Forty-five years ago, the Supreme Court broke the Establishment Clause in Lemon v. Kurtzman. Four years ago, it abandoned Lemon’s ahistorical aberration in Town of Greece v. Galloway. But despite decades of calling on the Supreme Court to free them from Lemon, federal appellate courts have in the last four years developed a type of judicial Stockholm Syndrome that has kept them from accepting the Supreme Court’s rescue by means of Town of Greece.
That changed on Tuesday. In a 2-1 opinion where Lemon was conspicuous only by its absence, SCOTUS shortlister Judge Raymond Gruender of the Eighth Circuit found that Town of Greece set “an unequivocal directive” that the Establishment Clause “must be interpreted by reference to historical practices and understandings.” Judge Gruender recognized that this directive was a “major doctrinal shift” from past free-floating judicial Establishment Clause tests, which were unmoored from history and epitomized by Lemon. My firm, the Becket Fund for Religious Liberty, had urged just such an approach in the friend-of-the-court brief we filed in the appeal.
Judge Gruender also recognized that his opinion’s adherence to Town of Greece broke with the recent decisions of other federal circuits. For instance, panels in the Sixth, Seventh, and Tenth Circuits have failed to fully pull free of Lemon. Parting ways with them, Judge Gruender instead cited to and agreed with Judge Alice Batchelder’s 2015 Sixth Circuit concurring opinion that recognized Town of Greece’s “major doctrinal shift” as “a sea change in constitutional law.” He likewise relied on last year’s dissent by Judges Paul Kelly and Timothy Tymkovich from the en banc Tenth Circuit’s failure to reconsider an Establishment Clause ruling that was more faithful to Lemon than Town of Greece. And earlier this year, Judge Frank Easterbrook broke from a Seventh Circuit opinion that “d[id] not feel free to jettison” Lemon and thus failed to ground its analysis in “what the phrase ‘establishment of religion’ meant in the Eighteenth Century, when those words were adopted.”
Now that the Eighth Circuit is the first court of appeals to adopt this approach, other appellate majorities may soon feel free to follow. For instance, Judges Hull, Newsom, and Royal recently heard an Eleventh Circuit display case concerning a cross in a Pensacola public park that was struck down by the district court. The panel sounded very interested in Town of Greece’s application at the oral argument held in May. This should come as little surprise given Judge Roger Vinson’s district-court opinion openly stating that if he were not (in his view) bound by Lemon, he would have come to the opposite conclusion under Town of Greece’s historical approach. Similarly, Judges Hardiman, Krause, and Bibas of the Third Circuit will be hearing another Establishment Clause display case next Friday, where again the district court opined that Town of Greece would bless what Lemon condemned.
So the current split between the Eighth Circuit’s adherence to Town of Greece and the Sixth, Seventh, and Tenth Circuits’ loyalty to Lemon may soon be wider and sharper. And that would mean that the Supreme Court would have to step in.
But the Supreme Court may have the opportunity to resolve the matter even sooner than that. Pending on the Court’s docket is another cross case that involves the use of the Establishment Clause to ban religious imagery from public. If the Court takes on that case, it could and should use it to put Lemon to rest for good.