The Supreme Court’s decision to gut the Lemon Test may lead to a government-sponsored Christian prayer vigil being declared legal. More specifically, the 11th Circuit Court of Appeals has vacated an earlier (sensible) decision that respected church/state separation. What happens now is anyone’s guess.
This saga began in 2014, when Greg Graham, chief of the Ocala Police Department in Florida, posted an unusual letter to the department’s Facebook page. Co-signed by community development director for the Ocala/Marion County Family YMCA Narvella Haynes, the letter called for public prayer after a particularly troubling string of crimes in which children were injured:
We are facing a crisis in the City of Ocala and Marion County that requires fervent prayer and your presence to show unity and help in this senseless crime spree that is affecting our communities.
I am urging you all to please support a very important “Community Prayer Vigil” that will be held this coming Wednesday, September 24, 2014 at 6:30 pm to be held at our Downtown Square located in the heart of the City.
There was something seriously messed up about a Chief of Police suggesting the best solution to stop crime was prayer, as if the only alternative was waving a white flag. He could have asked the community to report suspicious activity, or called on politicians to enforce tougher gun safety laws, or asked for more funding for the police department, or (thinking long-term) looked for ways to get people out of poverty so some of them didn’t feel the need to resort to crime.
There may have been value to having members of the community unite toward a common cause, but promoting prayer (and make no mistake—this was always about Christian prayer) was more divisive than anything else. More importantly, this wasn’t some grassroots push for prayer led by citizens. It was a top-down call for Christianity to solve secular problems with uniformed chaplains lending their authority to the event.
The American Humanist Association soon wrote a letter to the Chief, calling on him to remove the prayer request from the department’s page and asking for reassurance that the police department wouldn’t be participating in the event. (Individual officers could always go on their own time, but it’s a different story when a government entity itself promotes religion.)
Nothing ever came of that request. The original post is still (!) up on the police department’s Facebook page and they ultimately participated in the prayer vigil.
Shortly afterwards, when a local resident complained about this to Ocala’s Mayor Kent Guinn, the mayor responded by saying the actions were justified because “We open every council meeting with a prayer. And we end the prayer in Jesus name we pray. [O]ur city seal says ‘God be with us’ and we pray that he is and us with him.”
Way to miss the point.
After all those warnings were rebuffed, the AHA filed a lawsuit against the department in November of 2014, claiming this was a constitutional violation. They noted the department’s support for the “revivalist” event, where officers “prayed, sang religious songs and delivered Christian sermons.” They cited the Facebook post announcing the event, which was written on official department letterhead and signed by both the police chief and a local Baptist leader.
The case took a number of twists and turns regarding who had legal standing to file the lawsuit, but in 2016, U.S. District Judge Timothy J. Corrigan issued a ruling confirming the AHA’s strongest arguments.
“In sum, under the Establishment Clause of the First Amendment to the United States Constitution, the government cannot initiate, organize, sponsor, or conduct a community prayer vigil,” explained Judge Corrigan. “That is what happened here.”
“Police departments shouldn’t be endorsing religion, yet that’s exactly what the Ocala Police Department did here by sponsoring and promoting a prayer vigil,” said David Niose, AHA legal director. “We hope this ruling ensures that prayer rallies in the future will be run by churches, not police departments.”
In justifying his decision, Judge Corrigan explained that Establishment Clause cases relied on the application of the Lemon Test, basically a three-prong approach to assess whether government action goes too far when it comes to religion. It says a statute must have a secular purpose, neither advance or prohibit religion, and avoid “excessive government entanglement” with religion.
When it came to Ocala, the prayer vigil obviously had a religious purpose. The judge also said it could “hardly be thought to be anything other than an endorsement of religion.” Since the police department invited the community to attend the prayer vigil, there was entanglement. Given the formal involvement of the police chaplains, “the entanglement was excessive.”
Failure of any one of the prongs would have been enough for a judge to declare the event illegal.
It failed all of them.
