The Establishment Clause of the First Amendment states, “Congress shall make no law respecting an establishment of religion.”
When interpreted in its most basic sense, the U.S. Congress was not allowed to do what so many European countries had done and establish an official “state church.” However, because giving money to churches is considered “establishing” them, the government has been prohibited from doing so traditionally. After the Civil War, the Bill of Rights (or first ten amendments) expanded to include prohibition of school-led prayers and Bible studies during the Civil Rights era.
To determine whether a government program violates the Establishment Clause, in 1971, the Court developed a three-part test in the case Lemon v. Kurtzman. In Lemon, the Court ruled unanimously that a Pennsylvania state program that paid for private school teachers who teach in religious schools and provided textbooks and materials. Think of it as a school voucher program, but rather than the state’s money going to the parents, it was paid to the private school teachers directly.
To avoid violating the Establishment Clause, a program had to pass each of these three tests:
- It had to have a secular legislative purpose.
- The primary effect of the statute could neither advance nor inhibit religion.
- The rule must not result in an “excessive government entanglement” with religion.
In Lemon, the teachers were required to teach only the same classes taught in public schools and could not teach religion. In Pennsylvania, 95% of the private religious schools were Catholic. As a result, the state was considered excessively entangled with Catholic education, which violated the establishment clause.
The Lemon test was modified in Agostini v. Felton (1997) when the Court developed three criteria to determine whether the government action’s primary effect advanced or inhibited religion: 1) government indoctrination; 2) whether recipients receive government benefits based on their religion, and 3) whether there is excessive entanglement between government and religion.
While the Supreme Court upheld a Maine school funding program this term, it did not undermine Lemon until the high school football coach prayer case, Kennedy v. Bremerton School District (2022), https://www.supremecourt.gov/opinions/21pdf/21-418_i425.pdf
With respect to the Free Exercise and Free Speech Issues, the Court found that the school district’s action in punishing the coach for praying rose to the strict scrutiny level and that the school district had to show a “compelling state interest” in preventing him from praying, and that the district did so in a way that was “narrowly tailored in pursuit of that interest.”
After finding that both Kennedy’s free exercise and free speech rights were violated, the Court then turned to whether the action of restricting his prayer violated the Establishment Clause. The court asked if the district met its burden of proving that its restriction on Kennedy’s prayers served a compelling interest and that the action of suspending him was narrowly tailored to advance that interest.
The majority said that Lemon no longer applied. Neither did the “endorsement test” which required deciding whether a “reasonable observer” would consider the challenged governmental action an “endorsement” of religion. Allegheny v. ACLU.
The Court’s new rule says that the Establishment Clause “must be interpreted by ‘reference to historical practices and understandings.’” The Court disagreed with the lower Ninth Circuit suggestion “that any visible religious conduct by a teacher or coach should be deemed – without more and as a matter of law – impermissibly coercive on students.”
The Court had addressed public prayer at city council meetings in the context of the “historical practices and understandings” in Town of Greece v. Galloway (2014). In the past, the Court was much more lenient with long-standing historical practices than with issues that could appear to coerce or pressure students to honor a particular religious sentiment that a government employee espoused. Students are impressionable, and the Court had recognized that parents and their religious communities had a much stronger interest in teaching their children about religion and leading them in worship and that the state should not become involved.
Justice Gorsuch, citing the District Court’s summary judgment ruling for the school district, wrote that Kennedy had a long “‘… history of engaging in religious activity with players,’ which would have led a familiar observer to believe that Kennedy was ‘continuing this tradition’ with prayer at the 50-yard line” as he had done for seven years. The Court said that there was some evidence that the practice of locker room prayers predated Kennedy’s employment.
While the Court dismantled Lemon, it left some remnants of the coercion test. However, the majority found no coercion and stated that students who did not share the coach’s beliefs should learn “… how to live in a pluralistic society.” Forbidding the coach to pray would be “hostile to religion.” Gorsuch said that the potential for coercion was a “…phantom constitutional violation” and such a false violation should not interfere with Kennedy’s “actual” free exercise and speech rights.
