Scalia’s Tale From the Crypt Adds Sour Note to School Rule

When it comes to expressing his conservative views and his opinions of his colleagues’ opinions, Justice Antonin Scalia often delights in an acerbic irreverence that contrasts sharply with the solemn tones of most Supreme Court opinions.

And Monday’s decision in a New York case saw Scalia at the top of his game. At issue was the First Amendment ban on government action that promotes an “establishment of religion”--in this instance a question of whether a public school could let a religious group use its auditorium. The majority upheld the religious group’s position by applying a time-honored but admittedly hazy formula known as the “Lemon test,” so named because it was first cited in Lemon vs. Kurtzman in 1971. Under that test, a government policy affecting religion is constitutional if it has a “secular purpose,” does not “advance or inhibit religion” and does not foster “an excessive entanglement” between church and state.

Scalia liked the outcome of the school ruling, but invocation of the Lemon test--which he would abolish--moved him to characteristically colorful hoots of derision:

“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 little children and school attorneys. Its most recent burial, only last term, was, to be sure, not fully six feet under. . . . Over the years, however, no fewer than five of the current sitting justices have, in their own opinions, driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so. . . . The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.”

Replying via a footnote in his majority opinion, Justice Byron R. White said that “while we are somewhat diverted by Justice Scalia’s evening at the cinema,” the question of the Lemon test need not be decided in Monday’s case.