Easter eggs and the ‘Lemon test’

OPINION:

The White House found itself in hot water over Easter weekend after media reports claimed that the Biden administration had banished religious themes from its annual children’s Easter egg decorating contest.

But as quickly as the story surfaced, fact-checkers cleared the White House of wrongdoing. Apparently, they claimed, the policy banishing “religious themes” — i.e., the actual reason for Easter — didn’t come from the president, but from something called the American Egg Board. And the “nondiscrimination” policy ensuring that a nefarious cross or drawing of Jesus didn’t wind up on a child’s egg has been around for over 40 years.  

The fact that we have an Egg Board — a government-created program falling under the auspices of the Department of Agriculture — is a different conversation. What is known is that the egg decorating contest has been around for decades, and designs are submitted on paper by the children of National Guard members. The flyer promoting this year’s contest said, “Selected designs representing the unique experience and stories of National Guard children will be brought to life on real hen eggs by talented egg artists from across the country and displayed at the White House this Easter and Passover season.”

All good. Anything that provides an opportunity for our military families to be recognized should be celebrated.  

Along with other restrictions, however, the Egg Board prohibits designs that “include any questionable content, religious symbols, overtly religious themes, or partisan political statements.”

Easter without religion. Cue the bunnies.  

It’s possible, though, that the Egg Board’s banishment of religious-themed Easter egg designs comes from the government’s decades-long knee-jerk fear that allowing any religious expression is prohibited by the First Amendment’s establishment clause.

For the 40-plus years the egg contest has existed, government entities such as the Egg Board could justify excluding religious expression because of a 1970s Supreme Court case that created what became known as the “Lemon test.” Under that ruling, anything that might be seen as “advancing” religion or “excessively entangling” government and religion was forbidden.

The test quickly became a convenient way for the government to banish religious symbols and speech from the public square. Nothing was sacred, from 100-year-old veterans memorials shaped like crosses to a coach’s personal prayer after football games.

Under Lemon, the Egg Board had its scapegoat.

But in 2022, the Supreme Court tossed the Lemon test onto the ash heap of history. In Kennedy v. Bremerton School District, the justices clarified: “This Court long ago abandoned Lemon and its endorsement test offshoot. … In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”

In his majority opinion in that case, Justice Neil Gorsuch said: “The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike. … That the First Amendment doubly protects religious speech is no accident. It is a natural outgrowth of the framers’ distrust of government attempts to regulate religion and suppress dissent.”

Yet old policies or prejudices don’t disappear overnight. Bureaucrats are loath to change. So the Egg Board has kept its prohibition on religious-themed artwork at Easter, and controversy ensued. Partisan bickering took over, with little or no discussion of where the policy came from or why. 

Hopefully, that will change.  

Now that Lemon is gone, the government no longer needs to fear that allowing the child of a National Guard member to submit a picture of a cross at Easter threatens the foundations of the republic. Children of Americans who celebrate the resurrection of Christ at Easter can and should be free to submit their egg drawings, even if they include a cross or Christ.

• Lea Patterson is senior counsel for the First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all. Learn more at FirstLiberty.org.