The Becket Fund for Religious Liberty has sent a brief to the Supreme Court in the travel-ban case — but unlike most of the many briefs in that case, it takes no position on whether the Court should uphold or nullify the ban. Its goal, rather, is to make sure that the Court refrains from distorting the meaning of the Constitution’s prohibition on religious establishments in the process of deciding the case.
Becket’s argument is that the Court should decide the case under the free-exercise clause rather than the no-establishment clause of the First Amendment. If the ban unconstitutionally targets Muslims, that is, it impinges on their right to practice their religion. It doesn’t establish Christianity (or non-Islam) as the state religion.
It seems like a pretty obvious point, but since some courts have gotten the issue wrong Becket spells it out in some detail. The executive order doesn’t create an establishment because it does not place the state in control of any church’s doctrine or personnel, doesn’t compel attendance of any church, doesn’t provide financial support of any kind to any church, and doesn’t put any church in charge of important public functions.
The Becket lawyers are not just concerned that the Court might apply the establishment clause to the case; they’re also concerned that they will apply the clause using the Lemon test. Under that test, developed in a 1971 case striking down state aid to religious schools, judges must decide whether a governmental policy has a legitimate secular purpose and whether it involves “excessive government entanglement” with religion — both, conservative lawyers have usually contended, highly subjective judgments. The Court has moved away from Lemon but lower courts considering the case have applied it.
As long ago as 1993, Justice Antonin Scalia likened the Lemon test to “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried.” Becket wants the ghoul killed and buried for good. But there’s a chance that the passions this case has called forth will bring it back once more.