Within the past two weeks, two different federal district courts within the 4th Circuit have reached polar opposite conclusions as to the validity of President Trump’s revised executive order on immigration (EO2). This is not necessarily surprising, given that the lawsuits raised multiple theories as to why EO2 should be declared invalid. But it is quite disturbing to discover that in fact, the two courts reached opposite conclusions on the exact same legal claim, after examining identical evidence.
Perhaps even more disturbing is the fact that the Maryland court declared EO2 unconstitutional not because of a misapplication of federal immigration law or even because it found discrimination under the Equal Protection Clause, but rather because the court determined that through the order, President Trump created an unconstitutional “establishment” of religion under the First Amendment.
Now, I don’t like to say “I told you so,” but … In a column last month, I warned readers that the wrecking ball of Supreme Court Establishment Clause precedents could only bring disaster to the realm of national security. My primary concern then was the 9th Circuit’s allusion to the disastrous “Endorsement Test,” under which government policies are judged legal or illegal based upon whether they may hurt someone’s feelings. But as I also pointed out, the more pedigreed “Lemon Test,” applied by both the Virginia and Maryland district courts in these two recent decisions, is equally disastrous.
One of the reasons legal scholars and judges have roundly criticized the three-pronged Lemon Test is because it is utterly unreliable as a set of principles that can be applied objectively to produce consistent and correct decisions. As the late Justice Scalia pointed out, “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 sign posts.’” The Lemon Test is so unhelpful and subjective that lower courts don’t so much apply it to determine whether a policy is constitutional, as they mold it to fit their judgment as to whether the policy is constitutional.
These two decisions on EO2, reaching opposite conclusions on identical claims after applying identical evidence, are irrefutable proof that the three-pronged Lemon Test is worthless as an objective guide. For not only did the two courts applying identical evidence reach opposite conclusions on identical claims, but their conclusions rested on exactly the same prong of the Lemon Test – the first prong, requiring the government policy to have “a secular purpose.”
Now, the idea that EO2 has no secular purpose is laughable to the casual observer. Obviously, the secular purpose of EO2 is national security – it says so right in the document. But you see, the Federal District Court for the District of Maryland is no casual observer. It is a Lemon Test Applier. So while that court “should not, and will not, second-guess the conclusion that national security interests would be served by the travel ban,” it went on to divine that a “religious purpose” was primary, thus producing an Establishment Clause violation.
The court reasoned that President Trump’s pre-election statements, which sometimes included the phrase “Muslim ban,” have forever tainted any immigration-related order affecting Muslims with a predominating “religious purpose.” In other words, under this court’s interpretation of the Lemon Test’s “secular purpose” requirement, a policy is an unconstitutional “establishment” of religion if any religion has, at any time, been mentioned in association with the policy – notwithstanding any obvious secular purpose that is acknowledged by the court.
This extreme application of an already-fraught analysis is particularly problematic in the context of our current reality, which features the constant threat of terrorism by religiously motivated, radicalized Muslims. Any court-crafted “test” that equates recognition of this reality with an unconstitutional establishment of a national religion is a test that belongs in the annals of overturned precedents.
The late Justice Scalia lamented that the Supreme Court’s past attempts at burying the Lemon Test had left it less than a full six feet under. One can only hope that these recent inconsistent rulings will compel the court to take up its spade for a more complete and effective burial. Because unless we bury Lemon, Lemon may bury us.