Hot Docs: Asking for a Referendum on Lemon?

February 24, 2011

Lemon testThe current Establishment Clause jurisprudence is anything but simple.

Just look at the recent Catholic League v. San Francisco opinion.

The case dealt with a non-binding resolution made unanimously by the San Francisco Board of Supervisors condemning Cardinal William Levada’s directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.

The Catholic League for Religious and Civil Rights, a Catholic advocacy and civil rights organization, along with two Catholic residents of San Francisco, sued the city claiming the resolution violated the Establishment Clause of the U.S. Constitution.

Hot Doc: Catholic League for Civil and Religious Rights v. San Francisco

Source: Westlaw News & Insight – National Litigation

After the lower court ruled for the city and the Catholic League appealed, a fractured en banc opinion was published, addressing the issue of standing in addition to the merits of the case.

Three justices found that the plaintiffs had standing and should prevail on the merits; three judges found that the plaintiffs had standing and should not prevail on the merits; and five judges found that the plaintiffs lacked standing and thus did not reach the merits of the claim.

However, since a majority of the 11 justices found the plaintiffs to have standing, a decision needed to be reached on the case’s merits, which a separate majority, using the Lemon test, found in favor of the city.

The Lemon test, originating in Lemon v. Kurtzman (403 U.S. 602 (U.S. 1971)), gives a three-pronged test for determining whether state action has violated the Establishment Clause.

While the case has been the controlling law on Establishment Clause claims for 40 years, it has been selectively followed in subsequent Supreme Court cases, and heavily criticized by conservative groups, scholars, and justices as being, among other things, anti-religious.

Echoing (indeed, directly citing) much of that sentiment is the Catholic League’s Petition for Writ of Certiorari to the Supreme Court, filed on February 15, 2011.

The petition essentially calls for the Supreme Court to come up with a new test to replace Lemon’s, calling the latter “unworkable” and producing “silly” results.

Perhaps to better drive this point home, the petition asserts that the Lemon test here has found constitutional the “City’s anti-Catholic resolution.”

While a terribly small minority of cases seeking certiorari actually get it (it’s somewhere in the neighborhood of 1.1%), this case, with its constitutional undertones, would seem a likely candidate.

If taken, the Supreme Court could overrule Lemon, affirm it, or simply punt the issue by declaring this circumstance an obscure exception.

What do you think?  Is this case prime SCOTUS fodder?  Was San Francisco being discriminatory in its passing the resolution?  Is Lemon overdue for an overhaul?

For more current “Hot Docs” like this one, plus timely news and analysis of litigation developments around the country, be sure to check out the Westlaw News & Insight – National Litigation website.