A casual observer could be forgiven for thinking that times have never been worse for religious liberty in America. Over the last few years, headlines have blared alarmist rhetoric such as “Religious Liberty Under Threat, at Home and Abroad” or “Freedom of religion is as threatened today as it was in 1791.” Anyone who has donated a dollar to a conservative cause is likely to have received a flood of fundraising emails suggesting that religious freedom will disappear if they do not donate to one organization or another.
It is easy to understand why someone may think religious liberty is headed in the wrong direction without doing further research. Fortunately, there is much more to the story. While there is still improvement to be made, and it remains worthwhile to support legitimate religious liberty organizations, we are closer to entering a golden age of religious liberty law than we are to seeing that right extinguished. Establishment Clause jurisprudence is a worthy case study.
One bad apple can spoil the whole bunch, and a sour decision on Lemon v. Kurtzman spoiled establishment clause cases for half a century, until Kennedy v. Bremerton brought a fair return to Establishment Clause jurisprudence.
In Lemon v. Kurtzman, the Supreme Court held that issuing financial relief to religious schools constituted an impermissible “establishment” of religion.
For the next 50 years, the Lemon test was the law of the land. Under that test, a law must 1) have a secular purpose 2) not advance nor inhibit religion 3) not cause excessive entanglement of government and religion. A corollary to this rule was that any action which seemed to “endorse” religion was also unconstitutional. Lemon was so ambiguous that some government entities were deterred from offering any benefits — including those available to every other citizen — to religious people. Lemon also empowered anti-religious zealots to threaten or even sue any government that so much as allowed a Rabbi to light a Menorah in a public park, or grant a zoning permit to a synagogue.
The Court slowly but surely endeavored to ameliorate the harm of Lemon. Over the last few decades, the Supreme Court has repeatedly declined to apply Lemon in many cases where it seemed to be the governing law. For example, Lemon was interpreted to not apply in cases involving legislative prayer, public displays of religious objects, and the use of public school facilities for religious activities after school hours. Unfortunately, because the court never explicitly stated that Lemon was reversed, lower courts continued to apply its strict rule.
While religious litigants were very likely to win at the Supreme Court, the vast majority of cases never reach the Supreme Court. Religious Americans were left at the mercy of lower court judges, many of whom continued to apply Lemon in a merciless manner and fell influence to rampant, anti-religious sentiment. It is unknown how many religious Americans simply gave up when a city told them that Lemon prevented it from allowing them to exercise their religion.
Lemon was finally laid to rest in October 2021 with Kennedy v. Bremerton, a landmark case that held that the football coach of a public high school did not violate the Establishment Clause by engaging in silent prayer after games. The case garnered significant media attention, with many claiming that Kennedy was somehow indoctrinating the faithful players who decided to pray with him.
Really, in an age where young people are consistently rejecting traditional values for the instant gratification provided by our digital-driven world, the faith demonstrated by Coach Kennedy and those who chose to pray with him, should have been met with respect. Coach Kennedy’s prayers took the form of a silent kneel on the 50-yard line after the completion of a game. The players who joined him weren’t necessarily even praying to the same God, but taking time after a game to express their gratitude in a powerful display of unity and faith.
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In its decision on Kennedy v. Bremerton, the Supreme Court affirmed that Lemon’s “ahistorical, atextual” approach had long been dead, although it had not yet explicitly stated so. Nevertheless, the Court’s delay in stating the fall of Lemon, and lack of clarity from Establishment Clause cases leading up to it, caused unnecessary suffering for religious communities. Although Kennedy eventually won his case, he was initially fired from coaching the team he loved, suffered public ridicule, and had his faith questioned in front of the entire nation.
In Gagliardi v. The City of Boca Raton Florida, Lemon was invoked to delay Jewish residents from building a synagogue. After years of delay and deprivation from their access to worship, the synagogue finally won in Court. The decision in Kennedy ensures that anti-religious reactionaries will no longer be able to invoke Lemon to strip sincere religious communities of their rights and dignity.
In Kennedy’s wake, the Court instructed that, going forward, Establishment Clause cases would be decided by “reference to historical practices and understanding.” Although exactly what will come from the new precedent has yet to be decided, American history, from its very founding, is rooted in religious freedom and recognizing pluralism, so it will be significantly better than Lemon. Lower courts will no longer be able to force religious litigants to forgo their convictions in the name of the Lemon test.
With Lemon officially gone in Kennedy’s wake, Establishment Clause jurisprudence has gone from sour to sweet. We should continue to fight to fully protect religious freedom, but we should also celebrate and acknowledge how much progress has been made. Instead of letting headlines of standout cases drive us to hysteria, we should let them galvanize us into action.
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Bella Brannon is a Junior at UCLA studying Public Affairs, Religion, and Digital Humanities. She is the Editor-In-Chief of Ha’Am, researched bias in artificial intelligence with the School of Technology Law and Policy, and spent the summer interning with the Jewish Coalition for Religious Liberty.
The views expressed int his piece are those of the author and do not necessarily represent those of The Daily Wire.