parallel the conclusions of the Court of Appeals below "that factual specifics and context are nearly everything when it comes to applying the Establishment Clause to religious symbols and displays." Glassroth, 335 F.3d at 1300 (App. 38a). As the Third Circuit Court of Appeals has observed:
B. The Lemon Test Undermines The Rule Of Law.
Even when the lower federal courts have attempted to apply a legal test to resolve an Establishment Clause case, they have found a "cherry-picking" array of choices. In Stone v.
355 (4th Cir. 2003). The Court of Appeals for the Third Circuit, however, has even modified this Court's two-step Lemon test, reducing it to one: whether a Ten Commandments display constitutes an endorsement of religion. See Freethought Soc. of Phila., 334 F.3d at 258. In effect, so has the Court of Appeals below, giving lip-service to the classic three-part Lemon test, but conducting plenary review only of the "endorsement" prong. 335 F.3d at 1297 (App. 31a-32a).
C. The No Endorsement Test Violates Free Exercise .
According to the Court of Appeals below, the Plaintiffs in this case—all lawyers—were "offended," made to "feel like outsiders," and, as a consequence, two of the three "altered their behavior" because of "the wound ... inflicted [ them] by the monument itself," not because they disagreed with the Chief Justice's "views about religion and government." Glassroth, 335 F.3d at 1293 (App. 22a). But, in another part of its opinion, the Court of Appeals found the monument was inseparable from the Chief Justice's views! Since the monument was so inseparable from the Chief Justice's religious views, it is impossible for anyone to conclude that any one of the three Plaintiff-lawyers' claimed offense and hurt feelings were the consequence of anything other than the observation of the Chief Justice's "religious views" with which each disagrees. See 335 F.3d at 1292-93 (App. 20a-23a).
By sustaining the Plaintiffs' standing in this case, then, the Court of Appeals has enabled Plaintiffs to parlay their hurt "feelings" into judicial imposition of second-class citizenship upon Chief Justice Moore because he has "religious views" of law and government. After all, had the Chief Justice had "secular" views of how justice should be administered, and pursuant thereto had erected a monument dedicated to the works of Oliver Wendell Holmes, no plaintiff could have sustained access to a federal court even if they were "offended" and made to "feel like outsiders" by Holmes' legal positivist views. Thus, by affirming Plaintiff-lawyers' standing in this case and finding that the Chief Justice has "endorsed" a theistic view of the moral foundation of law, the Court of Appeals has effectually imposed a "religious test" upon Chief Justice Moore. After all, if the Chief Justice held to a more pluralistic view, erecting a monument that identified God as only one of many sources of law, the District Court would apparently have
found the monument to have a secular purpose and to not be an "endorsement of religion," and the Court of Appeals would have affirmed. See 229 F. Supp. 2d at 1299 (App. 58a-60a); 335 F.3d at 1296-97 (App. 28a-32a).
Warning against such misuse of the Establishment Clause, Justice Brennan opined that under the Free Exercise Clause:
Government may not inquire into the religious beliefs and motivations of officeholders—it may not ... question whether their ... actions stem from religious conviction.... In short, government may not as a goal promote "safe thinking" with respect to religion and fence out from political participation those ... whom it regards as overinvolved in religion.... The Establishment Clause may not be used as a sword to justify repression of religion or its adherents from any aspect of public life.
D. The Lemon Test Undermines The Tenth Amendment.