goddamn my fetish with witty republicans
Like my friends who have recently quoted to their favorite case...this one has a soft spot with me because my first year brief was about the Pledge of Allegiance case (Newdow) and, of course, i had to add the obligatory reference to the Lemon test.
Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).
Scalia's dissent:
As to the Court's invocation of the Lemon test: 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. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman, 505 U.S. 577, 586-587, 120 L. Ed. 2d 467, 112 S. Ct. 2649 (1992), conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally 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....When we wish to strike down a practice it forbids, we invoke it...; when we wish to uphold a practice it forbids, we ignore it entirely.... Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts".... Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
Scalia's favorite movie.
Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).
Scalia's dissent:
As to the Court's invocation of the Lemon test: 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. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman, 505 U.S. 577, 586-587, 120 L. Ed. 2d 467, 112 S. Ct. 2649 (1992), conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally 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....When we wish to strike down a practice it forbids, we invoke it...; when we wish to uphold a practice it forbids, we ignore it entirely.... Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts".... Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
Scalia's favorite movie.
posted by mjs at
7:47 PM
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