Establishment Clause — Lemon Test to Kennedy v. Bremerton

The Establishment Clause of the First Amendment — "Congress shall make no law respecting an establishment of religion" — prohibits the government from officially establishing, endorsing, sponsoring, or unduly entangling itself with religion. For more than fifty years, the Supreme Court applied the Lemon v. Kurtzman (1971) three-part test to assess Establishment Clause challenges: did the challenged law or action have a secular purpose, did it neither advance nor inhibit religion as its primary effect, and did it avoid excessive entanglement between government and religion? Lemon was consistently criticized — by Justices, scholars, and lower courts — as unpredictable, manipulable, and inconsistent with historical practice. In Kennedy v. Bremerton School District (2022), the Supreme Court expressly abandoned the Lemon test, replacing it with a framework grounded in "historical practices and understandings" — asking whether the challenged government action coerces religious participation or implicates historical practices historically understood to violate the Establishment Clause. The transition from Lemon to Kennedy's history-and-tradition approach is one of the most consequential shifts in constitutional doctrine in decades, with uncertain implications for government religious expression, public school prayer, religious displays on public property, government funding of religious institutions, and legislative chaplains — all now assessed under a framework that has yet to be fully elaborated.

Current Law (2026)

Legal Authority

• U.S. Const. amend. I — "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" — the Religion Clauses; Establishment Clause precedes Free Exercise Clause
• U.S. Const. amend. XIV, § 1 — Due Process Clause — the vehicle for incorporating the First Amendment against state governments; Everson v. Board of Education (1947) incorporated the Establishment Clause
• 20 U.S.C. § 4071 et seq. — Equal Access Act: requires public secondary schools receiving federal funds to allow student religious groups equal access to school facilities — the statutory framework that has generated substantial Establishment Clause litigation
• 42 U.S.C. § 2000cc et seq. — Religious Land Use and Institutionalized Persons Act (RLUIPA): prohibits governmental land use regulations that impose substantial burdens on religious exercise; reflects congressional effort to strengthen religious accommodation
• Lemon v. Kurtzman, 403 U.S. 602 (1971) — Three-part Establishment Clause test: secular purpose, no primary effect of advancing/inhibiting religion, no excessive entanglement; used for 50+ years; abandoned in Kennedy
• Engel v. Vitale, 370 U.S. 421 (1962) — State-composed school prayer unconstitutional even if non-denominational; the foundational school prayer ruling; still good law
• Lee v. Weisman, 505 U.S. 577 (1992) — Clergy-led graduation prayer unconstitutional; coercion test: government cannot coerce religious participation, even subtly; still good law
• Town of Greece v. Galloway, 572 U.S. 565 (2014) — Legislative prayer (opening town board meetings with prayer) constitutional under historical tradition analysis; precursor to Kennedy
• Kennedy v. Bremerton School District, 597 U.S. 507 (2022) — Lemon test abandoned; history-and-tradition framework adopted; coach's personal prayer at midfield after games protected; coercion remains the outer limit

Key Mechanics

The Establishment Clause provides: "Congress shall make no law respecting an establishment of religion." From 1971 to 2022, the primary test was the three-part Lemon test (Lemon v. Kurtzman, 1971): a law (1) must have a secular purpose; (2) must not have the primary effect of advancing or inhibiting religion; and (3) must not foster excessive government entanglement with religion. In Kennedy v. Bremerton School District (2022), the Court abandoned Lemon and replaced it with a "history and tradition" inquiry: whether the challenged government action is consistent with historical practices and understandings of the Establishment Clause at the time of the Founding and post-ratification period. Government-sponsored religious displays, legislative prayer, and public school religious accommodations are now analyzed under this history-and-tradition framework rather than the Lemon test.

How It Works

The Establishment Clause's Historical Background

The Establishment Clause emerged from the Framers' experience with established churches — state churches supported by taxes and privileged by law, as England's Church of England was. The American colonies had established churches in several states (Congregationalism in New England, Anglicanism in the South), and the framers of the First Amendment disagreed sharply about what "establishment" meant. Thomas Jefferson and James Madison supported strict separation of church and state; others saw only formal establishment (an official national church) as prohibited. The Amendment's text — "no law respecting an establishment of religion" — is deliberately ambiguous: it clearly bars a national established church but leaves open the extent to which government may accommodate or support religion short of formal establishment.

This ambiguity has generated more than two centuries of contested doctrine, with the Supreme Court's approach shifting significantly over time.