In her dissenting argument, Justice Sotomayor objected to the majority’s use of the phrase that permitting the coach’s religious speech was “… part of learning how to live in a pluralistic society,” language that the majority had drawn from Lee v. Weisman. Sotomayor pointed out that the Lee decision also said, “[T]he government may no more use social pressure to enforce orthodoxy than it may use more direct means.”
Instead of Lemon’s systematic approach to deciding whether a governmental act establishes religion, it will now be based on “history and tradition.”
Instead of Lemon’s systematic approach to deciding whether a governmental act establishes religion, it will now be based on “history and tradition.” In this case, it is the coach’s own personal history and tradition of praying after the game, and vague reference to a prayer practice that pre-dated him. When put in balance, Sotomayor observes that a coach who voluntarily took a job at the school is given more freedom to participate in prayer than the students who may feel pressured to participate.
Like other sweeping decisions this term, there were good arguments that Coach Kennedy should have won this case. He was praying by himself, not forcing other students to participate, and generally minded his own business with his post-game prayers, even if they became more and more popular over time. So despite whatever pressure students may have felt, it would have been enough for him to have maintained free exercise and free speech rights to pray after a game.
However, the Court went a step further and said that the district had the burden of proving that the prayer violated the Establishment Clause.
Quite frankly, had the three-part Lemon test been applied, Kennedy’s prayer would likely have been found to have violated the Establishment Clause. So the Court took an ax to the trunk of the Lemon tree, and all its subsequent fine-tuning, and replaced it with an incredibly vague rule that as long as there is some form of basis in “history and tradition,” it did not violate the Establishment Clause.
The Court took an ax to the trunk of the Lemon tree, and all its subsequent fine-tuning, and replaced it with an incredibly vague rule.
What “history and tradition” existed here? Unlike the city council prayers in Greece v. Galloway, there was no centuries-long practice of the coach holding prayers in the locker room or on the field. The majority opinion alludes to some evidence of locker room prayers, and then artfully calls back to the district court opinion (which had ruled against Kennedy) to show his “history and tradition” of holding a prayer. While there is no exact definition of how long something needs to be done before it is called a “history and tradition,” a one-person unilateral activity hardly seems to qualify when there are so many other people involved.
While the Supreme Court has referenced history and tradition to allow long-standing religious monuments, they have typically been in place for decades and to at least pretend to have some secular purpose. For instance, the Ten Commandments monument at a public park in Texas represented a “secular moral message” when erected in 1961 by the Fraternal Order of Eagles who paid to place it in a park. Van Orden v. Perry (2005). A 40-foot-tall cross that was built in 1925 by the American Legion to commemorate soldiers who had died during WWI was similarly found to have a secular purpose. American Legion v. American Humanist Association (2019).
But here, Kennedy’s own practice of praying after football games, with no secular pretensions, counted as “history and tradition” just as much as groups who had erected monuments decades ago for secular purposes.
In overturning Lemon, and simultaneously applying a much looser concept of “history and tradition,” the Court has set the stage to overturn past decisions on school prayer, Bible reading, and religious teachings in the classroom.
Many people of faith will gloss over this and say a silent “amen” as they consider the benefits of teaching children their personal religious beliefs in public school classrooms. However, if you look at this in terms of living in a “pluralistic society,” and the tolerance that Justice Gorsuch asks for when he cites Lee v. Weisman, then it becomes evident that any public school teacher’s religious belief practices could be taught in your child’s classroom. These teachers may have a very different belief system from your own. And they will have a free exercise, free speech right to say what they want and it will not violate the Establishment Clause.
For 180 days a year, your children could might be compelled to observe a religious practice that is contrary to your own beliefs, and if you complain, you’ll be told to be tolerant because this is a “pluralistic society.” Conservatives concerned about the left-leaning tendencies of some public educators might wake up when their children come home reciting doctrines about the “divine feminine” or druid spells. If this happens, religious parents will likely long for the halcyon days of separation of church and state when government employees were not indoctrinating their children with particular religious beliefs.
There is no question that the Kennedy decision and the dismantling of Lemon will have lasting effects.