The Abrogation of the Lemon Test and Religion in Public Education

In the 2024 Legislative Session, Louisiana made headlines with HB71, colloquially known as the “Ten Commandments Law,” requiring the display of the Ten Commandments within every public classroom in the state [1]. This move represents a broader shift in Constitutional interpretation, catalyzed by the Supreme Court’s new approach to interpreting the Establishment Clause, the portion of the First Amendment that prohibits the government from making laws establishing religion. For instance, in Kennedy v. Bremerton (2022), a case that permitted a high school football coach to lead prayer midfield after games, the Court formally abandoned the longstanding Lemon test in favor of an approach that emphasizes “historical practices and understandings” [2]. The Lemon Test was a three-pronged approach to interpreting the Establishment Clause, derived from the case Lemon v. Kurtzman (1971). Under this test, government interaction with religion: (1) “must have a secular legislative purpose,” (2) must have a “principal or primary effect…that neither advances nor inhibits religion,” and (3) “must not foster ‘an excessive government entanglement with religion’” [3]. As such, the Court’s shift away from the Lemon Test results in the adoption of a more originalist, and thereby accommodationist, view of religious presence in public education. Louisiana’s Ten Commandments Law is patently unconstitutional, yet it represents just one of many legislative efforts stemming from the Supreme Court’s abrogation of the Lemon test. The Court’s newfound interpretation of the Establishment Clause is a step too far into accommodationism through originalism, and it endangers the distinction between religion and public education.

The most salient effect of the Court’s rejection of the Lemon test is simultaneously its strongest counterargument; laws like Louisiana’s HB71 are evidence of the threat that the commonly understood separation of religion and education faces because of the Kennedy ruling. The posting of Ten Commandments in classrooms was ruled unconstitutional 44 years ago in a case that stemmed from a Kentucky replica of the Louisiana law [4]. In the majority decision of Stone v. Graham (1980), the Justices penned that the Kentucky law (which compelled every classroom in the state to post the Ten Commandments) was “plainly religious in nature” and served “no constitutional educational function” [5]. Thus, the law failed the first tenet of the Lemon Test (serving a secular purpose) and violated the Establishment Clause [6]. As shown by Stone, the Supreme Court has previously recognized the need to separate religious content from the otherwise arguably enriching content taught in schools. Though few would object to signs in classrooms discouraging murder (as listed in the Ten Commandments), the presence of religious commandments related to the Sabbath and the Lord [] disqualifies the Ten Commandments from being a document disseminated—and therefore, in the eyes of many, endorsed—by the government [7]. Given these pretenses, it is hard to imagine anything but the marked change in the composition of the Court to have precipitated renewed Constitutional challenges such as Louisiana’s. Louisiana HB71 is functionally a thermometer for religious legal activists to see how far the Court will lean into the expansion of religious visibility in schools.

In addition to abandoning the Lemon Test, the ruling in Kennedy defangs the coercive test for determining constitutionality, an essential component of Establishment Clause jurisprudence. The authors of the Bill of Rights were informed by governmental coercion towards religious participation, which has continued to inform the perception of religion by government officials and educators today. The Supreme Court’s landmark ruling in Engel v. Vitale (1962), decided before the era of the Lemon test, was the first case to institutionalize the role of coercion in policy surrounding religion in schools [8]. In this case, the New York Board of Regents was challenged over its optional daily prayer; the Justices held that the government’s creation of prayers for students to repeat violated the separation of religion and education. The Court found that even though students were not explicitly forced to participate in the daily prayers, an “indirect coercive pressure on religious minorities to conform” existed, leading, in part, to the end of the practice [9].

Similarly, in the dissenting opinion in Kennedy, Justice Sotomayor emphasizes the existence of vast case law that supports the reasonable conclusion that school-sponsored religious activities can often be coercive [10]. She points to the presence of “subtle coercive pressure” in Lee v. Weisman (1992), a case regarding prayers at public school ceremonies, and the view of “teachers as role models” and children’s “susceptibility to peer pressure” in Edwards v. Aguillard (1987), a case that prohibited the mandated teaching of “creation science” along with evolution [11] [12]. The treatment of religion in schools is well-defined within modern jurisprudence, but this precedent is precisely what the current Court is challenging. In the majority opinion of Kennedy, Justice Gorsuch contends that the common view of coercion would hold “any visible religious conduct by a teacher or coach…impermissibly coercive on students” [13]. He continues, explaining that the dissenting opinion would even have a teacher fired “for quietly praying over their lunch” or “for wearing a yarmulke to school” [14]. However, these forms of private religious exercise are clearly protected, and these arguments miss the mark in contesting government establishment of religion. In Kennedy, the case was spurred because Coach Kennedy led prayers with his players at the fifty-yard line while postgame activities were still occurring [15]. As the controversy continued, the occurrence was quickly sensationalized as media and politicians capitalized on the conflict. Yet, Kennedy’s school district even detailed that he would be allowed to engage in religious activities “so long as it does not interfere with job responsibilities” [16]. The facts of Kennedy demonstrate that officials like teachers can still retain their Free Exercise right to participate in private religious activities. They simply cannot lead religious activities when in a professional didactic capacity, where even well-intentioned and non-compulsory exercises may unduly coerce students.

