{"id":2518,"date":"2022-08-08T09:00:07","date_gmt":"2022-08-08T13:00:07","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=2518"},"modified":"2025-12-22T19:46:18","modified_gmt":"2025-12-22T23:46:18","slug":"kennedy-v-bremerton-school-district-the-final-demise-of-lemon-and-the-future-of-the-establishment-clause-daniel-l-chen","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/kennedy-v-bremerton-school-district-the-final-demise-of-lemon-and-the-future-of-the-establishment-clause-daniel-l-chen\/","title":{"rendered":"Kennedy v. Bremerton School District: The Final Demise of Lemon and the Future of the Establishment Clause \u2013 Daniel L. Chen"},"content":{"rendered":"\n
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Kennedy v. Bremerton School District<\/em>: The Final Demise of Lemon <\/em>and the Future of the Establishment Clause<\/h2>\n\n\n\n

Daniel L. Chen[1]<\/a><\/h2>\n\n\n\n

Nearly three decades ago, Justice Scalia famously lamented that the much-maligned test from Lemon v. Kurtzman<\/em>[2]<\/a> remained binding precedent: \u201cLike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon <\/em>stalks our Establishment Clause jurisprudence.\u201d[3]<\/a> This past June, in Kennedy v. Bremerton School District<\/em>, the Supreme Court finally interred Lemon <\/em>once and for all, declaring that \u201cthis Court long ago abandoned Lemon <\/em>and its endorsement test offshoot.\u201d[4]<\/a> Though the precise time of death is indeterminate, all nine members of the Court now agree that Lemon <\/em>no longer governs.[5]<\/a><\/p>\n\n\n\n

In place of Lemon<\/em>\u2019s \u201cambitious, abstract, and ahistorical approach,\u201d the Court returned to \u201coriginal meaning and history,\u201d concluding that \u201cthe Establishment Clause must be interpreted by reference to historical practices and understandings.\u201d[6]<\/a> This nuanced historical approach not only offers the best way forward for resolving Establishment Clause controversies, but will also prove largely consistent with existing Supreme Court precedent.<\/p>\n\n\n\n

I.   The Lemon<\/em> Test and the Departure from History<\/strong><\/p>\n\n\n\n

Modern Establishment Clause jurisprudence began in 1947 with Everson v. Board of Education of Ewing<\/em>, when the Supreme Court for the first time incorporated the Establishment Clause against the States.[7]<\/a> From that time onwards, the Court looked primarily to historical practice to guide its Establishment Clause analyses. In Everson<\/em>, although the majority and dissent disagreed about what precisely constituted a religious establishment, both sides agreed that history served as the touchstone for their inquiries.[8]<\/a> This historical method dominated the Court\u2019s Establishment Clause jurisprudence for decades.[9]<\/a><\/p>\n\n\n\n

In 1971, in Lemon v. Kurtzman<\/em>, the Court departed from this historical inquiry.[10]<\/a> The case concerned an Establishment Clause challenge to Pennsylvania\u2019s and Rhode Island\u2019s statutes providing aid to nonpublic schools.[11]<\/a> The Pennsylvania statute provided financial reimbursements to private schools for secular educational services including teachers\u2019 salaries, textbooks, and educational materials.[12]<\/a> The Rhode Island statute supplemented the salaries of teachers of secular subjects in private schools provided the teacher did not inculcate religion in his or her classes.[13]<\/a> The Court held, in an 8-1 decision, that both laws violated the Establishment Clause because private parochial schools were able to obtain funding on equal footing with private secular schools.[14]<\/a><\/p>\n\n\n\n

The Court began its analysis by stating \u201c[t]he language of the Religion Clauses of the First Amendment is at best opaque,\u201d and that it could \u201conly dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.\u201d[15]<\/a> But instead of even attempting the type of textual or historical inquiry long demanded by its precedents, the Court assessed \u201ccumulative criteria developed by the Court\u201d and \u201cgleaned\u201d a novel three-part test to govern all Establishment Clause cases.[16]<\/a> The so-called Lemon <\/em>test prohibited any government action that (1) lacks a secular purpose, (2) has the primary effect of advancing or inhibiting religion, or (3) excessively entangles the government in religion.[17]<\/a> The Court held that Pennsylvania\u2019s and Rhode Island\u2019s statutes ran afoul of the third prong and invalidated both statutes.[18]<\/a><\/p>\n\n\n\n

Before long, the Lemon <\/em>test became the subject of withering criticism by commentators and jurists alike.[19]<\/a> The test was inherently malleable: what was meant by \u201csecular purpose,\u201d what was the baseline to compare whether religion was advanced or inhibited, and what kinds of \u201centanglement\u201d were permitted or prohibited? This baked-in indeterminacy led to unpredictability in results and conflicting (or nonexistent) guidance to lower courts. And the criticism came across the ideological spectrum. For example, Professor Jesse Choper summarized the Court\u2019s early applications of Lemon<\/em> thusly:[20]<\/a><\/p>\n\n\n\n

[A] provision for therapeutic and diagnostic health services to parochial school pupils by public employees is invalid if provided in <\/em>the parochial school,[21]<\/a> but not if offered at a neutral site, even if in a mobile unit adjacent to the parochial school.[22]<\/a> Reimbursement to parochial schools for the expense of administering teacher-prepared tests required by state law is invalid,[23]<\/a> but the state may reimburse parochial schools for the expense of administering state-prepared tests.[24]<\/a> The state may lend school textbooks to parochial school pupils because, the Court has explained, the books can be checked in advance for religious content and are \u201cself-policing\u201d;[25]<\/a> but the state may not lend other seemingly self-policing instructional items such as tape recorders and maps.[26]<\/a> The state may pay the cost of bus transportation to parochial schools,[27]<\/a> which the Court has ruled are \u201cpermeated\u201d with religion; but the state is forbidden to pay for field trip transportation visits \u201cto governmental, industrial, cultural, and scientific centers designed to enrich the secular studies of students.[28]<\/a><\/p>\n\n\n\n

The Court itself acknowledged this embarrassing jurisprudence but attempted to justify its decisions as \u201csacrific[ing] clarity and predictability for flexibility.\u201d[29]<\/a> But to many, this was but \u201ca euphemism . . . for . . . the absence of any principled rationale.\u201d[30]<\/a> Indeed, over time, the Court was forced to overrule many of its early decisions based on Lemon<\/em>.[31]<\/a><\/p>\n\n\n\n

