Changing Tests and Religious Displays
Since then, O’Connor’s endorsement test and the
Lemon test came into play in situations where religious and state actions potentially conflicted. But several newer court decisions had greatly diminished the
Lemon and endorsement tests.
In
Town of Greece v. Galloway in 2014, Justice Anthony Kennedy stated that the “Establishment Clause must be interpreted ‘by reference to historical practices and understandings,’” referring to his own concurring opinion in the
County of Allegheny decision.
A 2019 Supreme Court decision,
American Legion v. American Humanist Association, addressed the same question about the presence of a large cross on public property that was once privately owned. The Court’s majority did not use the
Lemon test and again looked at “historical practices and understandings” to settle the First Amendment question.
In
Woodring v. Jackson County, Indiana, in 2021, the Seventh Circuit Court of Appeals ruled that a nativity scene on public property that also included secular objects was permitted because it fit “with a long national tradition of using the nativity scene in broader holiday displays to depict the historical origins’ of Christmas—a ‘traditional event’ long recognized as a National Holiday.”
Last June, the Court’s majority left little doubt where it stood on previous religion tests. “This Court long ago abandoned
Lemon and its endorsement test offshoot,” wrote Justice Neil Gorsuch in the 7-2 majority opinion in
Kennedy v. Bremerton School District. “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.’” Justice O’Connor’s test from the 1980s was formally abandoned.
Since
Kennedy v. Bremerton, any legal challenge to religious symbolism on public property will need to be interpreted in a new light. In the wake of last year’s Supreme Court decision, there has been a general lack of nativity scene lawsuits during 2023.
