The first two provisions of the U.S. Constitution’s First Amendment, known as the Religion Clauses, state that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Together, the Establishment and Free Exercise Clauses require the government to be neutral toward religion, neither providing impermissible support nor demonstrating impermissible hostility. The Supreme Court acknowledged in Walz v. Tax Commission, 397 U.S. 664, 668 (1970), that the Religion Clauses “are not the most precisely drawn portions of the Constitution.” Over the years, the Supreme Court has employed a variety of tests to analyze whether government support for religion violates the Establishment Clause. Among these methods of analysis, the Court employed the three-part Lemon test for several decades. The Lemon test asked courts to ensure that the challenged government action has a secular purpose, that its primary effect neither advances nor inhibits religion, and that it does not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971), abrogation recognized by Groff v. DeJoy, 600 U.S. 447 (2023). In 2022, however, the Supreme Court announced that it had “abandoned Lemon.” Kennedy v. Bremerton School District, 597 U.S. 507, 534 (2022). Instead, the Court instructed lower courts to interpret the Establishment Clause by “reference to historical practices and understandings.” Id. at 535. While Kennedy announced this new “historical practices and understandings test,” it did not overrule prior decisions that applied the Lemon test or other types of analyses. The Kennedy decision did not instruct courts on how to conduct an analysis by reference to historical practices and understandings, but older Supreme Court precedent contains some guidance. For example, the Court looked to Founding-era understandings and practices to invalidate state laws requiring public officials to declare a belief in the existence of God, as well as a state law requiring a specified prayer to be recited at the beginning of a school day. Torcaso v. Watkins, 367 U.S. 488, 496 (1961); Engel v. Vitale, 370 U.S. 421, 424 (1962). The Court also looked to evidence of long-standing historical practices to uphold prayers at the beginning of legislative sessions. Town of Greece v. Galloway, 572 U.S. 565, 569–70 (2014). In Kennedy itself, however, the Court did not look to specific historical practices similar to the challenged government action. Instead, it referenced its own prior precedent evaluating whether similar practices were coercive. Kennedy thus suggests some prior Supreme Court precedent that did not look to historical practices or understandings may remain good law. After Kennedy, lower courts have taken different approaches to evaluating Establishment Clause claims. Many courts have attempted to apply Kennedy’s instruction to look to historical practices and understandings. Some have sought evidence of practices from the Founding era or later that are in line with the challenged government action; others have looked for evidence of certain historical hallmarks of a religious establishment. At the same time, some lower courts have continued to apply controlling Supreme Court precedent that did not employ a historical analysis. As a general principle, lower courts are still bound to follow the outcomes of any Supreme Court precedent that has direct application. E.g., Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). Lower courts have reached different conclusions, however, about whether specific Supreme Court cases remain controlling after Kennedy. For instance, courts have disagreed about the continuing validity of Supreme Court precedent evaluating laws requiring public display of the Ten Commandments, with ongoing appeals making their way to the Supreme Court. Compare Nathan v. Alamo Heights Indep. Sch. Dist., 173 F.4th 576, 590–91 (5th Cir. 2026), petition for cert. filed, No. 26-257 (U.S. Aug. 27, 2026), with Stinson v. Fayetteville Sch. Dist. No. 1, 824 F. Supp. 3d 792, 807 (W.D. Ark. 2026), appeal docketed, No. 26-1722 (8th Cir. Apr. 17, 2026). This unsettled state of jurisprudence can make it difficult to assess how courts might review existing federal laws or any new laws that arguably support religion. Courts might look to historical practices and understandings, but there are open questions regarding how to conduct this inquiry. Further, courts may still have to assess whether existing Supreme Court precedent has direct application to the facts before them, requiring them to rule a certain way regardless of historical practices or understandings.
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