The Lemon test, a perennial ghoul of Establishment Clause jurisprudence, seems to have finally received its belated quietus. Justice Gorsuch’s recent majority opinion in Kennedy v. Bremerton, while studiously avoiding the “o-word” (overruled), firmly stated that the Supreme Court “long ago abandoned Lemon and its endorsement test offshoot” and “has instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” This is the legal equivalent of encasing Lemon in a lead sarcophagus submerged in liquid mercury; as long as Tom Cruise doesn’t join the Supreme Court and start unearthing ancient tombs, First Amendment litigators should at long last be able to sleep soundly. Nonetheless, experts in eldritch law should not start making retirement plans just yet.

A few days prior to Kennedy, the Supreme Court announced its decision in Carson v. Makin, another case with significant Establishment Clause implications. Carson ultimately turned on whether a state could exclude specific religious uses, here faith-based education, from indirect funding programs, where third-party actors, such as student and parents, channel government resources to a recipient of their choosing. This issue was precipitated by the Supreme Court’s previous decisions in Trinity Lutheran and Espinosa, which took a firm stand against discrimination based on religious status in government funding programs, but declined to address similar discrimination against religious uses. In the aftermath of Trinity, some scholars speculated that state Blaine Amendments, especially those which excluded organizations from generally available government funding programs based on religious status, were potentially unconstitutional.

The state of Maine attempted to avoid this seemingly inevitable result in Carson by arguing that discrimination against religious uses, rather than religious status, was constitutionally permissible as a means of preventing public funds from indirectly subsidizing religious activities or uses. However, writing for the majority, the Chief Justice rejected this reasoning, noting that Maine’s cursory scrutiny of religious school activities and curriculum “suggests that any status-use distinction lacks a meaningful application not only in theory, but in practice as well.” He further admonished that “the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.”

The apparent demise of the nascent status-use distinction doctrine prompts reflection as to whether any wraith-like vestiges of state Blaine Amendments remain constitutionally sound. Importantly, Carson involved an indirect funding mechanism. Thus, the Court’s implicit repudiation of status-use could theoretically apply solely to “neutral benefit programs in which public funds flow to religious organizations through the through the independent choices of private benefit recipients.” In practice, this would still significantly limit the reach of Blaine Amendments as states could only discriminate against religious uses in direct funding programs. Irrespective of Carson, Trinity’s prohibition on status-based discrimination would continue to apply equally to both indirect and direct funding schemes, since that case featured a direct government grant for playground resurfacing.

However, if status-use truly lacks any “meaningful application,” this could indicate that the combined holdings of Trinity and Carson, over time, will effectively eradicate Blaine Amendments by prohibiting the exclusion of religious organizations from generally available government benefits, whether direct or indirect. Such a result could create some friction with Justice O’Connor’s concurrence in Mitchell v. Helms, which raised the specter of Establishment Clause concerns in situations where direct government funds are diverted to subsidize overtly religious activities. That being said, this remaining Helms caveat could itself rest on shaky ground due it its reliance on the progeny of Lemon.

In the wake of Kennedy v. Bremerton, Establishment Clause analysis will no longer require litigants and courts to flounder through Lemon’s tripartite gauntlet. Rather, judges will be tasked with considering whether a particular direct funding program or mechanism constitutes an establishment of religion in light of “historical practices and understandings.” Since this is admittedly new terrain for lower courts, it may take some time to ascertain exactly how this historical approach will impact Blaine Amendments. However, even at this early stage, the public benefit theory implicitly endorsed in Everson v. Board of Education can perhaps serve as a helpful rule of thumb. This doctrine stands for the basic principle that, where a government establishes a generally available public benefit, such as direct tuition assistance, it cannot single out religious individuals or organizations for exclusion.

Returning to such an evenhanded approach could avoid the tension between Trinity and cases like Committee for Public Education v. Nyquist, which dubiously held that direct government maintenance and repair grants to nonpublic schools had the unconstitutional effect of “subsidiz[ing] and advanc[ing] the religious mission of sectarian schools.” Through the lens of Everson, Trinity, and Carson, it is difficult to envision how a generally available secular government benefit, such as playground resurfacing or a facilities maintenance grant, could offend a historically-informed understanding of the Establishment Clause. As a result, under this paradigm, there would be very few legitimate anti-establishment excuses for excluding religious entities from generally available direct government benefits.

Perhaps ironically, Lemon’s downfall has thus reduced Blaine Amendments to the spectral realm. Any constitutional room left for Blaines would seem to rest on whether a particular government funding scheme is suspect under the Establishment Clause. In other words, after Carson, state constitutions can no longer require a greater “separation of church and state” than that contemplated by the U.S. Constitution. Consequently, as the new contours of a revitalized Establishment Clause rooted in history and tradition are defined through litigation, Blaine Amendments could very well be limited to a vanishingly small, or perhaps nonexistent, set of circumstances. Until that time, Blaines will linger on, neither living nor dead.

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