No More Lemon Test

Dec 26, 2018

Image from First LibertyWASHINGTON, D.C. – Liberty Counsel has filed an amicus brief to the U.S. Supreme Court on behalf of a case involving a 93-year-old 40-foot cross war memorial in Bladensburg, Maryland that the American Humanist Association has challenged as violating the Establishment Clause. (Image of the "Peace Cross" from First Liberty.)

The "Peace Cross," made of granite and cement, was built in 1925 as a tribute to local men who died during World War I. The Gold-Star Mothers who designed the memorial in 1919 chose the shape to recall the crosses marking the countless American graves on the Western Front of that war. A plaque on the base of the cross lists the names of 49 soldiers and both faces of the cross have a circle with the symbol of the American Legion, the veterans' organization that helped raise money to build it. It was also paid for by local families and businesses. It stands on a piece of land that has been owned since 1961 by a state commission at Maryland Route 450 and U.S. Route 1 in Bladensburg, approximately five miles from the U.S. Supreme Court.

The challenge to the "Peace Cross" began with the American Humanist Association filing a 2014 lawsuit against Maryland officials, which argued that the cross "discriminates against patriotic soldiers who are not Christian." The Fourth Circuit Court of Appeals previously ruled that the cross violated the Establishment Clause of the First Amendment. Now the High Court has agreed to hear the two cases that have been consolidated, American Legion v. American Humanist Association and Maryland National Capital Park Council v. American Humanist Association.

Liberty Counsel is arguing that the Supreme Court should reject its longstanding test known as the "Lemon Test," used to determine if a law violates the First Amendment. Its name comes from Lemon v. Kurtzman, in which the Court ruled that a Rhode Island law that paid some of the salary of some parochial school teachers was unconstitutional. This test has proven to be unworkable and has led to inconsistent and contradictory decisions on the constitutionality of 10 Commandment monuments and cross monuments like the "Peace Cross."

Liberty Counsel is arguing that the "Lemon Test" should be replaced with an objective test that would yield clear and consistent results. The new test would analyze displays based upon history, whether the symbol is ubiquitous and whether the display is coercive, i.e., is actively trying to proselytize or push a particular religious belief.

The late Justice Scalia described the so-called “Lemon Test” as a "ghoul in a late-night horror movie" that the Court brings out to scare people and sometimes leaves in the closet. Other justices, including Clarence Thomas, have criticized the "Lemon Test" because it does not provide firm guidance to lower courts.

"We are hopeful that the High Court will finally overturn this unconstitutional precedent on the Establishment Clause as a result of this 'Peace Cross' case," said Mat Staver, Founder and Chairman of Liberty Counsel. "In 2005, the Court decided two Ten Commandment cases on the same day, using the 'Lemon Test' in one case and no test in the other case. It is past time the Court return to the Constitution and abandon unworkable manmade tests," said Staver.

Liberty Counsel is an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these and related topics. Liberty Counsel provides broadcast quality TV interviews via Hi-Def Skype and LTN at no cost.

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