_B_,
I personally find Scalia's assault of the Lemon test in the following dissent to be even more enjoyable:
"As to the Court's invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening thelittle children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: our decision in Lee v. Weisman, 505 U. S. ----, ---- (1992) (slip op., at 7), conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. See, e. g., Weisman, supra, at ---- (slip op., at 14) (Scalia, J., joined by, inter alios, Thomas, J., dissenting); Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 655-657 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part); Corporation of Presiding Bishop of Church of Jesus Christ of Latter day Saints v. Amos, 483 U.S. 327, 346-349 (1987) (O'Connor, J., concurring); Wallace v. Jaffree, 472 U.S. 38, 107-113 (1985) (Rehnquist, J., dissenting); id., at 90-91 (White, J., dissenting); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 400 (1985) (White, J., dissenting); Widmar v. Vincent, 454 U.S. 263, 282 (1981) (White, J., dissenting); New York v. Cathedral Academy, 434 U.S. 125, 134-135 (1977) (White, J., dissenting); Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 768 (1976) (White, J., concurring in judgment); Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 820 (1973) (White, J., dissenting).
The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e. g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e. g., Aguilar v. Felton, 473 U.S. 402 (1985) (striking downstate remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts," Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him."
Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist. (91-2024), 508 U.S. 384 (1993).
