Freedom for Religious Expression Takes Giant Leap Forward

Mar 13, 2023

After major victories at the U.S. Supreme Court last year that led to the overturning of the so-called “Lemon Test,” the freedom for public expressions of faith has now been restored in America. 

The “Lemon Test” was binding authority for 51 years with 7,073 references in court opinions, administrative law decisions or other legal writings as cited on Thomas Reuters Westlaw since 1971. The legal test came out of the ruling in Lemon v. Kurtzman that has been used to determine if a law violates the First Amendment Establishment Clause. The High Court ruled in that case that a Rhode Island law that supplemented salaries of some parochial schoolteachers was unconstitutional. Since then, the “Lemon Test” has been used to censor religious speech, songs, Christmas cards, symbols, displays and even America’s National Motto — “In God We Trust.”

On May 2, 2022, Liberty Counsel’s 9-0 victory at the U.S. Supreme Court in Shurtleff v. City of Boston involved censorship of Christian viewpoints regarding flag raisings.  The High Court unanimously ruled that the city of Boston violated the Constitution by censoring a private flag in a public forum open to “all applicants” merely because the application referred to it as a “Christian flag.” The High Court unanimously rejected Boston’s use of the Lemon test to censor Christian viewpoints. 

In Kennedy v. Bremerton School District, Liberty Counsel filed argued in its amicus brief that since the Establishment Clause provides no justification for suppressing Coach Joe Kennedy’s private, religious speech to silently pray on the football field after games, the “Lemon Test” should be overruled. 

On June 27, 2022, the High Court ruled that the Bremerton School District violated both the First Amendment Free Speech and Free Exercise Clauses when it fired Coach Joe Kennedy for having prayer on the 50-yard line of the football field after the game. In addition, the High Court also finally buried the “Lemon Test, citing Liberty Counsel’s 9-0 decision in Shurtleff v. City of Boston involving the Christian flag. The Justices wrote: “In fact, just this Term the Court unanimously rejected a city’s attempt to censor religious speech based on Lemon and the endorsement test (See Shurtleff, 596 U. S.). 

Now because of the High Court overturning Lemon with these two case decisions, there are many areas where religious viewpoints have now been restored in America. Moreover, with the “Lemon Test” now overruled, the High Court noted that the Establishment Clause should be interpreted according to its historical intent and meaning. 

Some examples are:

  • Government shall not discriminate against religious viewpoints whether expressed in speech, symbols, displays, or performances.
  • Public schools must permit after school religious student clubs the same access they allow similar secular clubs.
  • Churches can rent public schools for worship services.
  • Since the "Lemon Test" is dead and the Establishment Clause must be interpreted according to its historical intent, all the cases that relied on the Lemon test are no longer good law, including cases that struck down prayer, Ten Commandments, Nativity displays or other religious symbols, religious performances, religious speech and expression, rental of public school facilities for church services when other secular use is permitted, student aid programs, and much more. 

Liberty Counsel’s Founder and Chairman Mat Staver said, “This 9-0 decision from the Supreme Court involving the Christian flag continues to have an impact across the nation. The clear message from the Supreme Court is that government must not discriminate based on viewpoint. The government cannot favor one viewpoint and censor another and cannot censor religious viewpoints under the guise of government speech. Any governments that are ignoring this ruling are setting themselves up for potential lawsuits.” 

For more information on the case, visit 

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