Given this state of affairs, the Court attempted to clarify its Establishment Clause jurisprudence by modifying Lemon<\/em>\u2019s \u201ceffects\u201d prong, beginning with Justice O\u2019Connor 1984 concurrence in Lynch v. Donnelly<\/em>.[32]<\/a> This new \u201cendorsement\u201d test asked whether a \u201creasonable observer\u201d would consider the challenged government action to endorse religion. But this test fared no better.<\/p>\n\n\n\n

Utilizing the endorsement test, the Court held, for instance, that a single cr\u00e8che, surrounded by a \u201cfence-and-floral frame,\u201d bearing a plaque stating a private organization donated the display, and located in the \u201cmost public\u201d part of a county courthouse was unconstitutional.[33]<\/a> But what about a cr\u00e8che located in the \u201cheart of the shopping district\u201d that displayed a banner reading \u201cSEASONS GREETINGS\u201d along with miniature and life-sized figures of Jesus, Mary, Joseph, angels, shepherds, kings, and animals\u2014all surrounded by a Santa Claus house, reindeer, candy-striped poles, a Christmas tree, carolers, a clown, an elephant, a teddy bear, and hundreds of colored lights?[34]<\/a> Constitutional, of course.[35]<\/a><\/p>\n\n\n\n

Just like Lemon<\/em>, the endorsement test relied on \u201clittle more than intuition and a tape measure,\u201d[36]<\/a> \u201cunguided examination of marginalia,\u201d and an \u201cEstablishment Clause geometry of crooked lines and wavering shapes.\u201d[37]<\/a> This was a jurisprudence in which \u201ca judge [could] do little but announce his gestalt.\u201d[38]<\/a><\/p>\n\n\n\n

Given these shortcomings, the Court began departing from Lemon <\/em>and the endorsement test, \u201crepeatedly emphasiz[ing] [its] unwillingness to be confined to any single test or criterion in this sensitive area,\u201d[39]<\/a> and that Lemon<\/em>\u2019s three elements were \u201cno more than helpful signposts.\u201d[40]<\/a> In fact, the Court has not applied Lemon <\/em>in Establishment Clause cases in almost two decades, and in recent years, it has come back to focus on history.<\/p>\n\n\n\n

II. The Return to History<\/strong><\/p>\n\n\n\n

The push to refocus on history first occurred in Marsh v. Chambers<\/em>.[41]<\/a> There, the Court upheld the practice of opening a state legislature session with a prayer by a chaplain paid with public funds, explaining that such practices were \u201cdeeply embedded in the history and tradition of this country,\u201d such that \u201c[f]rom colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.\u201d[42]<\/a> Interestingly, Marsh <\/em>was decided only twelve years after Lemon<\/em>, but the Court did not mention Lemon<\/em>, leading Justice Brennan to state in dissent that the Court was merely \u201ccarving out an exception to the Establishment Clause, rather than reshaping\u201d it.[43]<\/a><\/p>\n\n\n\n

Town of Greece v. Galloway <\/em>came three decades later.[44]<\/a> The decision expressly relied on Marsh <\/em>to conclude that a municipality\u2019s decision to open its monthly board meetings with a prayer did not violate the Establishment Clause.[45]<\/a> To begin, the Court rejected the notion that it \u201ccarv[ed] out an exception\u201d in Marsh<\/em> and instead held that \u201cMarsh <\/em>stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.\u201d[46]<\/a> \u201cAny test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.\u201d[47]<\/a> In short, \u201cthe Establishment Clause must be <\/em>interpreted by reference to historical practices and understandings.\u201d[48]<\/a><\/p>\n\n\n\n

Most recently, in American Legion v. American Humanist Association<\/em>, a plurality of the Court explained that \u201cthe Lemon <\/em>court ambitiously attempted to find a grand unified theory of the Establishment Clause,\u201d but later cases had \u201ctaken a more modest approach that focuses on the particular issue at hand and looks to history for guidance.\u201d[49]<\/a> Notably, six members of the Court agreed Lemon <\/em>did not govern, and the dissent never once invoked Lemon <\/em>to justify its reasoning.[50]<\/a><\/p>\n\n\n\n

III. Kennedy v. Bremerton School District<\/em><\/strong><\/p>\n\n\n\n

The Court\u2019s decision in Kennedy <\/em>thus enters the scene at a time when the Supreme Court had effectively overruled Lemon<\/em>, yet lower courts had repeatedly failed to heed that instruction. The lower court opinion in Kennedy <\/em>was a prime example of this.[51]<\/a><\/p>\n\n\n\n

Joseph Kennedy, a high school football coach at Bremerton High School, made it his practice to quietly pray and give thanks at the conclusion of football games.[52]<\/a> After shaking hands with players and coaches, Kennedy would take a knee at the 50-yard line and give a brief, quiet prayer.[53]<\/a> Sometimes, Kennedy prayed on his own; other times, players would voluntarily join him; still other times, opposing players would join.[54]<\/a> Separately, Kennedy would give motivational speeches with religious imagery and pray in the locker room with his players.[55]<\/a><\/p>\n\n\n\n

The District eventually learned about Kennedy\u2019s locker-room prayers and religious speeches and asked him to cease those practices.[56]<\/a> Kennedy complied with the District\u2019s request, but also felt pressure to abandon his own private practice of quiet, on-field post-game prayers.[57]<\/a> Kennedy asked the District to allow him to continue this private religious expression, but the District refused.[58]<\/a> Although it noted that Kennedy had complied with its previous request, it forbade him from engaging in any \u201covert actions that could appear to a reasonable observer to endorse prayer.\u201d[59]<\/a> Kennedy refused to cease his practices, and the District placed him on administrative leave.[60]<\/a><\/p>\n\n\n\n

Kennedy sued under the Free Exercise Clause and the Free Speech Clause.[61]<\/a> Kennedy sought a preliminary injunction but lost in the lower courts. The Supreme Court denied certiorari, but four Justices explained that their votes were based on the preliminary posture of the case and that the denial of certiorari should not be interpreted as agreement with the lower courts\u2019 reasoning.[62]<\/a><\/p>\n\n\n\n

