by Mitch Kokai
Senior Political Analyst, John Locke Foundation
[T]he Supreme Court ruled 9-0 that the city of Boston violated the First Amendment when it removed and censored a Christian flag in front of City Hall. Boston’s City Hall had allowed nearly 300 other flags from other groups but had banned a Christian group from raising its flag, citing the establishment clause and inviting a lawsuit. The unanimous ruling is a good one on many fronts.
As Lori Windham, attorney at Becket, tweeted, it communicates that “there’s a broad consensus on the Court that religion can’t be singled out for censorship, and … several justices are continuing to work toward overruling bad Establishment Clause precedents.”
Windham is referring to the “Lemon test,” which is related to a 1971 case in which the Supreme Court set forth several guidelines to determine whether or not something, such as a prayer on a football field or a flag on city property, truly violated the establishment clause. The Lemon test has led to many lawsuits because of its vague prohibition of government and religious interaction. Justice Antonin Scalia famously smeared the Lemon test as a “ghoul in a late-night horror movie” that “stalks our establishment clause jurisprudence.”
In his concurrence, Justice Neil Gorsuch did not hesitate to hide how much he loathes the Lemon test, writing, “To avoid a spurious First Amendment problem, Boston wound up inviting a real one. Call it a Lemon trade. While it is easy to see how Lemon led to a strange world in which local governments have sometimes violated the First Amendment in the name of protecting it, less clear is why this state of affairs still persists. Lemon has long since been exposed as an anomaly and a mistake.”
To see Justice Stephen Breyer, one of the more liberal justices on the court, write the opinion in this case, so clearly affirming both free speech and exercise, is encouraging.