The Lemon test changed freedom of religion into freedom from religion. For decades, we have fought to overturn the Lemon test. It has been used to tear down monuments, prevent children from saying “Merry Christmas” at school and has even been used to ban red and green colors during the Christmas season. Today, thanks in large part to Liberty Counsel’s work before the U.S. Supreme Court, the Lemon test is DEAD.

Beginning with our 9-0 win on May 2 involving the Christian flag and ending with the Coach Kennedy case over his prayers on the field after games, this has been an historic Supreme Court term that was decades in the making. —Mat

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In 1971, the Supreme Court ruling in Lemon v. Kurtzman put the First Amendment’s Establishment Clause at war with free speech and the free exercise of religion. The so-called Lemon test perverted the Constitution.

In 1993, Justice Scalia excoriated the Lemon test when he wrote: “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys.”

Over the years, the Lemon test has been used to ban red and green, Christmas displays and candy canes, remove war memorials, remove references to the Ten Commandments and God, censor religious viewpoints and generally thwart the free exercise of religion.

Since 1989, the date of our founding, Liberty Counsel has fought to overturn the judicial activist Lemon test that perverted the Establishment Clause and caused incredible damage. We finally won!

Help Liberty Counsel continue to fight for religious freedom.

In Shurtleff v. Boston, which we won 9-0 on May 2, every Justice rejected the City of Boston’s argument that the Lemon Test demanded it censor a flag because of the word “Christian” on the application.

In the 12 years prior to our case, Boston did not deny a single one of the 284 applications to fly flags on the city’s public forum flagpole. But Boston refused to fly Camp Constitution’s flag because Hal Shurtleff referred to it as a “Christian” flag on the application. Had Hal used ANY other word to describe his flag, it would have been approved. Boston argued it was compelled to deny the application because of the Lemon test.

The Court wrote, “Here, Boston concedes that it denied Shurtleff’s request solely because the Christian flag he asked to raise ‘promot[ed] a specific religion.’ … Under our precedents, and in view of our government-speech holding here, that refusal discriminated based on religious viewpoint and violated the Free Speech Clause.”

The Supreme Court rejected the Lemon test 9-0!

In Kennedy v. Bremerton, Liberty Counsel argued in our brief that the Lemon test transformed the Establishment Clause from a shield for religious liberty into a sword to defeat free exercise and free speech. The Court ruled that Coach Kennedy’s silent prayer in which he kneeled at the end of the game on the 50-yard line was protected speech and free exercise of religion, and then finally buried Lemon.

Since 1989, Liberty Counsel has tirelessly worked to strengthen free speech, advance the free exercise of religion and to overturn the Lemon test. That victory was finally achieved, and the cases this term will have enormous impact in many areas of American law.

The Court ruled that the Establishment Clause must be interpreted in “reference to historical practices and understandings.” Imagine that! Interpreting the Constitution as it was intended to be understood!

In the historic Kennedy ruling on June 27, the Court referred to Liberty Counsel’s 9-0 win in Shurtleff v. City of Boston. The Court reversed the errors of previous “activist” Justices over many decades!

The Lemon test is dead. Governments and government agencies may no longer suppress or censor religious speech and practice.

Even so, freedom of religion and speech REMAIN under attack. Liberty Counsel continues to litigate many religious freedom cases, including actions on behalf of sidewalk counselors, Christian counselors, health care workers, military service members, transplant patients and more.

In fact, Liberty Counsel’s large docket includes an unprecedented number of religious freedom lawsuits. We never charge our clients, instead relying on the generosity of faithful supporters like you who treasure their God-given liberties. You can DOUBLE your gift’s impact today through our generous Challenge Grant.

Mat Staver
Founder and Chairman
Liberty Counsel

Sources:

“SCOTUS Rules 9-0 in Favor of Christian Flag Case.” Liberty Counsel, May 2, 2022. Lc.org/newsroom/details/050222-scotus-rules-90-in-favor-of-christian-flag-case.

“SCOTUS Rules in Favor of Coach Kennedy.” Liberty Counsel, June 27, 2022. Lc.org/newsroom/details/062422-scotus-overturns-roe-v-wade.

Staver, Matthew, Anita Staver, Horatio Mihet, Roger Gannam, and Daniel Schmid. “Supreme Court of the United States on Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF of AMICUS CURIAE LIBERTY COUNSEL in SUPPORT of PETITIONER Counsel for Amicus.” March 1, 2022. Lc.org/PDFs/Attachments2PRsLAs/2022/030222KennedyAmicusBrief.pdf.