The case went back down, and the Ninth Circuit again ruled against Kennedy.[63]<\/a> First, the panel again rejected his Free Speech claim because it found that his expression qualified as government speech since it occurred on the field during his time as a government employee.[64]<\/a> The Ninth Circuit also noted that even if Kennedy\u2019s practices were private speech, the District had an \u201cadequate justification\u201d for its disciplinary measures: an \u201cobjective observer\u201d would conclude that the District had \u201cendorsed\u201d his religious activity by refusing to censor it, thereby violating the Establishment Clause.[65]<\/a> As to Kennedy\u2019s Free Exercise claim, the District conceded that it targeted Kennedy specifically because his conduct was religious.[66]<\/a> Nonetheless, the Ninth Circuit, applying the endorsement test, upheld the District\u2019s actions.[67]<\/a> It concluded that the District had satisfied strict scrutiny because had it failed to discipline Kennedy, the District would have violated the Establishment Clause.[68]<\/a><\/p>\n\n\n\n

The Ninth Circuit denied a petition for rehearing en banc, but eleven judges dissented. Notably, Judge Nelson explained that \u201cthe Supreme Court ha[d] effectively killed Lemon<\/em>,\u201d so the panel\u2019s reliance on that decision was misguided.[69]<\/a><\/p>\n\n\n\n

The Supreme Court began its analysis with the Free Exercise Clause.[70]<\/a> The majority explained that because the District restricted Kennedy\u2019s activities \u201cbecause of their religious character,\u201d its actions were by definition not neutral.[71]<\/a> Nor were the District\u2019s actions generally applicable.[72]<\/a> The District created a \u201cbespoke requirement\u201d that only applied to Kennedy\u2019s religious exercise and then pretextually claimed that he had failed to supervise students after games, even though other coaching staff were not required to do so.[73]<\/a><\/p>\n\n\n\n

What\u2019s important here is that even amidst ongoing discussions about the state of Free Exercise law, how to analyze neutrality and general applicability,[74]<\/a> and whether Employment Division v. Smith<\/em>[75]<\/a> should be overruled,[76]<\/a> all members of the Court\u2014including those in dissent\u2014agreed that the District\u2019s actions did not fall under Smith<\/em>\u2019s lenient standard.[77]<\/a> Indeed, the District had to concede that its policies were not neutral or generally applicable.[78]<\/a><\/p>\n\n\n\n

The Court then addressed Kennedy\u2019s Free Speech claim.[79]<\/a> The Court analyzed Kennedy\u2019s situation under the Pickering-Garcetti <\/em>framework, which sets a different, more lenient standard for restricting the speech rights of government employees.[80]<\/a> It concluded that Kennedy\u2019s prayers were his own private speech because they were not \u201c\u2018ordinarily within the scope\u2019 of his duties as a coach.\u201d[81]<\/a> Moreover, Kennedy would pray at times when other coaches were permitted to attend to personal matters, including checking sports scores on their phones and greeting friends in the stands.[82]<\/a><\/p>\n\n\n\n

What\u2019s interesting about the Court\u2019s Free Speech analysis is that the Court was not as unified as on the Free Exercise analysis. To begin, Justice Kavanaugh did not join the Court\u2019s opinion as to the Free Speech Clause at all.[83]<\/a> This is significant: the Court\u2019s Free Speech analysis explains in a footnote that because the prayer was private speech and could not be credited to the District, the Court did \u201cnot decide whether the Free Exercise Clause may sometimes demand a different analysis\u201d under the Pickering-Garcetti <\/em>framework.[84]<\/a> Justice Kavanaugh\u2019s refusal to join this part of the opinion raises the question whether he would subject Free Exercise claims to Pickering-Garcetti<\/em> at all\u2014which could mean that he believes religious expression is entitled to greater protection. This would align with his earlier stated views that government actions violating \u201cthe bedrock principle of religious equality\u201d are unconstitutional and wholly distinguishable from cases \u201cwhere the government itself is engaging in religious speech.\u201d[85]<\/a><\/p>\n\n\n\n

Justice Thomas\u2019s concurrence is similar. Justice Thomas reiterated that the Court\u2019s decision does not decide whether or how government employees\u2019 Free Exercise rights may be different from those belonging to the general public.[86]<\/a> But in so doing, he cited to a concurrence from Justice Scalia in Borough of Duryea, Pa. v. Guarnieri<\/em>, which cautioned against importing a doctrine from the Free Speech Clause into the Petition Clause.[87]<\/a> Justice Scalia\u2019s concurrence states, and Justice Thomas quotes, that any limitations on a constitutional provision must be justified by the provision\u2019s \u201chistory\u201d and \u201ctradition.\u201d[88]<\/a> And to top it off, Justice Thomas noted that \u201cthe Court has never before applied Pickering <\/em>balancing to a claim brought under the Free Exercise Clause,\u201d strongly indicating that he would not apply Pickering <\/em>in such cases.[89]<\/a><\/p>\n\n\n\n

Justice Alito\u2019s one-paragraph concurrence is of a piece, clarifying his view of the free speech issue. Justice Alito stated that the speech at issue was \u201cunlike that in any of our prior cases\u201d and agreed that the Court did not decide what standard applied under the Free Speech Clause, instead holding that the District\u2019s actions could not be justified by any standard.[90]<\/a> That may indicate, consistent with Justice Kavanaugh and Justice Thomas, that religious exercise issues may be categorically different from free speech issues. And this may be the case because unlike free speech\u2014where almost anything goes\u2014religious exercise must be both religious and sincere,[91]<\/a> meaning the types of actions protected by the Free Exercise Clause are far more limited than those protected by the Free Speech Clause.<\/p>\n\n\n\n

This brings us to the Court\u2019s Establishment Clause holding, arguably the most important part of the case. Because the Court found that the Free Exercise Clause and the Free Speech Clause protected Kennedy\u2019s religious expression, the Court had to assess whether the Establishment Clause provided any justification for the District\u2019s actions. The Court held it did not because there was \u201conly the \u2018mere shadow\u2019 of a conflict\u201d based on \u201ca misconstruction of the Establishment Clause.\u201d[92]<\/a><\/p>\n\n\n\n

That \u201cmisconstruction\u201d was the District\u2019s and the Ninth Circuit\u2019s reliance on Lemon <\/em>and the endorsement test.[93]<\/a> The Court reiterated that \u201cthe \u2018shortcomings\u2019 associated\u201d with Lemon\u2019s <\/em>\u201cambitious, abstract, and ahistorical approach to the Establishment Clause became so apparent that this Court long ago abandoned Lemon <\/em>and its endorsement test offshoot.\u201d[94]<\/a> Citing Town of Greece <\/em>and American Legion<\/em>, the Court stated that Lemon <\/em>and the endorsement test had been supplanted by a test based on \u201chistorical practices and understandings.\u201d[95]<\/a><\/p>\n\n\n\n

