OK, I confess. I have long been a fan of the Supreme Court’s Establishment Clause jurisprudence, warts and all. The Lemon Test…cool. The Endorsement Test…it’ll do. But with Salazar v. Buono, Scotus has jumped the shark. Sure, Stevens and the girls are holding onto the old regime for dear life–in the minority. Breyer, also in the minority, seems anxious mostly to slice the particulars of a case so fine, procedurally or substantively, as to to preclude further discussion.
Meanwhile, on the majority side, Scalia is intent on permitting religious establishments by denying standing to anyone disposed to challenge them. Thomas, we know, wants to dis-incorporate the religion clauses from the 14th Amendment, thereby permitting states to do whatever they want, just the way the founders arranged it. But since this was a federal case, he went with Scalia. Kennedy, for his part, is prepared to make tortured arguments about why religion isn’t religion–joined by Roberts and Alito, who seem unconcerned about anything other than letting little establishments stand.
One can fairly ask: What would the conservatives like, if they had their druthers? My guess is that they’d turn government space like public schools and courthouses and land into public forums, where any and all actors–including public officials–are free to exercise their religious views. But Kennedy isn’t ready to go that far.
When there’s no consensus on what the standard of review is, chaos ensues. And that’s where we are now, with little prospect for change any time soon.