The Corner

Law & the Courts

The Court’s Next Religion Case

. . . concerns whether a World War I memorial can be shaped like a cross. Rick Garnett, a law professor at Notre Dame University, has a clear-headed analysis, including this bit about one of the Court’s precedents:

[T]he Lemon “test” has long ceased to function as a test and instead now serves as an invitation (and an excuse) for judges to label their idiosyncratic impressions as the exercise of “legal judgment” and their prepossessions as the conclusions of the well-informed “reasonable observer.” It has not been applied — almost certainly because the justices realize it would produce unjustifiable and unwanted results — in decisions involving Ten Commandments monuments, legislative prayers, the Pledge of Allegiance and so on. It asks judges not only to ask questions they are not well equipped to answer but also to give disingenuous, jury-rigged answers to the questions they ask. It should be dramatically revised, if not abandoned altogether and replaced.

Ramesh Ponnuru — Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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