JWI Fellowship alumnus and legal counsel at the Becket Fund for Religious Liberty Nick Reaves (’15) responded to JWI Scholar Francis Beckwith’s piece declaring Lemon to be dead with a roadmap for Establishment jurisprudence. Reaves begins by listing more criticisms of Lemon, including its unworkability for all the ways government can come into contact with religion, its lack of objective grounding in the text, history, or traditions of the First Amendment, and its implicit assumptions about society, assuming a religion-free public square is more advantageous. Then, Reaves turns to the obvious question: what should replace Lemon? Reaves warns against just one test to adjudicate Church-State matters and instead advocates for a “context-specific comparison to what was considered an ‘establishment’ of religion at the time of the Founding.”
Some excerpts from the piece:
“Lemon’s analytical framework is thus a façade. Its lack of an objective grounding allows judges to rely on gut feelings to justify their preferred result. This (admittedly cynical) view of Lemon helps explain why even minor distinctions between Christmas displays—like how far away a group of carolers is placed from a crèche—often make the difference. In short, Lemon puts judges’ predilections, not the Constitution’s text, in the driver’s seat.”
“Beckwith is also right that rigorous application of Lemon would result not in government neutrality toward religion, but in government hostility. This is because an assumption about how society should be ordered is smuggled into Lemon’s framework. It assumes that a religion-free public square is the constitutional baseline against which all religious symbols, displays, and references must be measured. Requiring, for example, that all government actions be justified by a “secular” purpose implicitly rejects the possibility that a public monument’s reference to religion can be justified as an instance of benevolent neutrality between religion and non-religion.”
“[T]he approach supported by history and precedent is not a single test, but a context-specific comparison to what was considered an ‘establishment’ of religion at the time of the Founding. This approach is more faithful to the People’s agreement to the Establishment Clause in the first place and has the benefit of producing more consistent and objective decisions.”
“Thorough historical research has already distilled this understanding of an established church down to a handful of common characteristics: (1) government control over the doctrine and personnel of the established church; (2) government-mandated attendance in the established church; (3) restrictions on worship in dissenting churches; (4) government financial support of the established church; (5) restrictions on political participation by dissenters; and (6) use of the established church to carry out civil functions. These attributes—rather than some vague conception of what is ‘too much’ religion—best reflect what the People forbade via the Establishment Clause.”
Read the full piece here.