In the words of the late Antonin Scalia, the Supreme Court’s 1971 decision in the case of Lemon v. Kurtzman, which struck down a Rhode Island law that gave government support to religious schools, is akin to “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, . . . frightening the little children and school attorneys.” But the court appears to have overturned the ruling completely in its recent decision in favor of Joseph Kennedy, a high-school football coach who was prohibited from praying silently before football games. Howard Slugh explains:
The Supreme Court found that the school violated the coach’s right to exercise his religion freely. The court explained that “respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head.” The school’s attempt to “punish an individual for engaging in a brief, quiet, personal religious observance” was unconstitutional.
This holding is of the utmost importance to religious minorities such as Jews and Muslims who are frequently called upon [by their beliefs] to engage in public acts of religious expression. Attempts by those in the media to paint this decision as somehow harmful to religious minorities are misguided at best and deliberately misleading at worst. Today, no Jewish public-school teacher has to fear that his public school might fire him for saying a blessing before he takes a drink of water. No Jewish or Muslim public-school teachers have to fear that they will be fired for wearing religious garb.
In Lemon v. Kurtzman, the Supreme Court [had] created a highly subjective test that “called for an examination of a law’s purposes, effects, and potential for entanglement with religion” in order to determine whether it created an unconstitutional “establishment” of religion. If you find that difficult to understand, you are not alone. No one has ever been able to figure out what the court actually meant.
One thing that is clear is that Lemon was bad for religious Americans. Before Lemon, the Supreme Court had never once found that a person’s public display of religion violated the constitution. As Justice Gorsuch noted, “after Lemon, cases challenging public displays under the [First Amendment’s] Establishment Clause came fast and furious.”