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First Liberty Briefing

First Liberty Briefing is an exclusive podcast hosted by First Liberty Institute’s Deputy General Counsel Jeremy Dys. In about 90-seconds, once a week, Jeremy recalls the stories that have shaped America’s religious liberty, from the founding era to current legal battles and more. It’s an insider’s look at the stories, cases, people, and laws that have made America the world’s leader in protecting religious liberty.
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Sep 30, 2019

The Lemon Test is the main proponent in religious monuments and symbols being torn down. While the American Legion case didn’t overrule the Lemon Test, the Justices expressed significant skepticism of it. Learn more at FirstLiberty.org/Briefing.


Over the last few episodes, we have been making our way through First Liberty’s latest Supreme Court case, The American Legion v. AHA.  Today, it’s all about Lemon.

Of course, we’re not talking about citrus, but the test stemming from the court’s decision in Lemon v. Kurtzman from several decades ago.  Lemonhas been the primary means by which opponents of religiously expressive monuments, symbols, and practices have torn down, erased, or ended them.  But, thanks to The American Legion case, those days are over.

In the words of a plurality of Justices, “Lemon ambitiously attempted to distill from the Court’s existing case law a test that would bring order and predictability to Establishment Clause decision making.” 

But it didn’t.  So, the plurality expressed significant skepticism of the test, but stopped short of overruling it. 

Justice Brett Kavanaugh, concurring, evaluated all the ways the Lemontest has been applied, concluding that unless the state action is coercive, monuments and practices rooted in our history and tradition are just fine.  Justice Neil Gorsuch called Lemon“a misadventure.”

Justice Clarence Thomas, also concurring, agreed with the plurality’s thinking, but said, “I would take the logical next step and overrule the Lemon test in all contexts.”

Bottom line for those who wish to attack religiously expressive monuments, symbols, or practices, they’re going to have to find another case.

We’ll wrap up our evaluation of this case in our next episode.

To learn how First Liberty is protecting religious liberty for all Americans, visit FirstLiberty.org.

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