University of Miami Law Review


Over half a century ago, the Supreme Court decided Lemon v. Kurtzman, the most controversial Establishment Clause case in judicial history. And despite the Lemon test’s constant criticism, the Court has never expressly overruled the decision in its entirety. This continues to be the case even after Kennedy v. Bremerton School District, in which the Court noted Lemon’s abandonment rather than its complete abrogation. As a result, lower federal district courts have been left in limbo regarding whether Lemon is fair game for any of their Establishment Clause determinations and have been inconsistent in using it as continued precedent. This is creating a quagmire of First Amendment decisions through- out the country in an area of law that is already a muddled mess.

Fortunately, this jurisprudential ambiguity no longer exists for those federal district courts in the Eleventh Circuit. Less than a month after the Kennedy decision, the Eleventh Circuit issued the clear guidance that the Supreme Court has perpetually failed to provide by expressly acknowledging the termination of the Lemon test in its jurisdiction in Rojas v. City of Ocala. In doing so, the Eleventh Circuit concurrently refused to accede to the Kennedy majority’s unsubstantiated claim that Lemon’s long abandonment was an uncontroverted part of the Court’s First Amendment jurisprudence. In doing so, the Circuit established a fitting end to the application of Lemon within its geographical jurisdiction while holding the Court accountable for its inaccurate statements about that case.

This Article argues that the Eleventh Circuit’s Rojas approach should become the standard bearer for other circuits’ post-Kennedy determinations on the official termination of Lemon in their jurisdictions. Given the Supreme Court’s continued failure to expressly overrule Lemon in its entirety, it has become incumbent upon the federal circuit courts to officially close this interpretive chapter to alleviate inconsistencies in one of the most divisive areas of constitutional law and to achieve efficiencies within their overwhelmed lower court dockets. As the judicial leader stepping into this void, the Eleventh Circuit has significantly contributed to clarifying a chaotic First Amendment doctrine. Consequently, the Rojas approach will prove to be an invaluable circuit breaker in the Establishment Clause jurisprudential canon.

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