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Publication Date

5-2023

Document Type

Comment

Abstract

The Supreme Court of the United States has officially overturned Lemon v. Kurtzman. The controversial and heavily criticized Lemon opinion sets forth the primary test courts used for over fifty years in analyzing claims under the Establishment Clause. The official overruling of Lemon signals the Supreme Court’s embrace of a more accommodating approach toward religion in the public sphere. This Comment predicts how, in Lemon’s absence, the Supreme Court will likely reassess precedent in the context of public school prayer and become more accommodating of religion.

In Part II, this Comment addresses the three approaches to interpreting the Establishment Clause: the strict separation, neutrality, and accommodation approaches. This Comment describes how these three approaches often dictate the result in Establishment Clause disputes, as caselaw has made apparent over time. Next, Part III explains the Lemon test and how the Supreme Court intended Lemon to provide consistency in its Establishment Clause jurisprudence. But the effort ultimately failed, and Part IV of this Comment expands on how the test soured over time, examining how the Supreme Court shifted away from Lemon and toward the history and tradition test. Then, Part V of this Comment discusses how the Court will apply the history and tradition test, as evinced by cases leading up to the demise of Lemon. Specifically, Part V will focus on how cases before, during, and after Lemon’s reign signal that the Supreme Court will become more accommodating of religion in the context of public school prayer. Finally, Part V concludes by examining how a claim may arise to provide the Supreme Court an opportunity to reexamine Establishment Clause precedent in the public school context.

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