By Ed Thomas and Jody Brown
February 2, 2005
AgapePress
When the U.S. Supreme Court considers the constitutionality of Ten Commandments displays, as expected later this year, more than that question will be at stake. One constitutional attorney says the justices' basic comparison against the Establishment Clause -- called the 'Lemon test' -- might also be on the block.
In addition to the cases presenting the first opportunity since 1980 for the Supreme Court to rule on the constitutionality of Commandments displays, it has invited discussion of alternatives to the "Lemon test," which has been the primary analytical test for Establishment Clause cases (separation of church and state) for more than three decades. The Center for Law & Policy, which submitted its brief in the cases this week, says that measure has outlived its usefulness.
Steve Crampton, chief counsel for the CLP, explains that the Lemon test consists of three basic questions.
"Whether the act or, in this case, display was erected for a secular purpose. Second, whether its primary effect advances religion. And third, whether it presents a case in which the government might become excessively entangled with religion," he says.
Crampton says the 30-year-old Lemon test criteria have allowed judges to substitute their own notions of religious propriety in place of state laws. The judgment standard is so flexible, he says, that religious liberties are easily taken away.
"Really it's no firm standard at all," the attorney says. "It is, by the court's own admission, highly flexible; it is overly fact-sensitive; and it yields different results depending on which judges are applying it. So it's not a rule at all."
According to Crampton, the Lemon test has been "one of the primary tools wielded by activist judges bent on removing all religious speech and artifacts from the public square." That is why he says the "fundamentally flawed" test should be replaced.
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