The Supreme Court handed down a 6-3 decision Monday in Kennedy v. Bremerton School District, granting yet another win for religious conservatives this term. Bremerton High School football coach Joe Kennedy was fired by the school district for his practice of praying at the 50-yard line after each game. The court explained that the school superintendent considered even the coach’s “brief, quiet prayer” to be “unconstitutional,” a violation of the Establishment Clause. Kennedy’s last game as coach was in October 2015.
The court held that the school district “sought to punish an individual for engaging in a brief, quiet, personal religious observance” based on “a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination.”
While some religious freedom victories have been narrowly crafted (Masterpiece Cakeshop, for instance), the Kennedy v. Bremerton decision establishes a precedent applying to other situations as well. Most significantly, the court in Kennedy “essentially overruled” what is known as the “Lemon test,” said Katherine Beck Johnson, FRC’s Research Fellow for Legal and Policy Studies.
In Lemon v. Kurtzman (1971), the Supreme Court barred public funds from supplementing non-religious instruction or teacher salaries at religious schools, establishing a three-part test which has confused Establishment Clause decisions ever since. “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U. S. 236, 243 (1968); finally, the statute must not foster ‘an excessive government entanglement with religion.’”
But the Lemon test quickly ran into problems. “Lemon had the effect of excluding from the public square religious expression, which the Constitution had never contemplated excluding,” remarked Travis Weber, FRC’s Vice President for Policy and Government Affairs. For instance, in Marsh v. Chambers (1983), the state of Nebraska was sued for paying a chaplain to open legislative sessions with a prayer. In that case, the court did not apply the Lemon test, ruling instead that the centuries-long history of the practice gave “abundant assurance that there is no real threat” of an establishment of religion. The court began ignoring the Lemon test in more and more cases.
By 1992, attorneys were openly urging the Supreme Court to overrule Lemon. In Lee v. Weisman (1992), the Supreme Court explicitly refused an invitation to “reconsider our decision in Lemon,” ultimately ruling that prayer at public school graduations violated the Establishment Clause. But Justice Antonin Scalia wrote in dissent, “The Court today demonstrates the irrelevance of Lemon by essentially ignoring it,” citing “well-earned criticism from many Members of this Court” and offering it as an example of “formulaic abstractions that are not derived from, but positively conflict with, our long-accepted constitutional traditions.”
No one could confidently predict whether the Supreme Court would invoke or ignore the Lemon test in any particular case. By 2014, in Town of Greece v. Galloway, Lemon had become so irrelevant to Establishment Clause cases that the majority opinion did not even cite it, and the dissent only mentioned it once.
Then in American Legion v. American Humanist Association (2019), the majority opinion roundly condemned Lemon. “If the Lemon Court thought that its test would provide a framework for all future Establishment Clause decisions, its expectation has not been met. In many cases, this Court has either expressly declined to apply the test or has simply ignored it.” After listing nearly a dozen, they continued, “this pattern is a testament to the Lemon test’s shortcomings. As Establishment Clause cases involving a great array of laws and practices came to the Court, it became more and more apparent that the Lemon test could not resolve them.”
The court on Monday built on this history in its Kennedy decision, which declared, “this Court long ago abandoned Lemon and its endorsement test offshoot.” According to the majority of the court, the Kennedy decision was not ground-breaking; it simply clarified the position on Lemon the court had already taken.
The dissenting opinion argued that the majority thereby overruled Lemon and “calls into question decades of subsequent precedents that it deems ‘offshoot[s]’ of that decision,” but Weber urged caution. “The Court has basically done away with Lemon, but has not expressly said so in the ruling — unlike in Dobbs, where they said ‘Roe and Casey must be overruled,’” Weber commented.
However, Weber believed the decision brought helpful clarity to the Court’s convoluted Establishment Clause jurisprudence. They wrote, “in place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings” (internal quotation marks omitted). “It lays out a standard,” Weber said, and “instructs lower courts how the Establishment Clause is to be interpreted.”
The court’s decision in favor of Coach Kennedy could help other Americans as God-fearing as he. Currently, confusion about what the Establishment Clause requires is widespread. Even educational resources on official government websites, like this one, characterize the Establishment Clause in a way the Supreme Court has long since rejected. Like Bremerton, many local school districts often discourage or inhibit religious expression out of a desire to avoid “excessive government entanglement.” But with the Kennedy decision, the Supreme Court has made clear that is not what the Constitution requires at all.
Joshua Arnold is a senior writer at The Washington Stand.
