Last week during oral argument in Kennedy v. Bremerton School District, Paul Clement urged the Court to overrule Lemon. Even if American Legion effectively limited Lemon to a very narrow subset of cases, lower courts, and more importantly, government officials, continue to cite Lemon. But why? Justice Gorsuch's concurrence in Shurtleff offers a theory: Lemon allows government officials to reach the result they want. Lemon is like a video game!
Ultimately, Lemon devolved into a kind of children's game. Start with a Christmas scene, a menorah, or a flag. Then pick your own "reasonable observer" avatar. In this game, the avatar's default settings are lazy, uninformed about history, and not particularly inclined to legal research. His default mood is irritable. To play, expose your avatar to the display and ask for his reaction. How does he feel about it? Mind you: Don't ask him whether the proposed display actually amounts to an establishment of religion. Just ask him if he feels it "endorses" religion. If so, game over.
And, invariably, when playing the Lemon game, judges can select the "reasonable observer" that feels the utmost umbrage:
