Formally, at least, there were no Establishment Clause cases on the Court's docket this past term. But in three cases involving Free Exercise and Free Speech claims, the Court effected a revolution in Establishment Clause jurisprudence. The facts of the cases are very different, but they all involve a common thread.
First, in Shurtleff v. Boston, the city refused to fly a flag with a cross to avoid a potential Establishment Clause violation. Second, in Carson v. Makin, Maine excluded religious schools from its tuition policy to avoid a potential Establishment Clause violation. Third, in Kennedy v. Bremerton School District, the coach was disciplined to avoid a potential Establishment Clause violation. In each case, the government restricted the rights of free exercise and/or free speech to prevent an entanglement between church and state. Call it the Lemon defense.
In each of the three cases, the Supreme Court emphatically rejected the Lemon defense. In Shurtleff, raising the flag would not have violated the Establishment Clause. In Carson, providing funding for the religious schools would not have violated the Establishment Clause. In Kennedy, allowing the coach to pray at the 50-yard line would not have violated the Establishment Clause. Therefore, fears of entanglement would not justify infringements of speech and exercise rights.
