The Volokh Conspiracy

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SCOTUS Eliminates the Lemon Defense, and Smokes Joints With Play

A revolution in Establishment Clause jurisprudence from three Free Exercise and Free Speech cases.


Formally, at least, there were no Establishment Clause cases on the Court's docket this past term. But in three cases involving Free Exercise and Free Speech claims, the Court effected a revolution in Establishment Clause jurisprudence. The facts of the cases are very different, but they all involve a common thread.

First, in Shurtleff v. Boston, the city refused to fly a flag with a cross to avoid a potential Establishment Clause violation. Second, in Carson v. Makin, Maine excluded religious schools from its tuition policy to avoid a potential Establishment Clause violation. Third, in Kennedy v. Bremerton School District, the coach was disciplined to avoid a potential Establishment Clause violation. In each case, the government restricted the rights of free exercise and/or free speech to prevent an entanglement between church and state. Call it the Lemon defense.

In each of the three cases, the Supreme Court emphatically rejected the Lemon defense. In Shurtleff, raising the flag would not have violated the Establishment Clause. In Carson, providing funding for the religious schools would not have violated the Establishment Clause. In Kennedy, allowing the coach to pray at the 50-yard line would not have violated the Establishment Clause. Therefore, fears of entanglement would not justify infringements of speech and exercise rights.

Going forward, the government can no longer say, "Lemon made me do it."  Or, as Justice Gorsuch put it, the fears about "phantom constitutional violations" will not suffice.

In truth, there is no conflict between the constitutional commands before us. There is only the "mere shadow" of a conflict, a false choice premised on a misconstruction of the Establishment Clause. Schempp (Goldberg, J., concurring). And in no world may a government entity's concerns about phantom constitutional violations justify actual violations of an individual's First Amendment rights

Justice Breyer's dissent in Carson laments the elimination of the so-called "play in the joints" framework.

I have also previously explained why I believe that a "rigid, bright-line" approach to the Religion Clauses—an approach without any leeway or "play in the joints"—will too often work against the Clauses' underlying purposes.

And Sotomayor laments that not much is left of the doctrine:

Second, the consequences of the Court's rapid transformation of the Religion Clauses must not be understated. From a doctrinal perspective, the Court's failure to apply the play-in-the-joints principle here, leaves one to wonder what, if anything, is left of it.

As I read Shurtleff, Carson, and Kennedy, the Court has snapped the "play in the joints" doctrine. Locke v. Davey is abrogated. And, combined with the quasi-overruling of Lemon, the government can no longer use the Establishment Clause as a prophylactic. The state will have to err on the side of allowing more religion into the public square to avoid violating speech and exercise rights.

Four years ago, the Court could not muster this sort of change in American Legion.  But Red Flag June has brought a revolution to Establishment Clause jurisprudence, in three cases that did not actually raise Establishment Clause claims.