I do not believe it can be successfully argued that the lemon test is not a logical and compelling test
of the separation between church and state; nor do I think it may reasonably be argued that "one nation
UNDER God" could ever hope to pass this test of constitutionality.
The Lemon test is not a principle contained in the constitution, it was an attempt by Warren Burger to create a rule of thumb to determine if a law, regulation, or government action violated his interpretation of the establishment clause. The rule is not the only one that has been used by courts, nor is the interpretation the rule was based the only possible interpretation.
I'm not saying the Lemon test is illogical or wrong, merely that it, and any decisions based on it are not unassailable. The idea that anything that does not pass the Lemon test is automatically unconstitutional is no axiomatic. The idea may be cogent and beneficial, but that doesn't add up to axiomatic, or "intellectually unassailable".
or a disavowal of the test in question.
OK I see that you sort of have my point covered. Except I was not outright disavowing the test, just expressing less then 100% confidence in it. Examining the idea further I think I would disavow the test as a standard for constitutionality, because I don't think it reflects the real meaning of "establishment of religion". But I would support it or something close to it as a standard to use when considering possible laws or government actions. I would put a lot more potential laws or government actions in this area under the category or "bad ideas", or even "potentially dangerous to religious liberty", then I would describe as "a clearly unconstitutional establishment of religion". I think the actual words of the constitution does not provide as for as great of separation between church and state as I would provide for if I where making policy myself.
If I agreed with the 9th circuit court that saying the recital of the pledge with the words "under God" amounted to coercion, then I would support the decision that it is unconstitutional. I can also say that if I was a member of congress, and the words "under God" where not yet in the pledge and the bill to add them was under consideration, I would not vote for it.
But I am speaking of the logic of the current understanding...not the logic which may be relevant to
any partisan interpretation which may be forthcoming.
Different people have different "current understandings". When I try to interpret the constitution I look first to the words of the constitution itself. If the meaning still seems unclear I would look to what seems most likely to be the original intent of the writers of the constitution. Legal doctrines created by court decisions over 200 years later are not an important part of my interpretations of the constitution. If I agree with the ideas, and think they are important, I might seek to have the ideas implemented as a matter of policy or law, or even as a constitutional amendment, but I wouldn't seek to write them in to the constitution by judicial decision if they are not clearly there already. I don't view a court's decisions or legal doctrines created by the court as being any more automatically correct then I do your opinions or mine. I recognize that judges (esp. at the Supreme Court level) are likely to be intelligent people with a great deal of understanding of the law, and I understand that the court's decisions will have a lot more practical effect on the nation's then the opinion of someone posting on SI, but I don't think they are infallible, or that their interpretations of the constitution are part of the constitutions essence, they are just opinions.
Tim |
