On June 27, 2022, the U.S. Supreme Court decided Kennedy v. Bremerton School District. In this case, a public high school football coach was fired for taking a knee and praying at the 50-yard line after football games. The school district’s sole reason for firing him was its concern that he was violating the Establishment Clause. Kennedy countered that his free exercise and free speech rights permitted him to pray. When this case reached the Supreme Court, I filed an amicus brief for the Alabama Center for Law and Liberty arguing that Lemon and the endorsement test had been abandoned and that history was now king in the Establishment Clause analysis.

In a 6-3 opinion authored by Justice Gorsuch, the Court ruled in Coach Kennedy’s favor. The Court’s opinion has important implications for free speech and free exercise, but its most significant holding was about Establishment Clause tests.

After discussing Lemon and the endorsement test, the Court held 6-3 that “the shortcomings associated with this ambitious, abstract, and ahistorical approach to the Establishment Clause became so apparent that this Court long ago abandoned Lemon and its endorsement test offshoot.” If there was any doubt that the Court had buried Lemon for the last time, the dissenters argued, “The Court overrules Lemon . . . and calls into question decades of subsequent precedents that it deems ‘offshoots’ of that decision.” Thus, all nine of the Justices appear to agree that the Court has officially abandoned Lemon.

As to what replaces Lemon and its progeny, the Court held:

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 . . . . The line that courts and governments must draw between the permissible and impermissible has to accord with history and faithfully reflect the understanding of the Founding Fathers . . . . An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some exception within the Court’s Establishment Clause jurisprudence.

Consistent with this view, the Court held that while the government may not coerce people to observe religious practices, Coach Kennedy’s religious exercise did not involve such coercion. While the Court acknowledged that Lee v. Weisman and Santa Fe Independent School District v. Doe involved what the Court described as subtle coercion, that did not exist in this case.

There are at least four Establishment Clause takeaways from this case.

First, Lemon and the endorsement test have been overruled. There seems to be no dispute about that. In its place, six Justices have held that the Establishment Clause must be analyzed in light of history and its original meaning.

Second, because Lemon was supposed to be a restatement of the Establishment Clause decisions from 1947 until 1971, overruling Lemon may mean that those decisions have fallen as well. That would mean that decisions like Engle v. Vitale (which banned opening public schools in prayer) and Abington School District v. Schempp (which banned opening public schools with Bible readings) are now gone.

Third, the Court appears to have jettisoned some of the rules that have been grafted onto the historical analysis in recent cases. For instance, in Town of Greece v. Galloway, the Court held that “[a]ny test the Court adopts must acknowledge a practice that [1] was accepted by the Framers and [2] has withstood the critical scrutiny of time and political change.” While Kennedy favorably cited the first part of Town of Greece’s test, it made no mention of the second.

Fourth, while Kennedy affirmed that coercion was unconstitutional, it declined to address whether Lee and Santa Fe’s “subtle coercion” holdings were correct. Thus, unless and until the Supreme Court overrules those decisions, lower courts may hold that situations like Lee and Santa Fe are still unconstitutional. However, if Lee and Santa Fe are still good precedent but Abington and Schempp are not, then the Court will inevitably have to resolve whether practices like opening schools, graduation ceremonies, or football games in prayer are coercive.

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