In his recent piece titled “Modern Supreme Court Doctrine Has Subverted the Constitutional Meaning of Religion,” Thomas Connors suggestion that Lemon v. Kurtzman (1971) remains a valid precedent is no longer tenable in light of the U.S. Supreme Court’s recent rulings, most notably Kennedy v. Bremerton School District (2022), that was successfully argued by First Liberty Institute. 

The Court’s decision in Kennedy, written by Justice Neil Gorsuch, explicitly rejected the Lemon test, stating “But -- given the apparent “shortcomings” associated with Lemon’s “ambitiou[s],” abstract, and ahistorical approach to the Establishment Clause -- this Court long ago abandoned Lemon and its endorsement test offshoot. 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,” solidifying the shift away from its flawed framework in favor of a historical understanding of the Establishment Clause.”

In Kennedy, the Court addressed the case of a public high school football coach who was disciplined for privately praying on the field after games. The Court ruled in his favor, affirming that the Free Exercise and Free Speech Clauses protect such individual religious expressions and that the Establishment Clause does not mandate the suppression of religious observance in public spaces. In reaching its decision, the Court explicitly stated that the Lemon test and its associated “endorsement” test were no longer good law, directing courts to interpret the Establishment Clause with reference to “historical practices and understandings.”

As noted by Connors, for decades, the Lemon test imposed a “schizophrenic” standard, requiring the action of individuals representing government entities to have a purely secular purpose and neither advance nor inhibit religion while simultaneously at the highest levels alluding to God in numerous ways throughout government institutions and practices. This framework, to use the words of those on the Left, effectively marginalized individual religious expression and created an implicit bias against any personal acknowledgments of faith in the public square. However, as noted above, Kennedy took the decisive step of discarding Lemon altogether.

This rejection of Lemon is significant because it dismantles the notion that government and individual action must be devoid of religious influence. Our nation’s history is replete with references to faith -- from the Declaration of Independence’s acknowledgment of unalienable rights endowed by a Creator to the motto “In God We Trust” inscribed on our currency. Legislative bodies across the nation regularly open their sessions with prayer, and the Ten Commandments are displayed in the Supreme Court. The First Amendment was never intended to establish a secularist or materialist ideology as the nation’s governing philosophy; rather, it was designed to prevent the government from imposing a specific religious orthodoxy while allowing space for religious expression within the public sphere.

Those who continue to rely on Lemon to argue for an absolute wall between religion and government are disregarding binding precedent, and as the writer states, that has had a profound impact on the culture. The Supreme Court has made clear that the Establishment Clause must be understood in its historical context, one that recognizes the permissibility of religious expression in public life. Kennedy v. Bremerton marks the formal end of Lemon, and with it, the end of an era in which courts erroneously treated religious neutrality as synonymous with religious exclusion. 

With this new precedent firmly in place and with a goal of undoing the damage done to the culture through Lemon, First Liberty Institute started the Restoring Faith in America initiative. Our goal is to educate and mobilize citizens across the country to start more boldly living out their beliefs in public square, just like Coach Joe Kennedy.

Nate Kellum is senior counsel for First Liberty Institute, a nonprofit law firm dedicated to defending religious freedom for all. Learn more at FirstLiberty.org.

Andrea Justus is community coordinator for Restoring Faith in America, a project of First Liberty Institute. 

Image: wd paarz