The Lemon Test Era (1971–2022)

Lemon v. Kurtzman (1971) arose from Rhode Island and Pennsylvania statutes that provided government salary supplements to teachers in nonpublic schools (mostly Catholic schools). The Court struck down both statutes and, in the process, articulated a general three-part test for Establishment Clause challenges:

First — Secular purpose: The challenged law or government action must have a secular legislative purpose. Laws enacted with the primary purpose of advancing religion violate the Establishment Clause even if they have some secular effect.

Second — Primary effect: The principal or primary effect must neither advance nor inhibit religion. Government action whose primary consequence is to benefit or harm religious institutions or practices violates the Establishment Clause.

Third — Excessive entanglement: The law must not foster "excessive entanglement" between government and religion. Government programs that require ongoing monitoring of religious institutions, create bureaucratic relationships between government and churches, or involve government in religious decisions create problematic entanglement.

For fifty years, the Lemon test was the formal framework for Establishment Clause cases — though it was applied inconsistently, criticized as unworkable, and often honored in the breach. Justices regularly declined to apply it, invented alternative formulations (the "endorsement test" — does the action communicate government endorsement of religion? — associated with Justice O'Connor), or simply reached results inconsistent with what Lemon seemed to require.

The Lemon test's fundamental problem: it does not map well onto American tradition. The same Framers who wrote the Establishment Clause also opened congressional sessions with chaplain prayers, proclaimed days of thanksgiving, and supported religion in various ways. A strict Lemon analysis would seem to condemn many longstanding practices that no one thought violated the Establishment Clause.

The Precursors to Kennedy: Town of Greece and American Legion

The Supreme Court signaled Lemon's impending demise in two pre-Kennedy decisions:

Town of Greece v. Galloway (2014): The Town of Greece, New York, opened its town board meetings with a prayer from a volunteer chaplain. The great majority of the prayers were Christian, and some were explicitly sectarian. Residents challenged the practice under Lemon. Justice Kennedy's majority upheld legislative prayer as consistent with historical tradition — the First Congress had chaplains; legislative prayer has been part of American public life since the founding. The Court did not mechanically apply Lemon; instead, it asked whether the practice "fits within the tradition long followed in Congress and the state legislatures."

American Legion v. American Humanist Ass'n (2019): A forty-foot World War I memorial cross on public land in Bladensburg, Maryland, had stood since 1925. A plurality opinion (Justice Alito) upheld the cross under a rationale that long-standing religious symbols on public land are not Establishment Clause violations — the symbol's meaning had evolved, it honored the fallen, and removing it would be hostile to religion, not neutral. The plurality explicitly declined to apply Lemon.

Kennedy v. Bremerton School District (2022): Lemon Abandoned

Joseph Kennedy was a public high school football coach in Bremerton, Washington. For years he had knelt alone at midfield after games and offered a brief personal prayer. Students and parents began joining him; the prayers became more elaborate. The school district, concerned about Establishment Clause liability, asked Kennedy to pray privately, away from the field. Kennedy refused and was eventually placed on administrative leave. He sued, claiming Free Exercise and Free Speech violations.

Justice Gorsuch's majority opinion held in Kennedy's favor — but the decision's most significant aspect is methodological, not its specific result. Gorsuch used Kennedy to formally inter Lemon:

Abandoning Lemon: "The Establishment Clause analysis must be rooted in historical practices and understandings. . . . This Court long ago abandoned Lemon and its endorsement test gloss. . . . The three-part Lemon test has long been criticized as both unworkable and inconsistent with the text and history of the Establishment Clause."

The new framework: The Court asks whether a challenged government action "fits within the tradition of government supported religious expression long accepted by Americans." The analysis looks to "the original meaning of the Establishment Clause, confirmed by the long traditions of American history." This is a history-and-tradition approach similar to the one the Court applied in Bruen (2022) for the Second Amendment — asking what practices were understood to be permitted or prohibited at the time of the Constitution's ratification.

The coach's prayer: Kennedy's personal prayer was protected because it was personal religious expression, not government-sponsored prayer. It occurred after the game, outside instructional time, and was initiated by Kennedy himself. The Court rejected the school district's argument that any religious expression by a public employee during the job constitutes government endorsement; the Establishment Clause does not require the government to suppress its employees' private religious expression.

Coercion remains central: The Court did not eliminate the coercion concern — government action that coerces religious participation remains unconstitutional. Kennedy's prayer was uncoerced; no student was required to participate, and the Court found no evidence of actual coercion. Engel v. Vitale (1962) — which struck down state-composed school prayer — remains good law, as does Lee v. Weisman (1992) — which struck down clergy-led graduation prayers — because those involved government-sponsored prayer directed at captive student audiences.

