The Nine [52]
By the midnineties, the issue was settled. According to the standards of Supreme Court litigation, Sekulow had emerged out of nowhere to revolutionize an important rule of law. As a result of his efforts, it was clear that if a school, airport, or other public forum was going to open up its facilities to some individuals or groups, the authorities couldn’t exclude religious speakers from the list. This was an important victory, but the evangelical agenda extended a great deal further. With Republicans now in control of both the House and the Senate (and many state houses), there was suddenly a real possibility that governments might begin subsidizing religious activities. Gingrich and others made plain that they believed churches did a better job of delivering all kinds of government services—from job training to running schools and prisons—than traditional official bureaucracies. They wanted the federal government not merely to permit these activities but, if possible, to encourage and pay for them as well. The question, then, was whether these ever-closer ties between church and state would be approved by the Supreme Court.
The answer would likely turn on a bland phrase that blossomed into one of the most controversial issues of the Rehnquist years—“the Lemon test.” The phrase dated to Lemon v. Kurtzman, a 1971 opinion by Chief Justice Burger. As the term evolved through the years, it meant that any law that involved church and state functions had to meet three criteria to be constitutional. The law had to(1) have a secular purpose, (2) neither advance nor inhibit religion, and (3) avoid excessive “entanglement” of government and religion. Over the years, the Court has proposed many such “tests,” which usually prove easier to announce than apply. That was true for Lemon as well. When it came to church and state, the real rule on the Rehnquist Court was simpler. As with so many other areas of the law, like abortion, it was O’Connor’s vote that made the difference. If she thought a law was constitutional, it was; if not, it wasn’t.
For Scalia, the Lemon test epitomized everything he loathed about modern constitutional law, and about O’Connor’s jurisprudence in particular. “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 of Center Moriches Union Free School District,” he wrote memorably in a concurring opinion in Lamb’s Chapel. In Scalia’s view, Lemon gave judges virtually unlimited discretion to resolve cases according to what seemed fair to them. In contrast, Scalia wanted judges to apply clear rules, dictated by the intent of the framers, and the long history of entanglement between religion and American public life gave him a rich lode of material for his originalism. Prayer in schools, religious displays like crèches on government land, public celebrations of God and his works—all had been present at the time of the framers and should be allowed today, according to Scalia. He believed that the framers meant the Establishment Clause merely to prohibit the creation of a single state religion or government action that favored one religion over another; as for other government activities that endorsed religion generally or aided all religions equally, that was entirely appropriate. In the words of the dreaded Lemon test, Scalia believed that the Constitution not only permitted but encouraged