The Supreme Court overturned the Lemon test in Kennedy v. Bremerton School District, 597 U.S. 507 (2022), ending a three-part framework that had governed Establishment Clause cases since 1971. In its place, the Court adopted a standard rooted in “historical practices and understandings,” directing judges to ask whether a challenged government action fits the traditions the Founders would have recognized rather than working through a checklist about purpose, effect, and entanglement. That shift changes how courts handle prayer in public schools, religious monuments on government property, and public funding that reaches religious institutions.
What the Lemon Test Required
The test came from Lemon v. Kurtzman, 403 U.S. 602 (1971). A government action had to clear three hurdles to survive an Establishment Clause challenge. It needed a secular purpose. Its primary effect could not advance or inhibit religion. And it could not create excessive entanglement between government and religion. Failing any single prong made the law unconstitutional.
Courts spent five decades applying that framework to school curricula, holiday displays, legislative prayer, aid to religious schools, and much else. Results were often inconsistent. A nativity scene might survive in one town and fall in another depending on what stood next to it.
How Lemon Was Weakened Before Being Overruled
Criticism built for years. Justice Breyer noted in 2005 that Lemon could not explain why the Court tolerated legislative prayer, references to God on currency, or Thanksgiving as a public holiday. Lower court judges openly struggled with the test.
The clearest signal came in American Legion v. American Humanist Association, 588 U.S. 29 (2019), which involved a 40-foot World War I memorial shaped like a Latin cross on public land in Maryland. Justice Alito’s opinion acknowledged the Court had “either expressly declined to apply the test or has simply ignored it” in many cases. The opinion called Lemon’s attempt to build a “grand unified theory of the Establishment Clause” a failure and directed courts to take “a more modest approach that focuses on the particular issue at hand and looks to history for guidance.” Longstanding religious monuments got a presumption of constitutionality. American Legion stopped short of formally overruling Lemon. Kennedy finished the job three years later.
Kennedy v. Bremerton and the Formal Overruling
Joseph Kennedy was a high school football coach in Bremerton, Washington, who knelt at midfield after games to pray. The school district suspended him out of concern that a coach praying in view of students could look like government endorsement of religion. He sued on free speech and free exercise grounds.
The Court ruled 6–3 in his favor. The majority found that his postgame prayers were personal religious expression rather than government speech. When he prayed after the three games that led to his suspension, he was not instructing players or performing any duty the school paid him to do.
The doctrinal move came when the majority addressed Lemon directly. Justice Gorsuch wrote that “this Court long ago abandoned Lemon and its endorsement test offshoot,” and that in their place “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.'”
Justice Sotomayor’s dissent pushed back on both the facts and the law. She wrote that the majority “misconstrues the facts,” pointing to Kennedy’s history of leading demonstrative prayers at midfield that drew students and spectators to join him. On the law, she said the decision “overrules Lemon v. Kurtzman . . . and calls into question decades of subsequent precedents,” and argued that Lemon had properly reflected “the cumulative criteria developed by the Court over many years.”
The New Standard: Historical Practices and Understandings
The replacement framework asks a different question. Instead of testing for secular purpose and impermissible effects, judges must determine whether a challenged practice fits within the historical traditions surrounding the First Amendment. The core inquiry is whether the founding generation would have understood a particular government action as an establishment of religion.
The approach did not originate in Kennedy. It appeared in Town of Greece v. Galloway, 572 U.S. 565 (2014), where the Court upheld a town’s practice of opening board meetings with prayer. The majority traced legislative prayer to the First Congress, which voted to appoint and pay chaplains shortly after approving the language of the First Amendment. Because the practice had “withstood the critical scrutiny of time and political change,” it passed constitutional muster, and the content did not need to be nonsectarian.
Kennedy elevated this historical approach from one tool to the governing framework. Courts now look for what Justice Gorsuch described as the “historical hallmarks” of an established religion: government control over doctrine, mandatory attendance at services, compulsory financial support through tithes, restrictions on dissenting worship, and religious tests for holding office. A modern practice that does not resemble those founding-era abuses is far more likely to survive.
Coercion still matters. The majority acknowledged that “coercive religious observance was among the foremost hallmarks of religious establishments the framers sought to prohibit.” Government cannot force anyone to participate in religious activity. But coercion is now measured against what the founding generation would have recognized as compulsion.
What Changed for Religious Displays and Monuments
Under Lemon, a religious display on government property triggered the three-part analysis that often led to removal. Under the new standard, existing displays have a much easier path. American Legion already established a presumption of constitutionality for longstanding monuments, and Kennedy reinforced that presumption by grounding all Establishment Clause analysis in historical tradition. No evidence from the founding era suggests that passive government displays of religious content were understood as an establishment. Concerns about religious symbols at the founding involved government suppression of dissenting churches, not government display of religious content.
New displays face a slightly different analysis. Courts still evaluate whether the display fits within a broader historical tradition, and the presumption that applies to decades-old memorials does not automatically extend to something built yesterday.