What Remains Clearly Unconstitutional

Despite the shift from Lemon, several categories of government action remain clearly unconstitutional under Establishment Clause doctrine:

State-composed school prayer: Engel v. Vitale (1962) is still good law. Government officials composing and directing students to recite prayers — even non-denominational ones — violates the Establishment Clause. The school prayer cases are grounded in coercion of a captive audience of minors, not just Lemon formalism.

Bible reading and prayer exercises in public schools: Abington School District v. Schempp (1963) — striking down mandatory Bible readings in public schools — similarly rests on government-directed religious exercise in the school context.

Graduation prayers with clergy: Lee v. Weisman (1992) — clergy-led graduation prayers — remains valid law. The Court's majority in Lee found coercion: students who object to graduation prayers face significant social pressure to participate in a government-sponsored event.

Religious tests for public office: Article VI prohibits religious tests as conditions for federal office; Torcaso v. Watkins (1961) applied this to state offices through the Fourteenth Amendment.

What Remains Uncertain After Kennedy

The transition from Lemon to history-and-tradition creates significant uncertainty for a range of practices that had been analyzed under Lemon:

Government funding of religious education: The Supreme Court has progressively opened the door to government funding of religious institutions through generally available programs — Zelman v. Simmons-Harris (2002) upheld Cleveland's school voucher program; Espinoza v. Montana (2020) struck down Montana's exclusion of religious schools from a scholarship program; Carson v. Makin (2022) held Maine must include religious schools in its tuition program. These cases are driven by the Free Exercise Clause as much as Establishment Clause analysis.

Religious displays on public property: After American Legion's leniency toward long-standing displays, the status of newer religious monuments, nativity scenes, Ten Commandments displays, and similar installations is uncertain. Long-standing symbols may be grandfathered; newer ones may still be challenged.

Legislative chaplains and prayer: Town of Greece upheld legislative prayer under historical tradition analysis, which the Kennedy framework reinforces. Government bodies opening sessions with prayer appear constitutionally sound.

Government employees' religious expression: Kennedy itself opens the question of how much religious expression by government employees in official settings is permissible. The coaching context was specific; the framework's application to teachers, judges, and other government officials remains to be worked out.

How It Affects You

If you are a public school student, parent, or teacher: The shift from Lemon to Kennedy's history-and-tradition framework does not revive mandatory school prayer — Engel and Schempp remain good law, and government-directed religious exercises in public schools remain unconstitutional. What Kennedy protects is the personal religious expression of individual school employees (like a coach praying privately) when that expression is not coercive or government-sponsored. As a student, you cannot be required to participate in prayer or religious activities. As a parent, you can object to school-sponsored religious activities. As a teacher, your personal, non-disruptive religious expression (praying at lunch, wearing religious symbols) is protected by both the Free Exercise Clause and the logic of Kennedy — but leading students in prayer, incorporating prayer into class time, or proselytizing to students remains prohibited. The line between personal religious expression and government-sponsored religion is more permissive after Kennedy but not eliminated.

If you are a religious organization or institution: The Kennedy era is generally favorable to religious institutions seeking to participate in public programs. The Free Exercise decisions (Espinoza, Carson) and the Kennedy Establishment Clause framework together reduce the constitutional obstacles to government funding of religious education, services, and activities. If your organization provides social services, education, or other programs that could receive government funding, the current constitutional landscape is more open than it was under Lemon's strict separation. Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Religious Freedom Restoration Act (RFRA) provide additional statutory protections. Consult with counsel about what government partnerships, funding, and activities are permissible under both the current Establishment Clause framework and applicable free exercise and RFRA analysis.

If you are a local government official, school board member, or public agency administrator: The abandonment of Lemon removes a clear, if imperfect, analytical framework and replaces it with one that requires historical analysis courts are still working out. While the Kennedy framework is generally more permissive for government religious accommodation, it creates compliance uncertainty: what has "long been accepted" in American tradition? For clearly traditional practices — legislative opening prayers, military chaplains, inclusion of religious groups in generally available programs — historical support is strong. For newer or more aggressive accommodations, consult legal counsel. Clear governmental coercion of religious participation remains unconstitutional, and government-sponsored prayer directed at captive student audiences remains prohibited regardless of Kennedy's flexibility in other contexts.

