No Lemon Test for Nativity Scene

LIBERTY ALERT, LIBERTY COUNSEL

BROWNSTOWN, IN – When the Seventh Circuit Court of Appeals ruled yesterday in favor of a Nativity scene displayed annually at the Jackson County Courthouse, it was the first time that a court ruled that the so-called “Lemon Test” does not apply to these holiday symbols. Liberty Counsel represents Jackson County in this precedent-setting case, Woodring v. Jackson County, Indiana.

Applying a historical test, the Seventh Circuit ruled that the Nativity scene as part of the larger holiday display is constitutional. In doing so, the Woodring decision expressly parted from applying two of its prior opinions, stating: “Because we decline to follow our circuit precedent on similar Nativity scenes,” the option was circulated to “all judges in active service” to determine the interest in rehearing the case en banc. A majority of judges did not wish to rehear the case en banc. Only two voted to rehear the case.

The above statement from the Court of Appeals underscores the new direction the Woodring opinion charts for Nativity scene cases.

To support this new precedent, Woodring cited to the Supreme Court’s recent decision in Marsh v. Chambers (upholding legislative prayer using a historical test), Town of Greece v. Galloway (upholding prayer delivered before local governmental bodies), and American Legion v. American Humanist Association (upholding the Peace Cross in Maryland). The Seventh Circuit wrote, “Applying American Legion, we conclude that the County’s Nativity scene is constitutional because it fits within a long national tradition of using the Nativity scene in broader holiday displays to celebrate the origins of Christmas—a public holiday.”

The Seventh Circuit specifically noted that the Supreme Court in the American Legion case expressly disregarded the so-called “Lemon Test” in religious display cases where the display was “longstanding” and “established.” In the case of the Peace Cross, it was erected in 1925, nearly a century before it was challenged. The Woodring court noted that the Jackson County Nativity was in place for 15 years. Without clear guidance on what constitutes “longstanding” or “established,” the Woodring court was not able to conclude this shorter time frame met that standard. However, the Court went on to state that Lemon no longer applies to Nativity scene cases and a historical test should now be applied.

The “Lemon Test” comes from the case of Lemon v. Kurtzman, in which the Court ruled that a Rhode Island law providing government funding to non-secular schools was unconstitutional. Over time, this confusing and subjective test has caused conflicting opinions, and the outcomes were often dependent on a judge’s preference in counting how many angels could dance on the head of a pin.

Seventh Circuit Judge St. Eve wrote the opinion and stated, “Although some aspects of American Legion are unclear, one unmistakable message from the opinion is that Lemon is no longer a viable framework for cases “that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations…including those involving passive holiday displays with Nativity scenes.”

“Thus, six Justices found that Lemon is not the appropriate test for analyzing passive holiday displays that include nativity scenes. Although this was not a formal holding of the Court, to apply Lemon in this context after American Legion would be to ignore a clear directive from a majority of the Supreme Court…. We hold today that American Legion displaces the purpose and endorsement tests in the context of Establishment Clause challenges to nativity scenes in passive Christmas displays on government property. Applying American Legion, we hold that Jackson County’s nativity scene as displayed in 2019 does not violate the Establishment Clause,” the court wrote.

Regarding the “Lemon Test,” the late Justice Scalia once said: “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.”

Liberty Counsel’s Founder and Chairman Mat Staver said, “The ‘Lemon Test’ has proven to be unworkable and has led to inconsistent and contradictory decisions on the constitutionality of religious displays, symbols, and words. Justice Scalia would be happy to see that the Lemon Test is dead with regard to religious displays. It is time to bury it forever.”


Used with the permission of Liberty Counsel.


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.


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