In another bombshell opinion, the Supreme Court’s conservative majority has upended the way it understands and applies the clause of the Constitution that prohibits the establishment of religion. Completing the revolution begun in last week’s decisions expanding gun rights and overturning abortion law, the court said in Kennedy v. Bremerton School District that it was abandoning long-established constitutional doctrine and replacing it with a historical analysis.
This means that in establishment cases the court will no longer examine government action to see if it has a secular purpose and effect, or sends a message of government endorsement of religion. Instead, the court will consider whether government action violates the establishment clause only “by reference to historical practices and understandings.”
The court’s 6-3 decision represents a once-in-50-years change in the law of church and state. The court used the case of a high school football coach disciplined for praying at the 50-yard line immediately after games to overturn two long-established doctrines.
The first comes from Lemon v. Kurtzman, a precedent going back to 1971. Under the three-part Lemon test, the court determined whether the establishment clause was violated by asking, first, whether the government action had a secular purpose. Second, the court asked if the action advanced or inhibited religion. Third, the court asked if the government had entangled itself with religion.
The Lemon test has been long been on shaky ground, and commentators have been predicting its demise since the 1980s. But until now, the court had never overruled Lemon.
One reason is that, starting in 1984, Justice Sandra Day O’Connor famously re-interpreted the first two parts of the Lemon test. In her formulation, eventually adopted by the court as binding precedent, the court interpreted the establishment clause by asking if the government is sending a message to the public that it endorses religion.
When the government endorses religion, O’Connor reasoned, it unconstitutionally makes religion relevant to a person’s standing in the political community, treating religious adherents as favored insiders and others as disfavored outsiders. The court has used O’Connor’s endorsement test repeatedly since the 1990, with a few justices questioning it in recent years.
Today the court said that its history-only approach must be used “in place of Lemon and the endorsement test.” The majority opinion by Justice Neil Gorsuch did not use the words “overturn” or “overrule.” This word-choice surely reflects the influence of Chief Justice John Roberts, who joined the majority. Roberts prefers to overturn precedent without saying so too directly.
But the “in place of” language is as clear an example of overruling as can be accomplished without using the word. The dissent, written by Justice Sonia Sotomayor and joined by the courts’ two other liberals, stated bluntly that the majority opinion “overrules” Lemon and “calls into question decades of subsequent precedents that it deems offshoots” of that decision. Given the way the majority phrased its “in place of” sentence, there is no credible basis to think the majority in any way preserved either Lemon or O’Connor’s endorsement test.
The court was not clear at all about the new historical test it introduced — less so, even, than the moving-target historical tests the court used in Bruen, the gun case, and Dobbs, the abortion case. The court said that the new test must “accord with history and faithfully reflect the understanding of the Founding Fathers.”
To the extent the court offered a hint about its historical test, it mentioned that the framers understood the establishment clause to prohibit religious coercion — forcing people to perform religious acts they do not wish to perform. This was long the view of Justice Anthony Kennedy, who believed coercion was a necessary component of any establishment-clause violation.
The court did not quite announce the bright-line rule that coercion is necessary — but that is a probable reading of the new rule. It did say that the football coach’s prayer did not coerce anyone, and that it did not come “close” to imposing social-pressure coercion on the team members to pray.
What this means in practice is that public prayer and other public manifestations of religion will be increasingly permitted by the court. The endorsement test left a lot to the subjective judgment of judges, who had to decide whether the government was or wasn’t sending a message of endorsement. The new approach will put judges in the different but also subjective game of considering historical analogies.
As for school prayer, the court did not reverse Lee v. Weisman, the 1992 case in which Kennedy held for the majority of the court that a rabbi-led prayer at a middle-school graduation effectively coerced students in violation of the establishment clause. So teacher-led school prayer in the classroom is not constitutional, or at least not yet.
At the same time, teachers and coaches will now be able to pray publicly at school functions under circumstances that courts consider analogous to the coach’s 50-yard line prayer. Expect plenty of new litigation as teachers and coaches push the envelope and lower courts try to figure out how to apply the new rule.
At the level of principle, today’s Kennedy case is a game changer. The conservative majority means to make a clean sweep of hot-button areas of constitutional law, overturning precedent and mandating historical originals. The jurisprudential revolution is now well under way.
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ABOUT THE WRITER
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
