I agree that it is a shame that the Madison-based Freedom From Religion Foundation was able to convince the state to remove a prayer and a hymn from a memorial service for murder victims. I guess we're all safe from theocracy for another week.
But the sad fact is that their legal position wasn't crazy and I understand why the DOJ caved. There is room to defend the prayer and hymn. One could, for example, argue that this is more like an invocation opening a session of the legislature than it is like a graduation ceremony at which attendance is, at least practically, "mandatory" and the audience consists of minors.
But the fact of the matter is that under either the Court's here today-gone tomorrow-back next week (and aptly named) Lemon test or under Justice O'Connor's much maligned endorsement test (a/k/a What Would Sandra D)o, the ceremony was very vulnerable to court challenge.
Both the Lemon and endorsement tests (arguably a restatement of Lemon) are so malleable as to be meaningless. As I argued in a recent scholarly piece (and as many others have), the concept of endorsement is problematic. It tends to work in a disaggregated fashion with the question of endorsement turning only on the particular action in question without consideration of everything the government does or does not do. It requires judges to adopt the mindset of a hypothetical observer who may bear no relationship to what real people think. It assumes that neutrality is an achievable goal. It's not. The idea of segregated secular and spiritual worlds is a very modern liberal protestant concept. It embodies a conception of nonestablishment that is very questionable on historic and policy grounds.
Eugene Volokh thinks that a recent decision from the 9th Circuit holding that the transfer of federal land on which people have been constructing a memorial cross to a private party violates the endorsement test might serve as a vehicle for jettisoning the test altogether.
I am not so sure. I agree that it is possible that there may be four justices willing to eliminate or substantially modify the endorsement test. But will they believe that they can get Anthony Kennedy to buy into something that they can agree with. Kennedy has, on the one hand, suggested that coercion has something to do with violations of the establishment clause but he has attended to define it expansively, such that it may simply collapse into non-endorsement.