The abandonment of the Lemon test has also entangled schools in the decision-making process regarding the enforcement of the Establishment Clause. This overly expansive interpretation of constitutionality unfairly positions school officials in a judicial role, as decisions made by school officials are often unpopular [17]. For example, Oklahoma’s State Superintendent recently mandated the incorporation of the Bible into lessons for fifth through twelfth grades, advocating for the Bible to be studied through critical literary analysis, historical contextualization, and even artistic appreciation [18]. Similarly, Florida, Louisiana, and Texas recently passed laws allowing religious chaplains to be hired in place of counselors in public schools, a move decried by school boards across the states [19]. The third tenet of the Lemon test specifically addressed the broad entanglement between religion and policymaking, with the key intention of preventing the politicization and government oversight of religion [20]. However, in a post-Lemon environment, the government is entangled in both religion and policymaking. As indicated by recent state laws, the government has become inordinately involved in the politicization of religion. The Lemon test offered a much simpler picture for educational officials, a chief reason that its hasty abrogation was remiss.

A glaring exception to the even application of the Lemon test lies within Marsh v. Chambers (1992), where Chief Justice Burger briefly sidestepped the approach in favor of a historical understanding [21]. In this case, the Nebraska legislature was challenged for its hiring of a chaplain to pray at the beginning of each legislative session. The challenge failed; the paid chaplaincy was allowed as it could be traced by custom back to the First Continental Congress. As such, in his Kennedy opinion, Justice Gorsuch references Marsh as a fatal blow to the Lemon test’s legal standing and as reasoning for his decision in the case [22]. However, Justice Gorsuch’s analysis overlooks a key distinction between environments of religious exercise and a broader dichotomy between Marsh and Kennedy. In Marsh, the legislature’s decision to hire a chaplain would violate the Lemon test, absent a strong history of custom [23]. However, in addition to having the support of legal precedent, the legislation in Marsh induces no elements of coercion involving children, entanglement of educators, or precedent-overturning legal theories. And, frankly, the Lemon test is imperfect. There are special cases, like the invocation of a legislature, where historical context is important in deciding an exception to the general rule. Nonetheless, arguments against the Lemon test as an institution do not positively justify alternative tests or the case for the ruling in Kennedy. The principles of the Lemon test have endured exceptions and modifications, and they ought to endure Kennedy.

The Supreme Court’s stated abandonment of the Lemon test has encouraged a proliferation of legislation favoring an accommodationist standpoint of religion in public education. Some states have capitalized on the signals from an ideologically shifted Court, pushing the boundaries of what will be approved. Moving forward, the Court should cautiously err against overturning modern American understandings of religion in public education, especially as it grapples with continued criticism regarding its legitimacy and ethics. Besides the purely constitutional contentions, a continued movement toward once-rejected, unpopular legislation will continue to denigrate public trust in the Court. Although the Lemon test as an institution was often imperfect, it offered a broad conception of Establishment Clause application for decades. But most importantly, the principles of the test long predated its existence by name; in the best case, these same principles will long outlive it, too.

Bibliography

[1] Kevin McGill, “Ten Commandments won’t go in some Louisiana classrooms until at least November as lawsuit plays out,” AP News, July 19, 2024, https://apnews.com/article/louisia na-ten-commandments-lawsuit-school-classroom-053e240631a8fe37e99b7543413dbaee.

[2] Kennedy v. Bremerton School District, 597 U.S. ___ (2022).

[3] Lemon v. Kurtzman, 403 U.S. 602 (1970).

[4] Stone v. Graham, 449 U.S. 39 (1980).

[5] Ibid.

[6] 403 U.S. 602 (1970).

[7] Exod. 20:1-17 NAB.

[8] Engel v. Vitale, 370 U.S. 421 (1962).

[9] Ibid.

[10] 597 U.S. ___ (2022).

[11] Lee v. Weisman, 505 U.S. 577 (1992).

[12] Edwards v. Aguillard, 482 U.S. 578 (1987).

[13] 597 U.S. ___ (2022).

[14] 597 U.S. ___ (2022).

[15] 597 U.S. ___ (2022).

[16] 597 U.S. ___ (2022).

[17] Texas AFT, “Texas Schools Say ‘No’ to Chaplain Counselors,” Texas AFT, March 8, 2024, https://www.texasaft.org/uncategorized/texas-schools-say-no-to-chaplain-counselors/.

[18] https://sde.ok.gov/sites/default/files/OSDE%20Instructional%20Guidelines%20July%202024.pdf

[19] Modan, Naaz, “Bills Allowing Chaplains in Public Schools Gain Steam,” K-12 Dive, August 26, 2024, https://www.k12dive.com/news/school-chaplain-bills-2023-2024-louisiana -texas-florida/725166/#:~:text=This%20year%2C%20Florida%20and%20Louisiana,to%20serve%20as%20school%20counselors.

[20] Ibid.

[21] Marsh v. Chambers, 463 U.S. 783 (1983).

[22] Ibid.

[23] 597 U.S. ___ (2022).

[24] 463 U.S. 783 (1983).