The Supreme Court held today in Kennedy v. Bremerton School District that when life gives you Lemon [v. Kurtzman], you strike it down for good. This notoriously troublesome Establishment Clause test, which Justice Scalia likened to “some ghoul in a late-night horror movie” that somehow keeps coming back to life, is conclusively and finally dead.
Religious liberty wins again at the Supreme Court this term, and today’s opinion ensures it will continue to do so in the future.
SCOTUS sides with a high school football coach in a First Amendment case about prayer at the 50-yard-line. In a 6-3 ruling, SCOTUS says the public school district violated the coach's free speech and free exercise rights when it barred him from praying on the field after games.
— SCOTUSblog (@SCOTUSblog) June 27, 2022
Joseph Kennedy, a high school football coach in Washington's Bremerton School District, lost his job after he knelt at midfield after games to offer a quiet personal prayer. The Supreme Court held today (6-3) that the school district’s actions violated the First Amendment’s Free Speech and Free Exercise Clauses. Writing for the majority, Justice Gorsuch stated:
Respect for religious expressions is indispensable to life in a free and diverse Republic. Here, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his religious exercise and free speech claims.
Justice Gorsuch went a step further and made it clear that oftentimes the government too easily finds an Establishment Clause violation where there simply is not one:
[T]here is no conflict between the constitutional commands before us. There is only the ‘mere shadow’ of a conflict, a false choice premised on a misconstruction of the Establishment Clause. And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights. (internal citations omitted).
But perhaps the most significant win from today’s opinion (aside from vindicating a coach whose individual rights to engage in private religious expression were violated) was the ultimate demise of the Lemon test, which came from Lemon v. Kurtzman, 403 U.S. 602 (1971). This test called for an examination of a law’s [or practice's] purposes, effects, and potential for entanglement with religion; however, this test was indisputably unworkable.
Justice Sotomayor, writing for the Dissent, admits, “The Court overrules Lemon v. Kurtzman, 403 U. S. 602 (1971), and calls into question decades of subsequent precedents that it deems ‘offshoot[s]’ of that decision.” Indeed, the majority 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… [T]he line [that courts and governments] must draw between the permissible and the impermissible [has to] accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.' [Citations omitted].
As Justice Scalia infamously wrote about the Lemon test in Lamb’s Chapel v. Center Moriches Union Free School District, a case about a school district that prohibited the use of its property by any religious group but allowed secular groups to use the property,
Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District…The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
As a majority of the Justices have finally “driven pencils through the creature’s heart,” the “ghoul” is finally dead. Justice Scalia would be most proud of today’s decision, which is a significant victory for religious liberty.
Red Flag June Continues As Lemon Is Finally Interred. Justice Gorsuch stabs the final pencil into the Lemon Test. https://t.co/kMDDd7Vf4N
— Josh Blackman (@JoshMBlackman) June 27, 2022
RNLA congratulates First Liberty Institute on its second meaningful victory at the Supreme Court this term, following last week’s decision in Cason v. Makin, which held that Maine’s school choice program could not discriminate against religious schools under the Free Exercise Clause of the First Amendment.