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We finally can be on offense...

"Everywhere that crosses went down, they come back up. Everywhere that Ten Commandments were in closets, they come back out. Everywhere that prayer was taken out, it goes back in. It is now about the people taking back their country. We have already (legally) won. It is just every person needs to go into their own community and say, why don’t we have prayer at the school board meetings? Why won’t we have a nativity scene?" 

- Kelly Shackelford, First Liberty Institute



June 28, 1971

The question before the Court was whether Pennsylvania and Rhode Island statutes providing state aid to church-related elementary and secondary schools was constitutional under the Establishment and Free Exercise Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment.

The Court set out a 3 prong test which became known as the Lemon test. If any one of the three prongs is violated, the statute under review must be ruled unconstitutional.

  • A statute must have a secular legislative purpose;

  • Its principal or primary effect must be one that neither advances nor inhibits religion; or

  • The statute cannot promote "an excessive government entanglement with religion"

The U.S. Supreme Court found that both programs violated the 3rd prong of the test by excessively entangling the state with the operations of the schools, deeming that the programs required constant monitoring by the government. That would excessively entangle the state with religious education.

Chief Justice Burger delivered the Court's opinion that both (Pennsylvania and Rhode Island) statutes are unconstitutional.

Lemon precedent from 1971 was cited in over 7,000 wrongly decided cases.

In 2022, the Court in Kennedy v. Bremerton School District replaced the Lemon test. The new standard under Kennedy and decisions thereafter are to be made by "reference to historical practices and understandings"



Kennedy v. Bremerton 

 June 27, 2022

Joseph Kennedy lost his job as a high school football coach in the Bremerton School District after he knelt at midfield after games to offer a quiet personal prayer. Mr. Kennedy sued in federal court The District Court found that the "sole reason"... to suspend Mr. Kennedy was its perceived "risk of constitutional liability" under the (First Amendment's) Establishment Clause for his "religious conduct"... (meaning Kennedy was violating the Establishment Clause)... the Ninth Circuit affirmed.

(U.S. Supreme Court) Held: The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.

In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by *reference to historical practices and understandings.'(instead of the Lemon test)... An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some "exception" within the "Court's Establishment Clause jurisprudence".

There is no conflict between the constitutional commands of the First Amendment in this case. There is only the "mere shadow" of a conflict, a false choice premised on a misconstruction of the Establishment Clause. A government entity's concerns about phantom constitutional violations do not justify actual violations of an individual's First Amendment rights Respect for religious expressions is indispensable to life in a free and diverse Republic. Here, a government entity sought to punish an individual for engaging in a personal religious observance... The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his religious exercise and free speech claims.



November 18th, 2002

The question ... is whether the Chief Justice ... violated the Establishment Clause (of the First Amendment) when he placed a ... monument... in the Alabama State

Judicial Building ...

To answer this question, the Supreme Court used Lemon v. Kurtzman: ... (the) Court determined the monument fails this test, frequently called the Lemon test, in two ways:

(1) fundamental purpose in displaying the monument was non-secular; and

(2) the monument's primary effect advances religion. ...

...To satisfy the second prong of the Lemon test, the challenged practice must have a "principal or primary effect ... that neither advances nor inhibits religion."

»the court finds that the monument is not constitutional under the Lemon test.

.. (the Court noted even though) the Lemon test has been criticized by a number of Supreme Court Justices, Lemon has not been overruled...

The Eleventh Circuit, too, has continued to apply the Lemon test despite this criticism…the court is strictly bound by Supreme Court precedent; only that Court has the ability to overturn its previous decisions.

If the Supreme Court errs, no other court may correct it...(the Court did correct itself in Kennedy v. Bremerton School District (2022), which replaced the Lemon test).


It is declared that ... placement of his Ten Commandments monument in the Alabama State Judicial Building violated the Establishmert Clause of the First Amendment to the United States Constitution and given thirty days ... to remove the monument.

(The Court later ordered the monument removed.)

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