Lemon over Boerne.

If you want to include religious freedom, Lemon is better than Boerne.
Think the existing paper articulates this clearly.

The only reason to have Boerne is to access the Section 5/14th Amendment debate, but doesn't Morrison also access this debate? And, I think you can get that debate with Lemon.

One concern Tim and I had was the ability to eliminate/replace the test as an "overrule". Here's 3 cards:

1. The SC should overrule to replace

Staver et al, attorneys for McCreary County, 2k5
[http://www.alliancealert.org/2005/commandments/mccreary/petitionersbrief.pdf]

Although the Display passes the Lemon test, this Court should overrule or modify the test. At a minimum, the purpose prong should be abandoned. It focuses too much on subjective motives when the focus should be on the objective effects of an activity. This Court should adopt a new test for government acknowledgments of religion. Justice O’Connor’s proposed test in Elk Grove Unified School District v. Newdow, 124 S. Ct. 2301, 2322 (O’Connor, J., concurring), is a starting point. Each factor should be carefully considered to avert another Lemon. “History and ubiquity” are important factors to include. The “absence of worship or prayer” factor may be difficult to apply because dividing speech from worship is fraught with problems. The “nonsectarian consideration” is workable so long as context is considered, as in the creche and menorah cases. Caution must be exercised so that the “minimal religious content” factor does not lead to word counts. Perhaps the test should include some element of coercion, being understood as compulsion. At any rate, the Display passes every test, including all aspects of Justice O’Connor’s proposed test. Whatever the test, it should respect our religious heritage by distinguishing between real establishments and permissible acknowledgments of religion.

Orfanedes, Judicial Watch, Inc., 2k5
[http://www.judicialwatch.org/archive/2004/mccrearyamicus.pdf]

As can be seen from this cursory recitation of post-Lemon
decisions, the usefulness of the three-part Lemon test provided
in Establishment Clause jurisprudence has been short-lived.
The inconsistency and confusion that has resulted
demonstrates why the Court should take this opportunity to
overrule Lemon and give some clarity and consistency to the
lower courts and state and federal officials.


___ Overrule Lemon

Browne, Pacific Legal Foundation, 2k1
[http://www.ij.org/pdf_folder/school_choice/ohio/amicus/pac_leg_found.pdf]

There is little doubt that the public education system in
this country is in need of reform.6 Educators throughout this
nation need the widest range of tools to provide educational
opportunities for our nation’s children, such tools should
include school choice programs. Yet by not explicitly
overruling Lemon, these innovative and meritorious programs
will be embroiled in costly litigation over whether public
funded scholarships may be used at private schools whether
religious or not. By not explicitly overruling Lemon, this Court
has condemned the lower courts to toil under the three-part
Lemon test to scrutinize fact patterns in search of secular
purposes, primary effects, and entanglements. This Court
should expressly overrule Lemon and clarify, once and for all,
that government programs that neutrally provide benefits to a
large class of citizens do not offend the First Amendment
simply because a religious institution might receive an indirect
benefit.


Another reason to use Lemon is that there is a big debate to be had - AFF can go in lots of directions which means you could have a smaller list of cases and sustain AFF flexibility. And, it's not like Lemon gets totally out of control as AFF 1 is a CP to AFF 2 etc...
 

I'm not sure it's a bad thing for people to know right now that there are two or three cases that will be a part of any of the possible resolutions. It comes down to the long-standing debate on "small" vs. "large" programs.

If there are 12 possible cases to be researched, Ken (for example) can get people researching aff and neg on all 12 right now. I can't, but I can get in the game by having my handful of available researching students choose among the two or three cases we know will be there--at least to the point where we can pick one and start working on aff research. We're going to guess in any instance, so why not let us have some opportunity to have a level playing field right now? It doesn't reduce the maximum number of possible affirmatives (the vote will still limit that), but it does allow those with limited resources to focus earlier.

There's a small market/large market baseball analogy here, but I'll save it for now.
 

where's the solvency evidence for Boerne?