Citing Scalia’s concurrent opinion on the larger Lemon test in 1993’s Lamb’s Chapel vs. Center Moriches Union, Thomas said the distilled Lemon/endorsement test continues to stalk “our establishment clause jurisprudence” 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.”
“Since Van Orden and McCreary, lower courts have understandably expressed confusion,” Thomas argued, adding: “This confusion has caused the circuits to apply different tests to displays of religious imagery challenged under the establishment clause. Some lower courts have continued to apply the Lemon/endorsement test. Others have followed Van Orden. … One circuit, in a case later dismissed as moot, applied both tests.”
Thomas argued, “Since the inception of the endorsement test, we have learned that a creche displayed on government property violates the establishment clause, except when it doesn’t.”
In one case, a high court majority held “unconstitutional a solitary creche, surrounded by a ‘fence-and-floral frame,’ bearing a plaque stating ‘This Display Donated by the Holy Name Society,’ and located in the ‘main,’ ‘most beautiful,’ and ‘most public’ part of a county courthouse”; in another a court majority held “unconstitutional a creche consisting of ‘large figures, easily visible and illuminated at night,’ bearing a disclaimer reading ‘Sponsored and maintained by Charlottesville-Albemarle Jaycees not by Albemarle County,’ and located on the lawn of a county office building.”
Then in Lynch a majority upheld “a creche displaying 5-inch to 5-foot tall figures of Jesus, Mary, Joseph, angels, shepherds, kings, and animals, surrounded by ‘a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that [read] ‘SEASONS GREETINGS,’ situated in a park in the ‘heart of the shopping district.'”
And in 1990 a majority upheld “a 15-foot stable ‘furnished with a manger, two large pottery jugs, a ladder, railings, and some straw, but not with the figurines or statues commonly found in a … creche,’ bearing a disclaimer stating that ‘This display … does not constitute an endorsement by the commonwealth of any religion,’ and located on the grounds of the state capitol, 100 yards from a Christmas tree,” Thomas said, citing other examples.
Thomas offered similar examples for a menorah, the Ten Commandments and a cross, each of which he said violates the establishment clause, “except when it doesn’t.”