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The Lemon test was finally killed off once for and all by SCOTUS today (the football coach case).  It used to be a (dorky) joke, how many times can Lemon get rejected by the Court until it is finally scrapped and overturned.  That freaking test was the Rasputin of 'balancing tests'.   For con. law geeks like me it was 30 years overdue.    One of the most comical dissents I've ever read, and had reason to dig it up again today after reading a blog by a retired con law prof.

 Is anyone keeping count of how many times the Court has "overruled Lemon"? Has a case ever been "overruled" so many times and still lived on?

It was all the way back in 1993 that Justice Scalia wrote:

As to the Court's invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: our decision in Lee v. Weisman, 505 U. S. ----, ---- (1992) (slip op., at 7), conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. 

Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. See, e. g., Weisman, supra, at ---- (slip op., at 14) (Scalia, J., joined by, inter alios, Thomas, J., dissenting); Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 655-657 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part); Corporation of Presiding Bishop of Church of Jesus Christ of Latter day Saints v. Amos, 483 U.S. 327, 346-349 (1987) (O'Connor, J., concurring); Wallace v. Jaffree, 472 U.S. 38, 107-113 (1985) (Rehnquist, J., dissenting); id., at 90-91 (White, J., dissenting); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 400 (1985) (White, J., dissenting); Widmar v. Vincent, 454 U.S. 263, 282 (1981) (White, J., dissenting); New York v. Cathedral Academy, 434 U.S. 125, 134-135 (1977) (White, J., dissenting); Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 768 (1976) (White, J., concurring in judgment); Committee for Public Education & Religious Libertyv. Nyquist, 413 U.S. 756, 820 (1973) (White, J., dissenting). 

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. See, e. g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e. g., Aguilar v. Felton, 473 U.S. 402 (1985) (striking downstate remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts," Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced. See, e. g., Choper, The Establishment Clause and Aid to Parochial Schools--An Update, 75 Cal. L. Rev. 5 (1987); Marshall, "We Know It When We See It": The Supreme Court and Establishment, 59 S. Cal. L. Rev. 495 (1986); McConnell, Accommodation of Religion, 1985 S. Ct. Rev. 1; Kurland, The Religion Clauses and the Burger Court, 34 Cath. U. L. Rev. 1 (1984); R. Cord, Separation of Church and State (1982); Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. Pitt. L. Rev. 673 (1980). I will decline to apply Lemon--whether it validates or invalidates the government action in question--and therefore cannot join the opinion of the Court today.

For 5 minutes?  Probably soon after I was born.  You're trying to go down some odd tangent where you 'gotcha' me at meaning you're not a person until you can survive on your own with no assistance at all.  Which is silly.  
Let's do something more productive and try a little harder to be honest interlocutors, shall we?

So anything happening in other news these days? 

Great to see you. Other than that, not really.

Okay, let's line up a fetus, toddler, teenager, and adult.  The ones who live for more than 5 minutes are people.  Agreed?

No. 

Damn. I better go look at the store today. I'm about half full now.

There are recipes out there to make it on your own.  Looks like I might be trying that out.  You blend a papper paste with some spices and brown sugar, and then ferment it for a while, then blend it again, and cook it.  I'm down for that.

Can't find Johnnie Walker Red around here. My friend brought me a case from IL a couple of weeks ago.