Info Brief: Recent Shifts in Establishment Clause Caselaw

Learn about how the Supreme Court has shifted its approach to Establishment Clause cases in recent years.

The Establishment Clause prohibits the government from establishing or creating a religion in any way. That’s why we don’t have an official religion in the United States. However, it took quite some time before the Establishment Clause as we know it today emerged. For instance, it wasn’t until the 1940s that the Supreme Court finally held that the Establishment Clause applied against state religious entanglements. (Remember, “incorporation” only happened with the ratification of the Fourteenth Amendment and later decisions by the Supreme Court.)

Obviously, we don’t have a national church and no longer have established churches in the states. What does the Establishment Clause mean today?

Before we examine a series of specific cases, let’s first talk about the legal test that covers the Establishment Clause.

The Old Test: The Lemon Test—Lemon v. Kurtzman (1971)

There’s a legal test the Court applied to Establishment Clause cases for around 50 years, and it’s called the Lemon test, named after a 1971 case, Lemon v. Kurtzman.

To pass this test, a law had to do three things:

It had to have a secular legislative purpose.
Its primary effect had to neither advance nor inhibit religion.
The law couldn’t cause an excessive entanglement between government and religion.

Many Supreme Court Justices strongly criticized this test for decades. But the Court took a while to formally abandon it. Even so, the Supreme Court did sometimes decide Establishment Clause cases without applying it. And in some specific areas, the Court had also crafted specific, targeted “tests” to replace Lemon. So, it was a bit of a mess.

The New Test: History and Tradition

In 2022, the Supreme Court announced that it had “long ago abandoned” Lemon and “its endorsement test offshoot.” In a case called Kennedy v. Bremerton School District, the majority chose not to apply the old Lemon test and established a new history-and-tradition test for Establishment Clause cases.

As Justice Gorsuch explained in his majority opinion in Kennedy:

“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.’”

To see how this new approach will affect the Court’s First Amendment caselaw, we must await new cases applying this history-and-tradition test in the context of the Establishment Clause.

Want to join the conversation?

Sort by:

No posts yet.