The Court, however, did not explain precisely how the historical analysis cashes out. To be sure, the Court held that \u201ca historically sensitive understanding of the Establishment Clause\u201d must take \u201ccoercion\u201d into account because \u201ccoercion . . . was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.\u201d[96]<\/a> And it concluded that on the facts here, the District had not demonstrated that Kennedy\u2019s private, post-game prayers coerced any students into praying.[97]<\/a> Indeed, the Court took pains to explain that \u201c[t]he exercise in question involves . . . giving \u2018thanks through prayer\u2019 briefly and by himself \u2018on the playing field\u2019 at the conclusion of each game he coaches\u201d and \u201cdoes not involve leading prayers with the team or before any other captive audience.\u201d[98]<\/a><\/p>\n\n\n\n

But at first glance, the Kennedy <\/em>opinion itself offers little more about the \u201challmarks of religious establishments,\u201d leading the dissent to claim that the majority\u2019s \u201ctest offers essentially no guidance for school administrators.\u201d[99]<\/a> A closer examination of the opinion, however, strongly suggests the path forward for future Establishment Clause cases.<\/p>\n\n\n\n

IV. So what is an Establishment of Religion?<\/strong><\/p>\n\n\n\n

In a section explaining that the Establishment Clause prohibits government coercion of religious exercise, Kennedy<\/em> states that \u201c[n]o doubt, too, coercion along these lines was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.\u201d[100]<\/a> Then, curiously, the opinion includes a footnote at the end of that sentence that includes four notable citations.[101]<\/a> That footnote, footnote 5, is a cipher for interpreting how the Court interprets the Establishment Clause by reference to history and tradition.<\/p>\n\n\n\n

The first citation is to a specific portion of Justice Scalia\u2019s dissent in Lee v. Weisman<\/em>, where he explains that \u201cone of the hallmarks of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty<\/em>.\u201d[102]<\/a> Another citation concerns James Madison\u2019s statements during the ratification debates, where he explained that Establishment Clause prohibited Congress from \u201cestablish[ing] a religion to which they would compel others to conform.\u201d[103]<\/a><\/p>\n\n\n\n

The remaining two sources are where things get really interesting. Those sources are Justice Gorsuch\u2019s concurrence in Shurtleff v. City of Boston<\/em>,[104]<\/a> a case decided earlier this Term, and well-known scholarship authored by Professor Michael McConnell,[105]<\/a> perhaps the leading law and religion scholar in the country.<\/p>\n\n\n\n

In Shurtleff<\/em>, the City of Boston created a public forum by permitting private groups to raise their own flags at City Hall.[106]<\/a> Boston permitted all types of speakers to host their events and raise flags, never rejecting a single request until a religious group sought to raise a flag that included religious imagery.[107]<\/a> Boston refused access to the religious group, asserting that permitting the group\u2019s speech would endorse religion.[108]<\/a> The Court rejected that argument, holding that Boston could not exclude speech based on the speech\u2019s religious viewpoint.[109]<\/a><\/p>\n\n\n\n

Though the majority opinion did not mention Lemon<\/em>, Justice Gorsuch\u2019s Shurtleff <\/em>concurrence explained that Lemon <\/em>was the root of the problem but had long been overruled, and in its place, courts must consult history.[110]<\/a> Importantly, his concurrence stated that \u201cour constitutional history contains some helpful hallmarks that localities and lower courts can rely on.\u201d[111]<\/a><\/p>\n\n\n\n

Citing to Professor McConnell\u2019s scholarship and adopting that position in whole, Justice Gorsuch concluded that historical establishments \u201coften bore certain other telling traits\u201d: (1) \u201cthe government exerted control over the doctrine and personnel of the established church,\u201d (2) \u201cthe government mandated attendance in the established church and punished people for failing to participate,\u201d (3) \u201cthe government punished dissenting churches and individuals for their religious exercise,\u201d (4) \u201cthe government restricted political participation by dissenters,\u201d (5) \u201cthe government provided financial support for the established church, often in a way that preferred the established denomination over other churches,\u201d and (6) \u201cthe government used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function.\u201d<\/a><\/p>\n\n\n\n

Indeed, we know that the Kennedy <\/em>opinion adopts these six hallmarks as the touchstone for future Establishment Clause challenges because it cites not just broadly to Justice Gorsuch\u2019s concurrence, but specifically to the very pages containing this analysis.[113]<\/a> And if there were any remaining doubt, footnote 5 refers specifically to Professor McConnell\u2019s original scholarship laying out these six categories.[114]<\/a> Thus, by incorporating the Shurtleff <\/em>concurrence and Professor McConnell\u2019s work, Kennedy <\/em>makes clear that government conduct violates the Establishment Clause only when that conduct exhibits these historical characteristics of a religious establishment.[115]<\/a><\/p>\n\n\n\n

Some commentators have claimed that any historical approach is lacking and would allow for religious indoctrination by public schools.[116]<\/a> But the Kennedy <\/em>opinion itself refutes this premise, explaining that the case concerned only Kennedy\u2019s private prayers, not his locker-room sermons.[117]<\/a> Indeed, the opinion strongly indicated that such cases would come out differently due to concerns about \u201ca captive audience\u201d and \u201ccompell[ing] attendance and participation in a religious exercise.\u201d[118]<\/a><\/p>\n\n\n\n

This makes sense under the historical approach. Professor McConnell has explained that \u201c[t]he historical approach is consistent with the vast majority of the Court\u2019s existing precedent, and indeed provides a better explanation for most of the cases.\u201d[119]<\/a> This includes Torcaso v. Watkins<\/em>[120]<\/a> because with test oaths, the government restricts political participation by dissenters.[121]<\/a> It includes Larkin v. Grendel\u2019s Den<\/em>[122]<\/a> because granting churches veto power over liquor licenses assigns civil authority to religious groups.[123]<\/a> And it also includes Engel v. Vitale<\/em>[124]<\/a> because in school prayer, the government controls religious doctrine by composing an official prayer.[125]<\/a><\/p>\n\n\n\n

