoth the court, and there was much rejoicing.
Happily, the glad tidings from the Supreme Court’s decision last term in The American Legion v. American Humanist Association continue to ring through the federal courts of appeals. Under American Legion, the infamous Lemon v. Kurtzman, bane of the Establishment Clause, derided by the late Justice Scalia as a ghoul that refused to die, has received its mortal wound on at least one front. Lemon no longer haunts the use of “words or symbols with religious associations” for “ceremonial, celebratory, or commemorative purposes.” In its place stands American Legion, which mandates a presumptive lawfulness for established symbols, displays and practices.
The first to embrace Lemon’s fall was the Third Circuit in FFRF v. County of Lehigh. At issue was a large Latin cross at the center of the official county seal. Under American Legion, the Third Circuit summarily cast Lemon aside. Writing for a unanimous panel, Judge Hardiman explained that “American Legion confirms that Lemon does not apply to religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.” In place of Lemon, he continued, “the [Supreme] Court adopted a strong presumption of constitutionality for established, religiously expressive monuments, symbols, and practices.” Under American Legion, the Third Circuit made short work of it and found the seal “plainly constitutional.”
Then last week, the Eleventh Circuit became the latest court to shun Lemon’s prongs. In Kondrat’yev v. City of Pensacola, the Florida city’s maintenance of a 34-foot cross erected in a city park for Easter services during World War II was challenged. The case’s progression is instructive and merits a closer look.
Bound by Eleventh Circuit precedent that required application of Lemon, the district court had ruled against the cross and ordered its removal. This was not due to the court’s conviction that its ruling was either just or compelled by the Establishment Clause. As Judge Vinson observed, “the historical record indicates that the Founding Fathers did not intend for the Establishment Clause to ban crosses and religious symbols from public property.” Moreover, he explained, they “would have most likely found this lawsuit absurd. And if I were deciding this case on a blank slate,” he continued, “I would agree and grant the plaintiffs no relief.”
On appeal, the three judge panel of the Eleventh Circuit expressed similar frustrations. “[O]ur hands are tied,” they explained, by the circuit’s Lemon-based precedent. Otherwise, “[i]f we were writing on a clean slate, we might well agree” that the cross presented no Establishment Clause violation. In his concurrence Judge Newsom was more candid. The Eleventh Circuit’s precedent “is wrong,” he said, but “we—by which I mean the three of us—are stuck with it.” Absent en banc reconsideration or Supreme Court reversal, the panel was “constrained to affirm the district court’s decision.” And so they did.
Then proverbial lightning struck. With the city’s petition for certiorari pending, the Supreme Court handed down American Legion and ended Lemon’s forty-five year hostile dominion over religious references in public displays and practices. A week later, the Court granted the city’s cert petition, vacated the Eleventh Circuit’s decision, and remanded the case “for further consideration in light of American Legion v. American Humanist Assn.”
The Eleventh Circuit had its wished for opportunity, and it did not waste it. Writing for a unanimous panel, Judge Newsom declared that in matters of religious displays and monuments, “perhaps American Legion’s clearest message is this: Lemon is dead.” The Supreme Court had “jettisoned Lemon,” he said, and its “much-maligned three-part test.” In its stead, he explained, American Legion instituted “a strong presumption of constitutionality for established, religiously expressive monuments, symbols, and practices.” “[H]istory and tradition” are now a “crucial” part of Establishment Clause analysis. Applying these principles, the panel upheld the Pensacola Cross without strain or equivocation.
An old proverb says wisdom is vindicated by her children. That certainly proves true with American Legion. As shown by its progeny, American Legion is a refreshing deliverance from the subjective analysis and arbitrary results that spewed from Lemon’s dubious prongs. It provides the foundation to transform Establishment Clause jurisprudence from a confused morass of inconsistencies to a clear and robust doctrine accessible by all. It has broken Lemon’s curse, and much havoc Lemon wreaked on the First Amendment can now be repaired.
Whatever else may be said, American Legion tolls the end of the Lemon era. Its sun has set. Its reign is over.
That is welcome news indeed.
Roger Byron is Senior Counsel for First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all. Read more at FirstLiberty.org.