The First Amendment’s Establishment Clause prohibits the government from making any law that respects the establishment of religion. The Establishment Clause applies to the states through the Fourteenth Amendment.
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court created a three-part analysis to determine whether a law violated the Establishment Clause.
Under the Lemon test, the Court held that for a government action to be constitutional:
- It must have a secular purpose
- Its principal or primary effect must be one that neither advances nor inhibits religion, and
- It must not foster an excessive government entanglement with religion.
The Historical Practices and Understandings Test
In Kennedy v. Bremerton School District, 597 U.S. 507 (2022), the Supreme Court stated it had “long ago abandoned” the Lemon test which had “invited chaos” in lower courts and led to “differing results” in materially identical cases. Id. The Court said that in place of Lemon and the endorsement test, it has instructed lower courts to interpret the Establishment Clause by reference to historical practices and understandings based on the founders’ understanding. Id. The Court also said that the Establishment Clause analysis should focus on “original meaning and history”. Id. However, the Court did not expand on the application of this analysis, nor provide a substitute test that could be easily applicable to a factual situation.
In Kennedy , the thrust of the Court’s focus lied in evaluating whether there was any kind of coercion in joining a religious activity.
Whereas the Lemon test focused on the secular purpose/effect of a law, the new test focuses on the historical acceptance of a practice.
Bar Exam Implications
Generally, Establishment Clause would be more relevant for essay questions that require showcasing one’s knowledge of the rule and the application of it. On bar exam essay questions, explicitly acknowledge the decision in Kennedy v. Bremerton . Explain that the Court has moved away from the Lemon test and towards an analysis of “historical practices and understanding” which has a focus on the founders’ understanding, and on original meaning and history. When you are analyzing the fact pattern, evaluate whether there is any kind of coercion in joining a religious activity, or refraining from it. Finally, consider applying the Lemon test to show your understanding of it, and the doctrinal shift and philosophical differences between the two approaches. In conclusion, prioritize explaining the new standard developed by the Court in Kennedy, but acknowledge the older Lemon test.
Our Constitutional Law flashcards offer a concise summary of the doctrinal shift and the new three-part Historical Practices Test.