It is important to note, then, that the historical approach will not be as disruptive as some claim.[126]<\/a> And in its favor, the historical approach provides objectivity and predictability to the Establishment Clause analysis. Rather than \u201cassume a baseline of complete secularism in government affairs,\u201d which \u201cis ahistoric, produces hostility toward religion, and impoverishes public culture,\u201d \u201c[a] more objective baseline consists of the body of historical practices that have been widely accepted throughout the nation\u2019s history and are consistent with the historical meaning of the Establishment Clause.\u201d[127]<\/a><\/p>\n\n\n\n

To be sure, important questions remain unanswered. Most notably, is sharing a single characteristic of a historical religious establishment enough to render government conduct unconstitutional? The examples from Torcaso<\/em>, Grendel\u2019s Den<\/em>, and Engel<\/em> suggest that at least in some circumstances, yes, a single hallmark is enough. But that leads to additional questions: does it depend on the specific historical establishment? Are some hallmarks more important than others? And if more than a single hallmark is necessary, should a \u201csliding scale\u201d approach apply whereby stronger showings on some hallmarks make up for weaker showings on others?<\/p>\n\n\n\n

Kennedy <\/em>doesn\u2019t answer these questions, but that isn\u2019t unusual. Often, when the Court announces a new rule of constitutional law, it provides a general principle that requires future elaboration. For example, even in the religious liberty context, lawyers need only look back ten years to Hosanna-Tabor Lutheran Church v. EEOC<\/em>,[128]<\/a> where the Supreme Court recognized the existence of the ministerial exception. There, the Court determined that the plaintiff\u2019s formal title, the substance reflected in that title, the plaintiff\u2019s own use of that title, and the important religious functions performed by the plaintiff all weighed in favor of concluding that she was a minister.[129]<\/a><\/p>\n\n\n\n

Though the Court looked at these four factors, it did not fully explain whether all four were necessary or how they might relate to each other.[130]<\/a> But it didn\u2019t have to, as the case was easily resolved because the plaintiff fulfilled all four of them.[131]<\/a> Over time, however, the lower courts applied and refined the factors and concluded that the fourth factor\u2014the important religious functions performed by an employee\u2014was the most important.[132]<\/a> And before long, the Supreme Court confirmed this by holding that \u201cthe significance of th[e] factors\u201d in Hosanna-Tabor <\/em>\u201cdid not mean that they must be met\u2014or even that they are necessarily important\u2014in all other cases.\u201d[133]<\/a> Instead, \u201c[w]hat matters, at bottom, is what an employee does.\u201d[134]<\/a><\/p>\n\n\n\n

Kennedy <\/em>utilizes this same approach. This does create a measure of ambiguity, but it can also be considered \u201ca commendable example of judicial minimalism\u201d whereby \u201cthe Court decides this case, and states a general principle, but does not try to work out all its implications in advance, in the abstract.\u201d[135]<\/a> Instead, Establishment Clause jurisprudence will be decided in future cases with concrete facts, and it will require additional legal scholarship to further elaborate the contours of historical religious establishments.<\/p>\n\n\n\n

[1]<\/a> Daniel Chen is counsel at the Becket Fund for Religious Liberty. Becket filed an amicus brief in the case discussed in this article, but the views expressed here do not necessarily reflect the views of Becket or its clients. The author thanks his colleagues Lori Windham, Becky Ricketts, Eric Rassbach, and Hari Asuri for their thoughts and contributions. John Heo and Ari Spitzer provided excellent editorial assistance. Any errors are his own.<\/p>\n\n\n\n

[2]<\/a> 403 U.S. 602 (1971).<\/p>\n\n\n\n

[3]<\/a> Lamb\u2019s Chapel v. Ctr. Moriches Union Free Sch. Dist.<\/em>, 508 U.S. 384, 398 (1993) (Scalia, J., concurring).<\/p>\n\n\n\n

[4]<\/a> 142 S. Ct. 2407, 2427 (2022); see also id.<\/em> at 2449 (Sotomayor, J., dissenting) (\u201cThe Court now goes much further, overruling Lemon <\/em>entirely and in all contexts.\u201d).<\/p>\n\n\n\n

[5]<\/a> See id.<\/em><\/p>\n\n\n\n

[6]<\/a> Id. <\/em>at 2428 (quoting Town of Greece, N.Y. v. Galloway<\/em>, 572 U.S. 565, 576 (2014)).<\/p>\n\n\n\n

[7]<\/a> 330 U.S. 1 (1947).<\/p>\n\n\n\n

[8]<\/a> Compare<\/em> id<\/em>. at 9\u201315 (surveying history of religious establishments in England and the colonies) with<\/em> id.<\/em> at 33 (Rutledge, J., dissenting) (\u201cNo provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment.\u201d).<\/p>\n\n\n\n

[9]<\/a> See, e.g.<\/em>, McGowan v. Maryland, 366 U.S. 420, 437\u201340 (1961) (examining \u201cthe place of Sunday Closing Laws in the First Amendment\u2019s history\u201d); Torcaso v. Watkins, 367 U.S. 488, 490 (1961) (invalidating religious test oaths because they were one of the elements of \u201cthe formal or practical\u201d religious establishments that \u201cmany of the early colonists left Europe and came here hoping to\u201d escape); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 294 (1963) (Brennan, J., concurring) (\u201c[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers\u201d); Walz v. Tax Comm\u2019n of City of N.Y., 397 U.S. 664, 680 (1970) (upholding tax exemptions for churches based on \u201cmore than a century of our history and uninterrupted practice\u201d); see also <\/em>Shurtleff v. City of Boston, 142 S. Ct. 1583, 1606 n.6 (2022) (Gorsuch, J., concurring) (collecting these cases).<\/p>\n\n\n\n