What Changed for Public School Prayer and Teacher Expression
Kennedy’s most immediate practical effect is on religious expression by public school employees. Many districts had assumed that any visible religious conduct by a teacher or coach was constitutionally suspect. The majority rejected that view, noting that a school could not “fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria.”
The distinction is between personal religious expression and school-directed religious activity. Kennedy praying on his own time, in a manner that did not involve directing students, was private speech the school could not punish. The decision does not revive school-sponsored prayer. The Court described its ruling as concerning “an individual engaging in a personal religious observance,” not prayer organized or led by the school. A school broadcasting a prayer over the loudspeaker before a football game or asking students to bow their heads in class would still raise serious problems, because that kind of compelled participation is what the historical standard treats as coercion.
Where exactly the line sits is something lower courts are still working out. The gap between a coach’s personal prayer that students voluntarily join and a coach effectively pressuring students to join remains contested.
Impact on Public Funding of Religious Schools
Lemon’s entanglement prong gave states strong reason to keep religious schools out of funding programs. That barrier has largely disappeared.
In Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020), the Court struck down Montana’s exclusion of religious schools from a tax-credit scholarship program. Excluding schools “solely because of religious status” triggered strict scrutiny, and Montana’s interest in a stricter separation than the federal Constitution requires did not survive.
Two years later, Carson v. Makin, 596 U.S. 767 (2022), went further. Maine ran a tuition assistance program paying for students in small towns to attend the private school of their choice, but excluded religious schools. The Court held that “once a State decides to” subsidize private education, “it cannot disqualify some private schools solely because they are religious.”
Together, these decisions mean that states running voucher, scholarship, or tuition assistance programs generally cannot exclude religious schools. The Lemon-era reasoning that public money flowing to religious schools created unconstitutional entanglement has flipped: excluding religious schools from generally available benefits is now itself a constitutional problem.
What Happened to the Endorsement and Coercion Tests
The Kennedy majority explicitly discarded the endorsement test as well, calling it an “offshoot” of Lemon that had been abandoned alongside it. The endorsement test, associated with Justice O’Connor’s concurrence in Lynch v. Donnelly and later applied in County of Allegheny v. ACLU, 492 U.S. 573 (1989), asked whether a reasonable observer would view a government action as endorsing religion. That question is no longer the legal standard.
The coercion test from Lee v. Weisman, 505 U.S. 577 (1992), was not discarded but was absorbed. Lee held that government cannot pressure individuals to participate in religious activities. Kennedy treats coercion as one factor within the broader historical inquiry rather than a freestanding test, and what counts as coercion is measured against founding-era understandings.
Lee had defined coercion broadly enough to include the subtle pressure a graduating student might feel to stand during a rabbi’s invocation at a public school ceremony. Whether that expansive understanding survives under the historical framework is an open question lower courts have not fully resolved.
How Lower Courts Are Applying the Standard
Kennedy told judges to use historical practices and understandings but did not provide a detailed roadmap. The cases that followed show genuine disagreement about how to conduct the analysis.
In a 2025 case involving a Louisiana law requiring public schools to display the Ten Commandments, the Fifth Circuit rejected the argument that the “historical hallmarks” of established religion were the only things the Establishment Clause prohibited. The court asked instead whether posting the Commandments in classrooms “fits within, or is consistent with, a broader tradition of using the Ten Commandments in public education.”
Other courts have taken the historical inquiry in different directions. The Fifth Circuit upheld a judge who opened daily court sessions with prayer, finding that scattered evidence of prayer before federal court-term openings provided enough historical support even though no evidence showed prayer before daily sessions specifically. A Florida district court went the other way, ruling that a city violated the Establishment Clause by organizing a prayer vigil because the city’s hands-on involvement was “dissimilar” to historical examples like legislative prayer or national days of prayer.
The Third Circuit evaluated classroom videos about Islam and found no violation because they were not coercive, did not proselytize, and did not show favoritism. The Ninth Circuit upheld a religious exemption from a federal nondiscrimination law based on the founding-era history of tax exemptions for religious institutions. Each court is building its own version of what the historical standard demands.
Criticism of the New Framework
The historical practices standard has drawn criticism from across the ideological spectrum. The most common objection is that the approach is more subjective than it appears. Deciding which traditions are relevant, how broadly to define them, and what counts as a sufficient historical parallel all involve significant judicial discretion. A judge who frames the relevant tradition narrowly, such as “prayer before daily court sessions,” may reach the opposite conclusion from one who frames it broadly, as “prayer in connection with government proceedings.”
Scholars have said this flexibility lets judges defer to historical practice when it supports outcomes they favor and depart from it when it does not. The Kennedy opinion itself has been criticized for abandoning Lemon “without developing a different test, beyond making a now-fashionable bow toward the ‘original meaning and history’ of constitutional language.” Justice Sotomayor’s dissent argued that the purposes and effects of government action should still matter.
Supporters counter that Lemon produced exactly the kind of inconsistency and confusion the historical approach is meant to cure, pointing to decades of contradictory lower court decisions on holiday displays, moments of silence, and school ceremonies. Whether the historical practices standard proves more predictable is something only the next generation of cases can answer.