Has the United States Supreme Court decided that it is time to stop persecuting Christianity?
Two recent decisions indicate that the answer may be a cautious “yes.”
The Lemon Test
On June 28, 1971, a liberal Supreme Court unanimously handed down its decision in the case of Lemon v. Kurtzman.
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At the time, Pennsylvania and Rhode Island were willing to assist religious schools in paying teachers. The Court found that idea unacceptable, cementing an injustice going back over a century. Even though parents of children in private and parochial schools pay school taxes, none of those taxes could help teach parochial school students.
The decision imposed a set of rules designed to separate Church and State further. It was called “The Lemon Test.”
The Test had three requirements. Failure to meet any of the three meant that a law or program was unconstitutional and could not be supported. Any government action must:
- Have a secular (non-religious) purpose,
- Not advance or restrain any religion, and
- Not entangle the government in a religion or religious activity.
For decades, the “Lemon Test” reigned supreme. Even though the Supreme Court would alter it as time passed, the nation’s schools of education etched it in stone when presenting it to budding teachers and administrators. The Court seemed to say that America’s children needed special protections against Christianity that they didn’t need in any other aspect of life.
Nine years later, in 1980, the Court applied that Lemon standard to the State of Kentucky in a high-handed manner—even for the Supreme Court.
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In 1978, Kentucky Legislature required the posting of the Ten Commandments in every public school classroom. Anticipating that the same forces that removed prayer in schools would object, the legislature wanted to show that displaying the commandments had a secular purpose. Therefore, the display included the statement, “[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.”
By a 5-4 vote, the Supreme Court threw out this statute in 1980. However, in a sharp departure from usual practice, the Court decided the case without soliciting briefs from affected parties or holding oral arguments. Its primary justification was the first prong of the Lemon Test.
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The majority defended its ruling with a written opinion.
“The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.
“Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might batter of private devotion, it is not a permissible state objective under the Establishment Clause.”
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Fortunately, the current Supreme Court is abandoning the Lemon Test. Of course, the Court will not say that in so many words. However, the direction is clear. This assertion is justified by two cases—Kennedy v. Bremerton School District (2021) and Shurtleff v. Boston (2022).
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The Kennedy case involved a high school football coach who prayed for a moment after each game. At first, this was no issue. However, after a while, some players began to join Coach Kennedy’s prayer. The school system warned the coach that he needed to desist. The argument came from the Lemon case. According to the administrators, a school employee praying openly on a publicly-owned football field “entangled” the school system in religious activity. When Coach Kennedy refused to stop praying, he was fired.
The coach argued that he had a right to practice his religion. He did not force—or even encourage—the players to join him. They did so of their own free will—which was also their right.
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Had the Supreme Court wanted to reinforce the Lemon decision, it could have easily done so. All it needed to do was support the school district’s argument.
However, the Court ruled in favor of Coach Kennedy, and in no uncertain terms.
“The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.”
The Boston Flagpole Case
The Shurtleff decision was more complicated and less publicized. However, it, too, weakens the Lemon decision.
Boston has three flagpoles in a plaza in front of its City Hall. The first flies the flag of the United States with a smaller “POW-MIA” flag below it to commemorate the sacrifices of the nation’s missing warriors. The second flies the flag of the Commonwealth of Massachusetts. Typically, the third flies the flag of the City of Boston.
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The controversy centers around this third flag pole. Occasionally, the city allows organizations to hold ceremonies in the plaza. At such times, the organization’s flag customarily replaces that of the city during the ceremony. In fact, between 2005 and 2017, roughly fifty different groups flew their flags on 284 occasions.
In 2017, an organization called Camp Constitution wanted to hold such a ceremony. Among others, Camp Constitution emphasizes religious rights. Therefore, it wished to fly a religious banner from the third flagpole during their ceremony. On the premise that flying such a flag from the city hall flagpole promoted religion, the city denied that permission.
Again, had the Supreme Court wanted to sustain the Lemon decision, all it had to do was to agree with the city. It did not.
The Court found that using the flagpole for other non-government purposes meant that “Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment.”
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In addition to the Court’s decision to reverse the disastrous Roe v. Wade decision, these developments are most heartening. For decades, the Court appeared to enforce Thomas Jefferson’s idea of a mythical wall of separation between Church and state. In fact, through policy and taxes, the state dominated. The majority of the Court’s current justices appear at least willing to consider religion and religious people as a legitimate part of American society with their own rights.
In both cases, we see that, when Christians enter the fray, they can expect Divine assistance despite the odds.
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