[10]<\/a> 403 U.S. 602 (1971).<\/p>\n\n\n\n

[11]<\/a> Id.<\/em> at 607\u2013610.<\/p>\n\n\n\n

[12]<\/a> Id.<\/em><\/p>\n\n\n\n

[13]<\/a> Id.<\/em><\/p>\n\n\n\n

[14]<\/a> Id.<\/em> at 625.<\/p>\n\n\n\n

[15]<\/a> Id.<\/em> at 612.<\/p>\n\n\n\n

[16]<\/a> Id<\/em>.<\/p>\n\n\n\n

[17]<\/a> Id.<\/em><\/p>\n\n\n\n

[18]<\/a> Id.<\/em> at 614\u201322.<\/p>\n\n\n\n

[19]<\/a> See, e.g.<\/em>, Mark V. Tushnet, Reflections on the Role of Purpose in the Jurisprudence of the Religion Clauses<\/em>, 27 Wm. & Mary L. Rev. 997, 1004 (1986) (explaining that cases involving \u201c\u2018deeply ingrained practices\u2019\u201d as \u201cnot readily susceptible to analysis under the ordinary Lemon<\/em> approach\u201d); Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, <\/em>81 Colum. L. Rev. 1373, 1380\u201388 (1981) (criticizing the \u201cunstructured expansiveness of the entanglement notion\u201d and the potential that certain constructions of the effects prong may result in \u201cthe establishment clause threaten[ing] to swallow the free exercise clause\u201d); Jesse H. Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict<\/em>, 41 U. Pitt. L. Rev. 673, 680\u201381 (1980); Lamb\u2019s Chapel v. Ctr. Moriches Union Free School Dist., 508 U.S. 384, 398\u201399 (Scalia, J., concurring) (\u201c[As of 1993], no fewer than five of the currently sitting Justices have\u201d called for Lemon <\/em>to be overruled, \u201cand a sixth has joined an opinion doing so.\u201d (collecting cases)).<\/p>\n\n\n\n

[20]<\/a> Choper, supra<\/em> note 19, at 680\u201381.<\/p>\n\n\n\n

[21]<\/a> Meek v. Pittenger, 421 U.S. 349 (1975).<\/p>\n\n\n\n

[22]<\/a> Wolman v. Walter, 433 U.S. 229 (1977).<\/p>\n\n\n\n

[23]<\/a> Levitt v. Comm. for Pub. Educ., 413 U.S. 472 (1973).<\/p>\n\n\n\n

[24]<\/a> Comm. for Pub. Educ. v. Regan, 444 U.S. 646 (1980).<\/p>\n\n\n\n

[25]<\/a> Board of Educ. v. Allen, 392 U.S. 236 (1968).<\/p>\n\n\n\n

[26]<\/a> Meek<\/em>, 421 U.S. 349.<\/p>\n\n\n\n

[27]<\/a> Everson v. Board of Educ., 330 U.S. 1 (1947).<\/p>\n\n\n\n

[28]<\/a> Wolman v. Walter, 433 U.S. 229, 252 (1977).<\/p>\n\n\n\n

[29]<\/a> Regan<\/em>, 444. U.S. at 662.<\/p>\n\n\n\n

[30]<\/a> Choper, supra<\/em> note 19, at 681.<\/p>\n\n\n\n

[31]<\/a> Michael W. McConnell, No More (Old) Symbol Cases<\/em>, 2019 Cato Sup. Ct. Rev. 91, 104 (2019) (citing Agostini v. Felton<\/em>, 521 U.S. 203 (1997) (overruling Sch. Dist. v. Ball<\/em>, 473 U.S. 373 (1985) and Aguilar v. Felton<\/em>, 473 U.S. 402 (1985)); Mitchell v. Helms, 530 U.S. 793 (2000) (plurality) (overruling Wolman v. Walter<\/em>, 433 U.S. 229 (1977), and Meek v. Pittenger<\/em>, 421 U.S. 349 (1975)).<\/p>\n\n\n\n

[32]<\/a> 465 U.S. 668, 688 (1984) (O\u2019Connor, J., concurring); see, e.g.<\/em>, County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 593 (1989); Allegheny<\/em>, 492 U.S. at 630 (O\u2019Connor, J., concurring in part and concurring in judgment).<\/p>\n\n\n\n

[33]<\/a> Allegheny<\/em>, 492 U.S. at 579\u201381.<\/p>\n\n\n\n

[34]<\/a> Lynch<\/em>, 465 U.S. at 671.<\/p>\n\n\n\n

[35]<\/a> Id.<\/em><\/p>\n\n\n\n

[36]<\/a> Allegheny<\/em>, 492 U.S. at 675\u201376 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part).<\/p>\n\n\n\n

[37]<\/a> Lamb\u2019s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 399 (1993) (Scalia, J., concurring).<\/p>\n\n\n\n

[38]<\/a> Am. Jewish Congress v. City of Chicago, 827 F.2d 120, 129 (7th Cir. 1987) (Easterbrook, J., dissenting); see also <\/em>Utah Highway Patrol Ass\u2019n v. Am. Atheists, Inc., 132 S. Ct. 13, 14\u201315, 17, 19, 21\u201322 & n.3 (2011) (Thomas, J., dissenting from denial of certiorari) (\u201cEstablishment Clause jurisprudence [is] in shambles,\u201d \u201cnebulous,\u201d \u201cerratic,\u201d \u201cno principled basis,\u201d \u201cEstablishment Clause purgatory,\u201d \u201cimpenetrable,\u201d \u201cad hoc patchwork,\u201d \u201climbo,\u201d \u201cincapable of consistent application,\u201d and a \u201cmess.\u201d).<\/p>\n\n\n\n

[39]<\/a> Lynch v. Donnelly, 465 U.S. 668, 679 (1984).<\/p>\n\n\n\n

[40]<\/a> Van Order v. Perry, 545 U.S. 677, 686 (2005) (quoting Hunt v. McNair<\/em>, 413 U.S. 734, 741 (1973)).<\/p>\n\n\n\n

[41]<\/a> 463 U.S. 783 (1983).<\/p>\n\n\n\n

[42]<\/a> Id<\/em>. at 786.<\/p>\n\n\n\n

[43]<\/a> Id.<\/em> at 796 (Brennan, J., dissenting).<\/p>\n\n\n\n

[44]<\/a> 572 U.S. 565 (2014).<\/p>\n\n\n\n

[45]<\/a> Id.<\/em> at 575.<\/p>\n\n\n\n

[46]<\/a> Id<\/em>. at 575, 577.<\/p>\n\n\n\n

[47]<\/a> 572 U.S. at 577.<\/p>\n\n\n\n

[48]<\/a> Id<\/em>. at 576 (emphasis added).<\/p>\n\n\n\n

[49]<\/a> Am. Legion v. Am. Humanist Ass\u2019n, 139 S. Ct. 2067, 2087 (2019).<\/p>\n\n\n\n

[50]<\/a> 139 S. Ct. at 2103\u201313 (Ginsburg, J., dissenting).<\/p>\n\n\n\n

[51]<\/a> See <\/em>Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004 (9th Cir. 2021).<\/p>\n\n\n\n

