First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court did not generally apply Lemon rigidly, and two years after the decision, the Court described its three factors—purpose, effect, and entanglement—as “helpful signposts” in the Establishment Clause inquiry.1 These three factors were also part of Establishment Clause jurisprudence before Lemon.2 Since at least the early 1990s, however, the Supreme Court faced calls to reconsider Lemon.3 While some opinions in the beginning of the 2000s continued to use the Lemon factors or variations on that test as their primary mode of analysis,4 the Court ultimately said Lemon was “abandoned” in a 2022 opinion.5

The Court’s 2019 decision in American Legion v. American Humanist Association had already limited Lemon's applicability, suggesting that in the future, it would not apply Lemon to evaluate “longstanding monuments, symbols, and practices.” 6 Instead, a plurality of the Court said such practices should instead be considered constitutional so long as they “follow in” a historical “tradition” of religious accommodation.7 In 2022’s Kennedy v. Bremerton School District, the Court said it had “long ago abandoned Lemon and its endorsement test offshoot,” citing portions of American Legion that discussed a number of earlier cases in which the Court did not apply Lemon.8 Instead, moving forward, the Court said the Establishment Clause “must be interpreted by ‘reference to historical practices and understandings.’” 9 The analysis in Kennedy itself referred to the Court’s prior cases on coercion, suggesting that will also provide an appropriate mode of analysis in the future.10

Footnotes

1

Hunt v. McNair, 413 U.S. 734, 741 (1973); see also Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).

2

Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335 (1987).

3

See Lee v. Weisman, 505 U.S. 577, 587 (1992) ( “[W]e do not accept the invitation of petitioners and amicus the United States to reconsider our decision in Lemon v. Kurtzman . . . .” ); see also McCreary Cnty. v. ACLU, 545 U.S. 844, 861 (2005) ( “[T]he Counties ask us to abandon Lemon's purpose test, or at least to truncate any enquiry into purpose here.” ).

4

See Salazar v. Buono, 559 U.S. 700, 705–06 (2010) (plurality opinion) (analyzing the constitutionality of a Latin cross war memorial using the endorsement test); McCreary Cnty. v. ACLU, 545 U.S. 844, 859–60 (2005) (reaffirming the use of the Lemon test in analyzing the constitutionality of a Ten Commandments display, particularly the purpose prong).

5

Kennedy v. Bremerton Sch. Dist., No. 21-418, (U.S. June 27, 2022).

6

Am. Legion v. Am. Humanist Ass’n, No. 17-1717, slip op. at 16, 25 (U.S. June 20, 2019) (plurality opinion). See also id. at 6 (Thomas, J., concurring in judgment) (stating that he “would take the logical next step and overrule the Lemon test in all contexts” ). Some Justices had previously written that Lemon should not apply to monuments, but had not gathered a majority coalition for such a holding. See Van Orden v. Perry, 545 U.S. 677, 686 (2005) (plurality opinion) (saying that Lemon was “not useful” to analyze a “passive monument,” and that its analysis was instead “driven both by the nature of the monument and by our Nation’s history” ); Allegheny Cnty. v. ACLU, 492 U.S. 573, 595 (1989) (opinion of Blackmun, J.) (stating that the endorsement test “provide[d] a sound analytical framework for evaluating governmental use of religious symbols” ).

7

Am. Legion, slip op. at 28.

8

Kennedy, No. 21-418, slip op. at 22; Am. Legion, No. 17-1717, slip op. at 13.

9

Kennedy, slip op. at 23 (quoting Town of Greece v. Galloway, 572 U.S. 565, 576 (2014)).

10

Id. at 24–30.