The Lemon Test is dead. Religious freedom is alive.
It’s a new day for religious freedom in America.
You won’t hear about this on the news. In recent years, the Supreme Court of the United States has become the catalyst for a positive sea change in just a 14-month period, which reversed decades of detrimental legal precedent and cleared the way for positive, multigenerational impact. After a string of losses through Supreme Court decisions in the 1970s that sought to sanitize the public square of our Judeo-Christian heritage, the decades-long fight swiftly shifted.
In 1971, in Lemon v. Kurtzman, the High Court ruled that a Rhode Island law that supplemented salaries of some parochial schoolteachers was unconstitutional. A multipronged form of judicial review called the “Lemon Test” was derived from the ruling that became the binding authority for 51 years with 7,073 references in court opinions, administrative law decisions, or other legal writings, as cited on Thomas Reuters Westlaw.
Freedom of religion became freedom from religion under the “Lemon Test.” The erroneous purpose of the test was to ensure there was no unduly entanglement of government with religion.
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For almost five decades, activist courts tried to remove the Ten Commandments, crosses, nativity scenes, and other religious symbols and displays from government property. They’ve tried to muzzle Christians from praying silently or aloud at sporting events. They have tried to stifle believers from sharing their testimony or expressing their religious viewpoints in public. But never again! No longer can courts divorce America from religious freedom or the First Amendment from its original and historical purpose.
On May 2, 2022, Liberty Counsel’s 9-0 victory at the U.S. Supreme Court in Shurtleff v. City of Boston involved censorship of Christian viewpoints regarding flag raisings. The High Court unanimously ruled that the City of Boston violated the U.S. Constitution by censoring a private flag in a public forum open to “all applicants” merely because the application referred to it as a “Christian flag.” The High Court unanimously rejected Boston’s use of the “Lemon Test” to censor Christian viewpoints.
In Kennedy v. Bremerton School District, Liberty Counsel argued in its amicus brief that since the Establishment Clause provides no justification for suppressing Coach Joe Kennedy’s private religious speech to silently pray on the football field after games, the “Lemon Test” should be overruled. Then on June 27, 2022, the High Court ruled 6-3 in favor of the high school football coach and also finally buried the court-made “Lemon Test,” citing Liberty Counsel’s 9-0 decision handed down in Shurtleff v. City of Boston involving the Christian flag.
These landmark Supreme Court victories dealt the death blow to the Lemon Test and removed the red tape that prevented life, liberty, and America’s godly heritage from flourishing throughout the public square. Since Lemon has finally been buried, students across the nation can read, memorize, and hopefully follow the Ten Commandments. In addition, religious symbols such as crosses can permanently remain on government property. No longer can Lemon be used to censor religious expression. Lemon is dead. Religious freedom is alive. It’s a new day for religious freedom! Learn more at LC.org/Lemon.
Another remarkable turn of events in the battle for life, liberty, and the pursuit of happiness came with the stupendous fall of Roe v. Wade. The reign of Roe v. Wade ended Friday, June 24, 2022, with the U.S. Supreme Court decision in the case of Dobbs v. Jackson Women’s Health Organization. Liberty Counsel’s amicus brief overviewing the eugenic and racist history and purpose of abortion was cited by the Court in the opinion. As expected, however, activity in the states has ramped up as abortion clinics and activist groups began contesting state abortion bans. Our work defending life has exponentially increased, and we will never stop.
In 2023, in Groff v. DeJoy, the Supreme Court unanimously struck down the case involving Christian mail carrier Gerald Groff, who sued the United States Postal Service after his request to be off work on Sundays was denied. This case is important in ensuring employees can obtain religious accommodations in their workplace, and it overturned the 1977 Trans World Airlines, Inc. v. Hardison decision that restricted employees’ religious accommodations. Now in light of this monumental win, most, if not all, employment discrimination cases must be reconsidered.
Liberty Counsel is setting its sights on making the most of these recent court wins and securing others. The case involving Kim Davis may be a vehicle to overturn Obergefell v. Hodges. This 2015 case is working its way back to the Supreme Court where one of the arguments will be that Obergefell was wrongly decided.
When news of the Court’s Obergefell opinion hit in 2015, Davis was a county clerk from Kentucky who refused to issue a marriage license to a same-sex couple because of her deeply held Christian belief that marriage is between a man and a woman. After Davis requested a religious accommodation, she refused to issue any marriage licenses and would simply refer individuals to another clerk. Though she eventually received a religious accommodation from the now-former governor, Matt Bevin, she is still under fire for standing her ground and upholding her religious beliefs.
Liberty Counsel is proud to represent Davis in her almost eight-year legal battle, and we believe her case has the potential to topple Obergefell. Justices Clarence Thomas and Samuel Alito have already invited future challenges to the 2015 Obergefell marriage case since the Court’s decision was not constitutional. Now, because of the bold faith and endurance of our client, Kim Davis, we could see this disastrous opinion overturned in the annals of American law and history.
These landmark victories are monumental in restoring religious freedom to a first-tier right, protecting life, and reversing the damage done to our Judeo-Christian heritage. These wins have provided a surge of strength and serve as a reminder that it’s never too late to change the course of history. Former British Prime Minister Winston Churchill showed resolve in his famous “Never give in” quote given at the beginning of World War II.
Churchill’s inspiring words ring true today as people of faith are engaged in a global war of worldviews, a culture war, which requires firm resolve and tireless faith. Even with countless similar cases pending at every level, it’s a new day for religious freedom and we have tremendous hope that our fight for the soul of America is not in vain. We cannot and will not quit fighting. Never give up. Never!
Mat Staver is founder and chairman of Liberty Counsel, chairman of Liberty Counsel Action, Faith and Liberty, Covenant Journey and Covenant Journey Academy. He has more than 350 legal opinions, authored eight scholarly law review publications, and many articles and books.
Mat has argued in many federal and state courts, including three landmark cases before the U.S. Supreme Court, which includes a 9-0 precedent-setting victory in Shurtleff v. City of Boston. This case unanimously rejected the 1971 Supreme Court opinion of Lemon v. Kurtzman that did incredible damage to the First Amendment for 51-years.
Mat hosts two daily radio programs, "Freedom’s Call and Faith and Freedom," as well as a weekly television program, "Freedom Alive."
