The guiding principle is government neutrality toward religion in the sense that a state cannot favor religion over non-religion or one religion over another. Yet neutrality is not self-defining. It does not demand that the state be blind to the pervasive presence of strongly held views about religion with myriad faiths and doctrines. Nor could it do so. Religion and government cannot be ruthlessly separated without encountering other First Amendment constraints, including its guaranty of the free exercise of religion.
Such hostility toward religion is not only not required; it is proscribed.9 Justice Kennedy’s observation in Allegheny bears emphasis: it is not the case that the Establishment Clause is so inelastic as to not “permit government some latitude in recognizing and accommodating the central role religion plays in our society.”10
It is equally important to remember Justice Goldberg’s famous observation: Neither government nor this Court can or should ignore the significance of the fact that a vast portion of our people believe in and worship God and that many of our legal, political and personal values derive historically from religious teachings. Government must inevitably take cognizance of the existence of religion. . . .11
It is now time for Scalia to put the stake through the heart of Lemon once and for all. Kennedy will probably side with Scalia, the only question is what will Madame O'Connor of European more precedetn fame do????
We can surmise what Darth Bader Ginsburg will do, however.