June 29, 2022
Another important aspect of this case is how the majority abandons the “Lemon test” approach to religious liberty found in Lemon v. Kurtzman, a case from 1971. This test examined whether a statute or government action could be seen to have a secular purpose, whether its principal effect was aiding or inhibiting religious practice, and whether it produced excessive government entanglement with religion. If the program failed under any one of these three prongs, it violated the Establishment Clause. Over the years, this framework did a very poor job of helping the justices analyze issues related to the separation of church and state. It has been called “bad law” and “like some ghoul in a late-night horror movie” by Supreme Court conservatives Clarence Thomas and the late Antonin Scalia. Justice Gorsuch seems to be leading the Court into a new era of protecting religious liberty and local traditions from government encroachment. We laud the Court for its efforts to ensure that religious practice is protected and prayer continues to be allowed in public, as the framers intended.
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