Kennedy v. Bremerton overruled the Lemon test. Sort of. Justice Gorsuch's majority opinion did not come out to formally overrule that case. Indeed, the question presented did not even concern the Establishment Clause. That issue only rose indirectly. Rather, the Court deemed Lemon as "abandoned." That much is clear. But the Court did more than inter that Burger-era precedent. The Court also seemed to undermine the coercion test. This plank of Establishment Clause jurisprudence stretches back to Engel v. Vitale (1962). That Warren-era precedent held that the government cannot subject students to indirect coercion with regard to religion. Even exposing students to prayer in the classroom, without requiring them to participate, could be sufficiently coercive to violate the Establishment Clause.
This line of precedent carried for the course of six decades. Lee v. Weisman (1992) held that clergy could not offer prayers at a high school graduation ceremony. In Lee, the Court recognized that "there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools." And "prayer exercises in public schools carry a particular risk of indirect coercion." The Court observed that "adolescents are often susceptible to peer pressure, especially in matters of social convention." Therefore, "the State may no more use social pressure to enforce orthodoxy than it may use direct means." Attendance at the graduation ceremony was optional, but "to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme." Due to that risk of "indirect coercion," the prayer at graduation violated the Establishment Clause. Eight years later, Santa Fe Independent School District v. Doe (2000) reached a similar result. The Court held that schools could not permit students to select and lead prayers before football games. The "delivery of a pregame prayer ha[d] the improper effect of coercing those present to participate in an act of religious worship."
Kennedy, however took a decidedly different approach to identifying "coercion" in Establishment Clause cases. In Kennedy, a high school football coach would quietly pray after games at the fifty-yard line. Some players from both teams would pray with him. The coach was disciplined, in part, because the school worried that the prayers violated the Establishment Clause. The Court disagreed. It held that the coach's prayers were within the bounds of the Establishment Clause. Here, there was "no evidence that students ha[d] been directly coerced to pray with Kennedy." And students who voluntarily choose to participate in the prayers were not necessarily coerced. It did not matter that some students were bothered or felt excluded by the prayers. The Court stated that "[o]ffense . . . does not equate to coercion." Justice Sotomayor dissented in Kennedy. She wrote that the majority "applie[d] a nearly toothless version of the coercion analysis" from Lee and Santa Fe. Sotomayor added that the Court "fail[ed] to acknowledge the unique pressures faced by students when participating in school-sponsored activities."