If you are a civil liberties attorney or Establishment Clause litigant: The transition from Lemon to Kennedy substantially changes the litigation landscape. Claims that once succeeded under Lemon (lack of secular purpose, primary effect of advancing religion, excessive entanglement) may no longer be viable under history-and-tradition analysis. Re-assess your litigation strategy: identify whether challenged government action (1) coerces religious participation, (2) lacks any historical analog in American tradition, or (3) involves the government directly composing or directing religious exercise. Claims that fit these categories are more likely to succeed. Challenges based on the appearance of endorsement or on Lemon's entanglement prong are substantially weaker. The Kennedy framework is new and undeveloped; early test cases will help define its contours.

State Variations

The Establishment Clause operates as a federal constitutional floor; states may provide broader separation under their own constitutions:

State Blaine Amendments: Thirty-seven states have "Blaine Amendments" — provisions in their state constitutions prohibiting public funding of religious institutions, often more stringent than the federal Establishment Clause. The Supreme Court's Espinoza v. Montana (2020) and Carson v. Makin (2022) held that state Blaine Amendments cannot be used to exclude religious schools from generally available government funding programs — the Free Exercise Clause preempts overly discriminatory Blaine Amendment applications. However, states can still restrict funding of religious education under Blaine Amendments so long as they do not discriminate specifically against religious institutions.

State establishment clauses: Many state constitutions have their own establishment clauses, sometimes more specific than the federal provision. Some explicitly prohibit use of public funds for religious worship, education, or clergy. State courts applying state establishment clauses are not bound by Kennedy's federal framework; they may continue to apply Lemon-like analysis under state constitutional law.

State legislative prayer: Most states and local governments open legislative and council sessions with prayer. Town of Greece and Kennedy provide federal constitutional cover for this practice; state courts may apply stricter state constitutional standards.

State religious displays: State and local governments have been more aggressive than the federal government in displaying religious symbols on public property (Ten Commandments in courthouses, nativity scenes on courthouse lawns). These cases continue to be litigated under both federal and state constitutional law; the Kennedy framework makes federal challenges harder but does not eliminate them.

Pending Legislation

• RFRA and Establishment Clause tension: The Religious Freedom Restoration Act (42 U.S.C. § 2000bb) requires the federal government to accommodate religious exercise unless it has a compelling interest pursued by the least restrictive means. Litigation over RFRA's scope — including whether it requires accommodation that effectively creates an establishment problem for other citizens — continues to generate cases that may eventually require the Court to address RFRA's constitutional limits.
• School vouchers and public funding: Federal proposals for education savings accounts, voucher programs, and school choice initiatives that include religious schools continue to be proposed and debated. Under current doctrine (Espinoza, Carson), federal funding that flows to religious schools through generally available programs is constitutionally permissible.
• Conscience protections and anti-discrimination law: The intersection of Establishment Clause analysis with free exercise, free speech, and anti-discrimination law — particularly regarding LGBTQ+ protections and religious objectors — is an active legislative and litigation frontier. 303 Creative LLC v. Elenis (2023) and Masterpiece Cakeshop v. Colorado (2018) addressed related free speech and free exercise questions without definitively resolving the Establishment Clause dimension.

Recent Developments

• 2019 — American Legion v. American Humanist Ass'n: The Court upheld the Bladensburg "Peace Cross" — a forty-foot World War I memorial — under a historical and tradition analysis. Justice Alito's plurality explicitly declined to apply Lemon to long-standing religious symbols. This decision foreshadowed the Kennedy abandonment of Lemon.
• 2020 — Espinoza v. Montana Department of Revenue: Montana's exclusion of religious schools from a state scholarship program violated the Free Exercise Clause. The decision established that state Blaine Amendments cannot be used to discriminate against religious schools in generally available funding programs.
• 2022 — Carson v. Makin: Maine's exclusion of religious schools from its rural tuition assistance program struck down. The decision substantially expanded the constitutional requirement that religious schools be included in public funding programs available to secular private schools.
• 2022 — Kennedy v. Bremerton School District: Lemon test formally abandoned; history-and-tradition framework adopted; coach's post-game personal prayer protected. One of the most significant doctrinal shifts in First Amendment law in decades.
• 2023 — 303 Creative LLC v. Elenis: Web designer cannot be compelled to create websites for same-sex weddings over religious objections; First Amendment (free speech) limits application of anti-discrimination law to expressive businesses. Intersects with Establishment Clause analysis regarding when government can enforce anti-discrimination laws against religious objectors.
• 2024-2026 — Lower court application of Kennedy: Courts are actively working through Kennedy's application to school-sponsored prayer, government displays, public employee religious expression, and government funding cases. The framework's full implications remain to be worked out; several cases are expected to reach the Supreme Court in the next several years.