108 Iowa L. Rev. 2097 (2023)
The Supreme Court’s recent decision in Kennedy v. Bremerton School District marks an important point in the Court’s doctrine regarding the First Amendment’s Religion Clauses. Kennedy’s most noteworthy contribution to the law may have been its clear declaration that the Lemon test and its endorsement offshoots are no longer the governing legal standard. Instead, the Court will interpret the Establishment Clause “by ‘reference to historical practices and understandings.’” But what, precisely, does this historical approach entail? And aside from that test, what does Kennedy have to say about doctrinal developments under the Free Exercise Clause?
This Essay makes three primary observations about Kennedy. First, the Court’s refined Establishment Clause test is both more nuanced and more straightforward than many scholars suggest. The Court indicated that while coercion is one important historical hallmark of an established religion, it is not the only relevant hallmark. Thus, coercion has not become the new sine qua non for all future Establishment Clause violations. This Essay suggests that, in the future, the Court will likely look to whether relevant government action falls within a range of at least six distinct historical hallmarks, and unique doctrinal tests will apply in each of these distinct historically significant contexts. Second, Kennedy clarifies the relationship between the Establishment Clause and the Free Exercise Clause, rejecting the notion that these clauses are in tension and instead embracing a vision of them as complementary and likely working together to decrease unnecessary government interference with religion. Third, the Court provided additional doctrinal clarifications protecting religious rights under the Free Exercise Clause, including categorically prohibiting official hostility toward religion, expanding an understanding of what it means for a law to fail either neutrality or general applicability, and requiring government to articulate its interest under strict scrutiny contemporaneously, rather than as a post hoc litigation tactic. Thus, this Essay suggests that, in many ways, the impact Kennedy will have on the law has likely been overstated (particularly when combined with some of the factual disputes about the case). On the other hand, some of the potential important implications of Kennedy have yet to be appreciated.