It’s been a great week for religious liberty. Last week, the Supreme Court ruled that states cannot exclude religious private schools and their students from tuition aid funding. On Monday, it held that the government cannot abridge an individual’s expression of faith.
Monday’s Supreme Court decision backing Coach Joseph Kennedy, who lost his job for leading students in voluntary prayer, restores the correct interpretation of the First Amendment by rejecting longstanding but faulty standards for church-state separation.
Progressives are decrying Kennedy v. Bremerton School District as another example of overreach by conservative justices in the wake of the court’s overturning of Roe v. Wade. But this decision doesn’t erode the separation of church and state, as Justice Sonia Sotomayor claimed in her dissent. Rather, it clarifies the role of the Establishment Clause and affirms that the Constitution protects Americans of all faiths from government reprisal for religious expression.
The petitioner in this case, Kennedy, was a high school football coach working for a public school in Bremerton, Washington. Drawing inspiration from the movie Facing the Giants, he regularly prayed in the middle of the field after games. Students began to join him voluntarily. The school asked him to stop, alleging that a “reasonable observer” could construe his personal prayers as the school endorsing religion, and when he refused, he was put on paid leave and his contract was allowed to expire.
The school argued its actions were justified because of the “Lemon test,” a three-pronged test named after the plaintiff in Lemon v. Kurtzman. This test is used to determine whether a government action infringes upon the First Amendment’s Establishment Clause. If the action has a secular purpose, its principal or primary effect does not advance or inhibit religion, and it does not foster an excessive government entanglement with religion, then it is constitutional under the test.
Justice Neil Gorsuch, writing for the majority, said the district’s arguments were unconvincing. He concluded high school students were not likely to perceive Kennedy’s prayers as school-sponsored and found no evidence of coercion.
However, the court went further, ruling that the Lemon test wasn’t a good fit for this case — or any future case. The test has been a prominent feature of religious liberty cases for 50 years, but that hardly means it has been consistent or effective.
In 1995, the late-Justice Antonin Scalia wrote in a majority opinion that the Lemon test “invited chaos” into the lower courts because “it does not supply an appropriate standard for inquiry.” In fact, he argued, “It supplies no standard whatsoever.” The justices further criticized the Lemon test in 2019 in American Legion v. American Humanist Association, arguing it is an inadequate framework for deciding cases that created “daunting problems.” Gorsuch, specifically, called Lemon a “misadventure” that left the court with “only a mess.”
This week, he helped retire the test for good, writing that this “ambitious, abstract, and ahistorical approach to the Establishment Clause” could not serve its intended purpose. For this reason, the court “long ago abandoned Lemon.”
Inthe Lemon test’s place, the court will now interpret the Establishment Clause with “reference to historical practices and understandings,” Gorsuch ruled. In other words, the justices are replacing Lemon with a reading of the First Amendment that will be faithful to the Constitution’s original intent — a change that every member of the court should welcome since they are, as Justice Elena Kagan famously said, “all originalists.”
This shift strengthens individual religious liberty without blurring the lines between government and religion. Contrary to popular belief, the seemingly sacrosanct “separation of church and state” is, on its own, a phrase that cannot be found in our founding document and is devoid of any constitutional authority. It’s a distortion of the First Amendment’s Establishment Clause, which, coupled with the Free Exercise Clause, states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
The founding fathers included these two clauses in the Bill of Rights to protect religious activity from government intrusion. They didn’t want another Church of England, nor did they want groups, like the Quakers, to experience persecution. In their newfound republic, there would be a dividing line — or, as Thomas Jefferson informally called it, a “wall of separation.” But that does not mean the “wall of separation” should be interpreted as the government freeing itself from religious matters, eschewing religion outright, or shielding the public from anything related to faith.
The Kennedy v. Bremerton School District decision finally gets the separation of church and state right. By distancing itself from the judge-created Lemon test and returning to a proper interpretation of the Establishment Clause, this decision preserves and strengthens one of the most fundamental rights enshrined in the Constitution.
Rachel Chiu is a policy fellow at the Committee for Justice and a contributor for Young Voices. Follow her on Twitter at @rachelhchiu.