[52]<\/a> Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2416 (2022).<\/p>\n\n\n\n

[53]<\/a> Id.<\/em><\/p>\n\n\n\n

[54]<\/a> Id.<\/em><\/p>\n\n\n\n

[55]<\/a> Id.<\/em> The dissent asserted that these facts should have played a part in the majority\u2019s reasoning. But at the time of its decision, the District only justified its actions based on Kennedy\u2019s private post-game prayers. As the Court explained, \u201c[g]overnment \u2018justification[s]\u2019 for interfering with First Amendment rights \u2018must be genuine, not hypothesized or invented post hoc <\/em>in response to litigation.\u2019\u201d Id.<\/em> at 2432 (quoting United States v. Virginia<\/em>, 518 U.S. 515, 533 (1996)).<\/p>\n\n\n\n

[56]<\/a> Id.<\/em> at 2416.<\/p>\n\n\n\n

[57]<\/a> Id.<\/em> at 2417.<\/p>\n\n\n\n

[58]<\/a> Id.<\/em><\/p>\n\n\n\n

[59]<\/a> Id.<\/em> at 2418.<\/p>\n\n\n\n

[60]<\/a> Id.<\/em> at 2418\u201319.<\/p>\n\n\n\n

[61]<\/a> Id.<\/em> at 2419.<\/p>\n\n\n\n

[62]<\/a> 139 S. Ct. 643 (2019).<\/p>\n\n\n\n

[63]<\/a> 991 F.3d 1004 (9th Cir. 2021).<\/p>\n\n\n\n

[64]<\/a> Id.<\/em> at 1014\u201316.<\/p>\n\n\n\n

[65]<\/a> Id.<\/em> at 1018\u201319.<\/p>\n\n\n\n

[66]<\/a> Id.<\/em> at 1020.<\/p>\n\n\n\n

[67]<\/a> Id.<\/em> at 1020\u201321.<\/p>\n\n\n\n

[68]<\/a> Id.<\/em><\/p>\n\n\n\n

[69]<\/a> 4 F.4th 910, 945\u201346 (9th Cir. 2021) (Nelson, J., dissenting from the denial of rehearing en banc).<\/p>\n\n\n\n

[70]<\/a> 142 S. Ct.  at 2421.<\/p>\n\n\n\n

[71]<\/a> Id.<\/em> at 2422.<\/p>\n\n\n\n

[72]<\/a> Id.<\/em><\/p>\n\n\n\n

[73]<\/a> Id.<\/em> at 2423.<\/p>\n\n\n\n

[74]<\/a> See, e.g.<\/em>, Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020); Tandon v. Newsom, 141 S. Ct. 1294 (2021).<\/p>\n\n\n\n

[75]<\/a> 494 U.S. 872 (1990).<\/p>\n\n\n\n

[76]<\/a> Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1883 (Alito, J., concurring).<\/p>\n\n\n\n

[77]<\/a> See Kennedy<\/em>, 142 S. Ct. at 2426 n.3; id.<\/em> at 2446 (Sotomayor, J., dissenting).<\/p>\n\n\n\n

[78]<\/a> Id.<\/em> at 2422.<\/p>\n\n\n\n

[79]<\/a> Id.<\/em> at 2423.<\/p>\n\n\n\n

[80]<\/a> Id.<\/em><\/p>\n\n\n\n

[81]<\/a> Id.<\/em> at 2424.<\/p>\n\n\n\n

[82]<\/a> Id.<\/em> at 2425.<\/p>\n\n\n\n

[83]<\/a> Id.<\/em> at 2411.<\/p>\n\n\n\n

[84]<\/a> Id.<\/em> at 2425 n.2.<\/p>\n\n\n\n

[85]<\/a> Morris Cty Bd. of Chosen Freeholders v. Freedom from Religion Found., 139 S. Ct. 909 (2019) (Kavanaugh, J., respecting the denial of certiorari); Shurtleff v. City of Boston, 142 S. Ct. 1583, 1594\u201395 (2022) (Kavanaugh, J., concurring).<\/p>\n\n\n\n

[86]<\/a> Kennedy<\/em>, 142 S. Ct. at 2433 (Thomas, J., concurring).<\/p>\n\n\n\n

[87]<\/a> Id.<\/em> (citing Borough of Duryea, Pa. v. Guarnieri<\/em>, 564 U.S. 379. 405\u201306 (2011) (Scalia, J., concurring in part)).<\/p>\n\n\n\n

[88]<\/a> Kennedy<\/em>, 142 S. Ct. at 2433 (Thomas, J., concurring).<\/p>\n\n\n\n

[89]<\/a> Id.<\/em><\/p>\n\n\n\n

[90]<\/a> Id.<\/em> at 2433\u201334 (Alito, J., concurring).<\/p>\n\n\n\n

[91]<\/a> See, e.g., <\/em>Wisconsin v. Yoder, 406 U.S. 205, 235 (1972) (\u201cThe Amish in this case have convincingly demonstrated the sincerity of their religious beliefs[.]\u201d); id<\/em>. at 216 (belief that is \u201cphilosophical and personal rather than religious . . . does not rise to the demands of the Religion Clauses.\u201d).<\/p>\n\n\n\n

[92]<\/a> Kennedy<\/em>, 142 S. Ct. at 2432.<\/p>\n\n\n\n

[93]<\/a> Id.<\/em><\/p>\n\n\n\n

[94]<\/a> Id.<\/em> at 2427.<\/p>\n\n\n\n

[95]<\/a> Id.<\/em> at 2428.<\/p>\n\n\n\n

[96]<\/a> Id.<\/em> at 2429.<\/p>\n\n\n\n

[97]<\/a> Id.<\/em><\/p>\n\n\n\n

[98]<\/a> Id.<\/em> at 2416; see also id.<\/em> at 2432 n.7.<\/p>\n\n\n\n

[99]<\/a> Id.<\/em> at 2450 (Sotomayor, J., dissenting).<\/p>\n\n\n\n

[100]<\/a> Id.<\/em> at 2429.<\/p>\n\n\n\n

[101]<\/a> Id. <\/em>at 2429 n.5.<\/p>\n\n\n\n

[102]<\/a> 505 U.S. 577, 640\u201342 (1992) (Scalia, J., concurring) (emphasis in original).<\/p>\n\n\n\n

