[media-credit name=’DANA VERKOUTEREN/Associated Press’ align=’alignnone’ width=’648′][/media-credit]The long anticipated wait for the cases addressing the constitutionality of the Ten Commandments is finally over. The Supreme Court has spoken and unfortunately, we are now left with an even more convoluted Establishment Clause jurisprudence.

So, what have we learned in the past week? The Ten Commandments can be displayed on public property, but don't place them on the walls of a courthouse. If there are other historical documents near these moral laws, then there is a chance the state is not advancing religion. But, if the Commandments are displayed in solitude, then the state may be sending a strong message of religious endorsement.

The only thing I can take away from these decisions is the sound of lawyers gearing up for more litigation.

What ever happened to consistency in the Court's decisions? After reading Van Orden v. Perry, where a monument of the Ten Commandments stood outside the Texas capitol building, and McCreary v. ACLU, where the Commandments, along with other historical documents, adorned the walls of Kentucky courthouses, one can see these two cases are riddled with nothing but inconsistencies.

If anything, these two recent cases demonstrate the pressing need for the three-prong Lemon test, first used in Lemon v. Kurtzman, to be abandoned.

The majority in McCreary made it clear they would not abandon the Lemon test. Rather, they used the purpose prong of the test, requiring that government action must have a secular purpose, as the primary factor in determining the constitutionality of the Commandments. While five justices in this decision saw the test still having life, Chief Justice William Rehnquist strongly questioned its vitality in Van Orden and refused to use it.

Consistency has never been a strong point of the Court in deciding Establishment Clause cases. One day the "Lemon test" will strike the Court's fancy, and the next it will be Justice Sandra Day O'Connor's endorsement test, the coercion test, or maybe historical practice.

There seems to be no clear understanding of when a given test will be applied, and the Lemon test has caused nothing but, in the words of Rehnquist, "hopeless confusion."

But maybe Justice Scalia can help explain the Court's use of this test. He notes in his concurrence in Lamb's Chapel v. Center Moriches School District (1993):

"The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will…a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him."

Could there be some truth to Mr. Scalia's words? What else could explain the Court's use of a, well, "sour" test?

Most of the Establishment Clause cases handed down by the Court in the last two decades reflect nothing more than the preferences of individual justices, especially Ms. O'Connor. Cases grounded in any clear legal analysis are sparse, and the two most recent cases reaffirm this finding.

Establishment Clause jurisprudence will continue to be redefined along the lines of the justices' personal views until the Court takes a strict constructionist interpretation to this clause and adopts a consistent test.

Given the lack of a consistent test, the holdings in McCreary and Van Orden are exceedingly narrow and several of the justices on the Court seem intent on keeping it that way.

But, why must we run to the courts every time something remotely religious offends us? Isn't it the job of the Supreme Court to interpret the Constitution and provide our nation's courts with legal guidance?

Unfortunately, the blind is leading the blind.

The Court will be able to engage in "consistent and coherent application" of precedent only when such a test is adopted. Meanwhile, we will not be seeing the last of litigation concerning the constitutionality of the Ten Commandments and other historical icons with religious connotations.

Conservative and liberal public interest law firms are already preparing for another round of legal action, and the playing field will, once again, be our nation's courtrooms. From the perspective of the American Civil Liberties Union and its conservative counterweight, the American Center for Law and Justice, the fight for religious freedom is far from over.

Although the battle over the display of the Ten Commandments is settled for now, this week's decisions have implications far beyond Moses' laws, especially since Van Orden was a plurality decision, rendering Rehnquist's rational unbinding on the Court.

Rehnquist's opinion in Van Orden heavily resembled his concurring opinion in Elk Grove Unified School District v. Newdow, regarding the constitutionality of "under God" in the Pledge of Allegiance. But, given his brethren's decision in McCreary, the Pledge's brightest days may have already passed. Someday, "under God" will once again rear its problematical head, and without a clear test, these two simple words will be at the mercy of the preferences of nine justices.

Until the Court does away with the Lemon test and adopts a uniform test, many will be left with a sour taste in their mouth, as the Establishment Clause decisions of the Court will be worth nothing more than a 25 cent cup of poorly made Lemonade.

Darryn Beckstrom ([email protected]) is a PhD student in the Department of Political Science and a second year MPA candidate in the La Follette School of Public Affairs.