Today the Supreme Court handed down its decision in American Legion v. American Humanist Association, the long-awaited case regarding the World War I memorial in Bladensburg, MD. The Court’s decision to stop militant atheists from tearing down the historic ‘Peace Cross’ memorial is a major win for religious liberty. Unfortunately, while Justice Alito’s majority opinion harshly criticized the Lemon test, he apparently did not have the votes to overrule it completely. Even as written, Justice Kagan refused to join the sections of the opinion most critical of Lemon.
Several conservative justices wrote separately, further pointing out Lemon’s shortcomings. Justice Kavanaugh surveyed the types of Establishment Clause cases and showed that Lemon didn’t explain the Court’s jurisprudence in any of them, calling it “bad law.” Justice Gorsuch savaged the practice of allowing Establishment Clause challenges to proceed on the basis of mere offense to an observer while other First Amendment challengers have much harder standing requirements. And Justice Thomas suggested taking a step even further back and reconsidering whether incorporating the First Amendment religion clauses against the states could be squared with the original understanding of the Constitution and its amendments. He also encouraged the Court to explicitly overrule Lemon, writing, “It is our job to say what the law is, and because the Lemon test is not good law, we ought to say so.”
What is even more concerning than leaving bad precedents on the books is that Justices Ginsburg and Sotomayor would have required the cross to be torn down, arguing that every cross displayed on public property presumptively amounts to an unconstitutional endorsement of religion. As liberal groups are at work compiling secret lists of potential Supreme Court nominees in hopes that a Democrat will win in 2020, Americans should ask whether those secret judges would be equally extreme in coopting the Constitution for an aggressively secularist agenda.