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I think it's been clear for a long while that
when the Court cites the Lemon test, it's almost an afterthought
-- a pro forma doctrinal appendage or a fig leaf. (This was especially
true in Amos, I think.) That's why many folks who brief
these cases to the Court -- Doug and I included -- choose not to rely on the
Lemon framework: It doesn't really get at what's going on in
the cases, not even at a doctrinal level, and thus doesn't helpfully "speak" to
the Court. The one very significant exception, I think, is the narrow
line of cases (e.g., Edwards v. Aguillard) that can best
be explained with reference to the first (purpose) prong of
Lemon.
----- Original Message -----
Sent: Tuesday, May 31, 2005 1:28 PM
Subject: RE: RLUIPA Unanimously Upheld in
Cutter
I see no interment. They have ignored it before,
and then returned to it when they thought it helpful. This opinion
relies on Amos, and Amos marches through the Lemon
test, so it may just be that they have more specific doctrine to work with on
this issue.
Douglas Laycock
University of Texas Law
School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341
(phone)
512-471-6988
(fax)
Time for another AALS panel writing the obit for Lemon? :)
Steve
On May 31, 2005, at 12:12 PM, Stuart BUCK wrote:
So has the Lemon test been interred, or not? Compare footnote 6 of the majority
("We resolve this case on other grounds."), with Thomas's footnote 1 ("The
Court properly declines to assess RLUIPA under the discredited test of Lemon
. . . .").
Best,
Stuart Buck
--
Prof. Steven D. Jamar
vox:
202-806-8017
Howard University School of Law
fax: 202-806-8428
2900 Van Ness Street NW
mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar
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Therefore, we are saved by hope.
Nothing true or beautiful or good makes complete
sense in any immediate context of history;
Therefore, we are saved by faith.
Nothing we do, however virtuous, can be
accomplished alone.
Therefore, we are saved by love.
No virtuous act is quite as virtuous from the
standpoint of our friend or foe as from our own;
Therefore, we are saved by the final form of love
which is forgiveness.
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