Religious conservatives can't stop winning at the Supreme Court

But Gorsuch highlights another reason why Lemon won’t go away, at least in places like Boston. The problem with Lemon is that it makes subjectivity easier; in other words, it’s far easier to render subjective judgments in the service of partisan goals than it is to look to the original history and meaning of the First Amendment’s establishment clause. Indeed, Gorsuch notes that some would like to “lump in religious speech with fighting words and obscenity.” Moreover, these same people wish “to celebrate only a ‘particular’ type of diversity consistent with popular ideology.”

Thus, we see these justices pushing back against attempts to take the cultural animosity against religion and turn it into legal discrimination. For a constitution that gives so much attention and protection to religion, this defense is right and necessary. Codifying religious animosity might be a goal, especially for the current political Left. It can legally occur only over the Constitution’s dead (or greatly amended) body. Unfortunately for those who wish to do so, as Gorsuch notes, “the First Amendment is not exactly your friend.”

Religious conservatives have yet another judicial victory to celebrate. And celebrate they should. But they also have work to do, and Justices Alito and Gorsuch have given them sound advice on how to proceed. Religious conservatives should listen and act. Unless, of course, they’re tired of winning.