Cite as: 512 U. S. 687 (1994)
Scalia, J., dissenting
Grendel's Den) is particularly noteworthy because all three courts below (who are not free to ignore Supreme Court precedent at will) relied on it, and the parties (also bound by our case law) dedicated over 80 pages of briefing to the application and continued vitality of the Lemon test. In addition to the other sound reasons for abandoning Lemon, see, e. g., Edwards v. Aguillard, 482 U. S. 578, 636-640 (1987) (Scalia, J., dissenting); Wallace v. Jaffree, 472 U. S. 38, 108- 112 (1985) (Rehnquist, J., dissenting), it seems quite inefficient for this Court, which in reaching its decisions relies heavily on the briefing of the parties and, to a lesser extent, the opinions of lower courts, to mislead lower courts and parties about the relevance of the Lemon test. Compare ante, p. 687 (ignoring Lemon despite lower courts' reliance), with Lamb's Chapel, supra (applying Lemon despite failure of lower court to mention it).
Unlike Justice O'Connor, however, I would not replace Lemon with nothing, and let the case law "evolve" into a series of situation-specific rules (government speech on religious topics, government benefits to particular groups, etc.) unconstrained by any "rigid influence," ante, at 721. The problem with (and the allure of) Lemon has not been that it is "rigid," but rather that in many applications it has been utterly meaningless, validating whatever result the Court would desire. See Lamb's Chapel, supra, at 399 (Scalia, J., concurring in judgment); Wallace, supra, at 110-111 (Rehnquist, J., dissenting). To replace Lemon with nothing is simply to announce that we are now so bold that we no longer feel the need even to pretend that our haphazard course of Establishment Clause decisions is governed by any principle. The foremost principle I would apply is fidelity to the longstanding traditions of our people, which surely provide the diversity of treatment that Justice O'Connor seeks, but do not leave us to our own devices.
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