NSU Undergraduate Law Journal
Abstract
This Article conducts a critical examination of Kennedy v. Bremerton’s ruling, which replaced the Lemon test with the historical practices and understandings test. Following a brief background on the Religion Clauses’ jurisprudence, the author contests that the historical practices and understandings test fails to adhere to long-held Supreme Court reasoning behind the creation of the Religion Clauses. This new test is likewise an insufficient framework for determining Establishment Clause violations.
The Article continues with an analysis on the conflicting fact patterns between the majority and dissenting opinions of Kennedy v. Bremerton. The author then discusses the precedential impact of Kennedy found within the historical practices and understandings test. They contend that Kennedy’s precedent will likely have one of two grave consequences: that its arbitrary nature will cause the very legislative and judicial confusion that the test sought to solve; or that the test will either implicitly or explicitly establish a judicial bias towards Christian practices.
The Article concludes with an assertion for a revisiting of Kennedy v. Bremerton. The historical practices and understandings test should either be made clearer by the Supreme Court or replaced with a different framework, be that the revival of the Lemon test or a new test altogether. The author ultimately finds that allowing an unaltered Kennedy to serve as binding precedent would surely cause one of the aforementioned consequences, both of which erode the Religion Clauses and the constitutional ideals of liberty and freedom of thought that this country was founded upon.
Recommended Citation
Allon, Ari
(2026)
"“Supreme Court, Tear Down This Wall!”: Kennedy v. Bremerton School District and the Erosion of the Barrier Between Church and State,"
NSU Undergraduate Law Journal: Vol. 2, Article 1.
Available at:
https://nsuworks.nova.edu/nulj/vol2/iss1/1