Establishment Clause

The Establishment Clause of the First Amendment provides that Congress shall make no law respecting an establishment of religion. Applied to the states through the Fourteenth Amendment, the clause prohibits the government from establishing an official religion, preferring one religion over another, or preferring religion over non-religion (though this last principle is contested).

For decades, the Lemon test from Lemon v. Kurtzman (1971) served as the primary framework. Under Lemon, a law was constitutional if it had a secular purpose, its primary effect neither advanced nor inhibited religion, and it did not create excessive government entanglement with religion. However, the Court increasingly criticized and sidelined the Lemon test over the years.

In Kennedy v. Bremerton School District (2022), the Court formally abandoned the Lemon test and the endorsement test in favor of an approach rooted in historical practices and understandings. Under this framework, the constitutionality of a government action involving religion is assessed by reference to historical practices and understandings at the time of the founding and throughout American history. The Court examines whether the challenged practice has a longstanding historical pedigree. This shift means that government invocations of religion that would have been acceptable at the founding, such as legislative prayer (Marsh v. Chambers, 1983) or religious displays with historical significance (American Legion v. American Humanist Association, 2019), are more likely to survive scrutiny. However, direct government coercion in religious matters remains prohibited.