It's Not Just the Test That's a Lemon, It's How Some Judges Apply It
May 1, 2005Robert D. Alt, Larry J. Obhof
On March 2, 2005, the United States Supreme Court heard two cases involving public displays of the Ten Commandments. These cases, appeals from ACLU of Kentucky v. McCreary County and Van Orden v. Perry, were the first time that the Supreme Court has specifically considered displays of the Ten Commandments on public property since 1980, and the first time that the Court has ever heard oral arguments on the issue. The Court will also address the continued vitality of the much-maligned Lemon test, the frequently criticized and sometimes ignored frame work that courts generally follow when determining whether governmental conduct is permissible under the Establishment Clause. Because the Court will consider not only whether the disputed displays are constitutional, but also the appropriateness of the analysis used in answering such questions, McCreary County and Van Orden could prove to be two of the most important Establishment Clause cases of the past 30 years.