"This Lemon Comes as a Lemon" to be published in George Mason Civil Rights Law Journal

September 29th, 2009

I just accepted an offer to publish my article on the Lemon Test, titled This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose in the George Mason University Civil Rights Law Journal in Volume 20, Issue 3. The issue is slated to be released June 2010.

I originally wrote this paper for a First Amendment seminar I took at Mason, and became fascinated by the Lemon test. Justice Scalia so eloquently described the Lemon test in his dissent in Lamb’s Chapel.

“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 …. 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 …. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.”

This Article focuses on the first prong of Lemon, the “purpose prong.” This is the most seldom invoked aspect of Lemon, and I was astounded to find how little had been written on it. Hence, a niche! I explore how the Lemon test forces Judges to consider unreliable sources to ascertain a legislature’s purpose, namely legislative history. I also begin to explore my own theory I’m developing about the evolving nature of legislative history, and why some may be more reliable than others. Stay tuned for future works.

This may be particularly timely in light of Salazar v. Buono which is set for arguments at SCOTUS this term. And yes, the title is inspired by Justice Scalia’s admonition in Morrison v. Olson that “This wolf  comes as a wolf.”