[103]<\/a> 1 Annals of Cong. 730\u201331 (1789).<\/p>\n\n\n\n

[104]<\/a> 142 S. Ct. 1583, 1609 (Gorsuch, J., concurring).<\/p>\n\n\n\n

[105]<\/a> Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105 (2003).<\/p>\n\n\n\n

[106]<\/a> Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022).<\/p>\n\n\n\n

[107]<\/a> Id.<\/em> at 1588.<\/p>\n\n\n\n

[108]<\/a> Id<\/em>.<\/p>\n\n\n\n

[109]<\/a> Id.<\/em> at 1593.<\/p>\n\n\n\n

[110]<\/a> Id.<\/em> at 1604 (Gorsuch, J., concurring).<\/p>\n\n\n\n

[111]<\/a> Id.<\/em> at 1609.<\/p>\n\n\n\n

[112]<\/a> Id.<\/em> (citing McConnell, supra <\/em>note 105, at 2131\u201381).<\/p>\n\n\n\n

[113]<\/a> Kennedy<\/em>, 142 S. Ct. at 2429 n.5 (citing Shurtleff<\/em>, 142 S. Ct. at 1609\u201310 (Gorsuch, J., concurring).<\/p>\n\n\n\n

[114]<\/a> Id.<\/em> at 2429 n.5.<\/p>\n\n\n\n

[115]<\/a> Shurtleff<\/em>, 142 S. Ct. at 1609\u201310 (Gorsuch, J., concurring); McConnell, supra <\/em>note 105 at 2115\u201330 (explaining different hallmarks of establishment present in various degrees among the colonies).<\/p>\n\n\n\n

[116]<\/a> See, e.g., <\/em>Mark Joseph Stern, Supreme Court Lets Public Schools Coerce Students Into Practicing Christianity<\/em>, Slate (June 27, 2022, 4:19 PM), https:\/\/slate.com\/news-and-politics\/2022\/06\/coach-kennedy-bremerton-prayer-football-public-school.html.<\/p>\n\n\n\n

[117]<\/a> Kennedy<\/em>, 142 S. Ct. at 2422.<\/p>\n\n\n\n

[118]<\/a> Id.<\/em> at 2431\u201332 (cleaned up).<\/p>\n\n\n\n

[119]<\/a> Michael W. McConnell, The Supreme Court And The Cross<\/em>, Hoover Institution (Mar. 1, 2019), https:\/\/www.hoover.org\/research\/supreme-court-and-cross.<\/p>\n\n\n\n

[120]<\/a> 367 U.S. 488 (1961).<\/p>\n\n\n\n

[121]<\/a> McConnell, supra<\/em> note 119.<\/p>\n\n\n\n

[122]<\/a> 459 U.S. 116 (1982).<\/p>\n\n\n\n

[123]<\/a> McConnell, supra<\/em> note 119.<\/p>\n\n\n\n

[124]<\/a> 370 U.S. 421 (1962).<\/p>\n\n\n\n

[125]<\/a> McConnell, supra<\/em> note 119. See also Shurtleff<\/em>, 142 S. Ct. at 1609 (Gorsuch, J., concurring).<\/p>\n\n\n\n

[126]<\/a> Indeed, Lemon <\/em>has already been overruled in its original context of assessing whether religious organizations can be included in public-benefit programs. The Court now determines whether the government program grants benefits based on \u201cneutral, secular criteria\u201d and whether there exists a \u201chistoric and substantial\u201d tradition against including religious organizations. Zelman v. Simmons-Harris, 536 U.S. 639, 653 (2002); Espinoza v. Montana Dep\u2019t of Revenue, 140 S. Ct. 2246, 2258 (2020).<\/p>\n\n\n\n

[127]<\/a> McConnell, supra <\/em>note 119.<\/p>\n\n\n\n

[128]<\/a> 565 U.S. 171 (2012).<\/p>\n\n\n\n

[129]<\/a> Id.<\/em> at 192.<\/p>\n\n\n\n

[130]<\/a> Id.<\/em> at 190 (\u201cWe are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister.\u201d).<\/p>\n\n\n\n

[131]<\/a> Id.<\/em> at 190 (\u201cIt is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.\u201d).<\/p>\n\n\n\n

[132]<\/a> See, e.g., <\/em>Temple Emanuel of Newton v. Mass. Comm’n Against Discrimination, 463 Mass. 472, 486, 975 N.E.2d 433, 443 (2012) (\u201cTherefore, the ministerial exception applies to the school\u2019s employment decision regardless whether a religious teacher is called a minister or holds any title of clergy.\u201d); Cannata v. Cath. Diocese of Austin, 700 F.3d 169, 177 (5th Cir. 2012) (\u201cApplication of the exception, however, does not depend on a finding that Cannata satisfies the same considerations that motivated the Court to find that Perich was a minister within the meaning of the exception. Rather, it is enough to note that there is no genuine dispute that Cannata played an integral role in the celebration of Mass and that by playing the piano during services, Cannata furthered the mission of the church and helped convey its message to the congregants.\u201d); Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 835 (6th Cir. 2015) (\u201c[W]e . . . hold that where both factors\u2014formal title and religious function\u2014are present, the ministerial exception clearly applies.\u201d); Fratello v. Archdiocese of N.Y., 863 F.3d 190, 205 (2d Cir. 2017) (\u201cWhere, as here, the four considerations are relevant in a particular case, \u2018courts should focus\u2019 primarily \u2018on the function[s] performed by persons who work for religious bodies.\u2019\u201d (citation omitted)); Grussgott v. Milwaukee Jewish Day Sch., Inc., 882 F.3d 655, 658 (7th Cir. 2018) (\u201c[O]ther courts of appeals have explained that the same four considerations need not be present in every case involving the exception.\u201d).<\/p>\n\n\n\n

[133]<\/a> Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2063, 207 L. Ed. 2d 870 (2020).<\/p>\n\n\n\n

[134]<\/a> Id<\/em>. at 2064.<\/p>\n\n\n\n

[135]<\/a> Michael W. McConnell, Reflections on <\/em>Hosanna-Tabor, 35 Harv. J. L. & Pub. Pol\u2019y 821, 835 (2012).<\/p>\n\n\n\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

Kennedy v. Bremerton School District: The Final Demise of Lemon and the Future of the Establishment Clause Daniel L. Chen[1] Nearly three decades ago, Justice Scalia famously lamented that the much-maligned test from Lemon v. Kurtzman[2] remained binding precedent: \u201cLike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence.\u201d[3] This past June, in Kennedy v. 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