The end result was that the plaintiffs received a total of $6.00, one dollar from each of the two defendants, since it was never about the money. The taxpayers of Ocala were also on the hook to pay the legal bills for the AHA.
That should have been the end of the story.
But the right-wing American Center for Law and Justice appealed the decision to the 11th Circuit Court of Appeals. Using phrases like “cancel culture,” they argued that the atheists were trying to “shut down protected First Amendment gatherings.” Specifically, a response brief filed last year said that participating in the prayer vigil was legal because there was no evidence of coercion, there was no evidence of a lack of neutrality, the plaintiffs lacked standing, and the Establishment Clause was on their side… all of which were fairly laughable arguments, largely because they implied a government endorsement of Christianity was only illegal if people were forced to participate.
By that same logic, every police department in the country could hang a giant cross on their front door and put a Ten Commandments display in the lobby, but none of that would count as promotion of Christianity unless someone explicitly said so or required new employees to adopt the religion.
If we were talking about any other religion besides Christianity, these actions would’ve been stopped years ago, but conservative Christians believe neutrality is persecution, and they just can’t handle anyone complaining about them treating their faith as the default option for everyone in the community.
That brings us to the ruling issued on Friday by the 11th Circuit judges.
When it comes to the question of whether the City of Ocala violated the Establishment Clause, like the district judge said, this court responded with—and I quote—”Maybe.”
The bottom line, the appellate court says, is that Judge Corrigan used the Lemon Test as his standard for deciding whether the prayer vigil had crossed the line. But the Supreme Court said in the Kennedy v. Bremerton case—the one about the high school football coach who performed prayers at midfield after games—that the Lemon Test was officially dead… which means it can no longer be the standard. (In their explanation, they refer to a line written by the late Justice Antonin Scalia about how the Lemon Test is like a “ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”)
After this appeal was filed, however, the Supreme Court drove a stake through the heart of the ghoul and told us that the Lemon test is gone, buried for good, never again to sit up in its grave. Finally and unambiguously, the Court has “abandoned Lemon and its endorsement test offshoot”… In the course of doing so, the Court asserted that it had already done it — “long ago”… — which was news to a third of the Court’s Justices…
Regardless of exactly when the ghastly decision was dispatched for good, the Supreme Court has definitively decided that Lemon is dead — long live historical practices and understandings.
We remand this case to the district court to give it an opportunity to apply in the first instance the historical practices and understandings standard endorsed in Kennedy.
Simply put, the earlier decision relied on the Lemon Test, but because that test can no longer be used, the district court needs to re-evaluate the legality of the prayer vigil using tradition as the standard. “Tradition,” of course, tends to favor Christianity at the expense of everyone else, which is why conservatives love it.
It’s possible Corrigan could still say the vigil was illegal, but to do so, he’ll need to explain why the police department was promoting Christianity in a way that goes far beyond a historical practice.
More broadly speaking, though, what we just witnessed was a very clear-cut violation of church/state separation. It was so obvious that the prayer vigil failed every single prong of the Lemon Test. But the ultra-conservative Supreme Court has now decided that the Lemon Test itself is dead, making it much harder to prove when government actions violate the Establishment Clause.
Professor Caroline Mala Corbin, of the University of Miami School of Law, said in an email that we haven’t seen the last of these kinds of rulings after the death of the Lemon Test.
Although the Lemon test was much maligned by many Justices, its requirement that laws must have a primarily secular justification was essential to protecting against a union of church and state.
Now, governments need not even bother offering a secular reason for their laws and actions. Instead, they can be motivated by one set of religious beliefs, and the courts will not bat an eye. Nor will courts ask whether the effect of the government actions is to place one religion over others.
The end result in most places in the United States is that governments will support and favor Christianity at the expense of people who do not share that faith.
The easiest way for police departments to promote Christian prayer vigils, from now on, is to make them a regular occurrence. If they take place frequently enough, judge could simply say they’re part of a “tradition,” ignoring any complaints from the church/state separation crowd.
It’s a disaster in the making, and this is only one of the first dominoes to fall.
(via Religion Clause. Portions of this article were published earlier)