We are in the midst of Red Flag June. On three consecutive session days, the Court has reversed old doctrine--and in the process, placed red precedential flags on many decisions. On Thursday, Bruen red-flagged dozens circuit decisions that followed the two-step approach for Second Amendment cases. On Friday, Dobbs red-flagged Roe, Casey, and countless other abortion cases. And today, Monday, Kennedy v. Beremerton School District red-flagged Lemon v. Kurtzman, and decades of precedents that relied on the infamous test.
Justice Gorsuch's majority opinion does not overrule Lemon in so many words, but the import of the ruling is clear--follow Town of Greece, not Lemon.
What the District and the Ninth Circuit overlooked, however, is that the "shortcomings" associated with this "ambitiou[s]," abstract, and ahistorical approach to the Establishment Clause became so "apparent" that this Court long ago abandoned Lemon and its endorsement test offshoot. American Legion; see also Town of Greece v. Galloway (2014) . . .
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.'" Town of Greece.
