The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Lemon, Avatars, and Irritable Observers
Justice Gorsuch's Shurtleff concurrence places yet another nail in Lemon's crypt.
Last week during oral argument in Kennedy v. Bremerton School District, Paul Clement urged the Court to overrule Lemon. Even if American Legion effectively limited Lemon to a very narrow subset of cases, lower courts, and more importantly, government officials, continue to cite Lemon. But why? Justice Gorsuch's concurrence in Shurtleff offers a theory: Lemon allows government officials to reach the result they want. Lemon is like a video game!
Ultimately, Lemon devolved into a kind of children's game. Start with a Christmas scene, a menorah, or a flag. Then pick your own "reasonable observer" avatar. In this game, the avatar's default settings are lazy, uninformed about history, and not particularly inclined to legal research. His default mood is irritable. To play, expose your avatar to the display and ask for his reaction. How does he feel about it? Mind you: Don't ask him whether the proposed display actually amounts to an establishment of religion. Just ask him if he feels it "endorses" religion. If so, game over.
And, invariably, when playing the Lemon game, judges can select the "reasonable observer" that feels the utmost umbrage:
First, it's hard not to wonder whether some simply prefer the policy outcomes Lemon can be manipulated to produce. Just dial down your hypothetical observer's concern with facts and history, dial up his inclination to offense, and the test is guaranteed to spit out results more hostile to religion than anything a careful inquiry into the original understanding of the Constitution could sustain. Lemon may promote an unserious, results-oriented approach to constitutional interpretation. But for some, that may be more a virtue than a vice.
Perhaps the "reasonable observer" standard should be relabeled the "irritated secularist" standard.
Still, Gorsuch overdid the Lemon analogies a bit much. I counted three separate "grave" references.
Dragging Lemon from its grave may be your only chance.
Second, it seems that Lemon may occasionally shuffle from its grave for another and more prosaic reason.
To justify a policy that discriminated against religion, Boston sought to drag Lemon once more from its grave.
We got the point after the first disinterment. Sometimes, less is more.
Alas, only two Justices joined this concurrence. The lower courts have a green light to keep using Lemon. SCOTUS can't catch them all.
