What Happened?
The constitutional rules that limit government support for religion are unsettled, making it hard to predict how courts will rule on federal laws that touch on religion. The Congressional Research Service published a report on those limits, titled "Establishment Clause Limits on Government Support for Religion."
The uncertainty stems from the Supreme Court's 2022 ruling in *Kennedy v. Bremerton School District*, which abandoned the decades-old *Lemon* test for judging whether government action crosses the line into supporting religion. The Court replaced it with a direction to look at "historical practices and understandings," but did not formally overrule earlier cases that had applied the old test.
Why Does it Matter to Me?
With lower courts split over which legal test to apply, it is hard to predict how judges will review existing federal laws or new ones that arguably support religion.
The Department of Justice's Office of Legal Counsel (OLC) issued an opinion this summer taking the position that certain federal funding restrictions on religious use violate the Constitution's Free Exercise Clause, and that the government may pay religious institutions to deliver civil services on neutral terms without establishing religion.
The Seventh Circuit, in *Childs v. Webster*, treated *Nyquist*-line precedent against direct funding of religious activities as binding "unless and until expressly overruled."
Both Sides, Now
Supporters of broader government support for religion argue the old *Lemon* test was too restrictive. The OLC opinion reflects that view, concluding that paying religious institutions to deliver services on neutral terms does not amount to establishing religion.
Opponents argue the Establishment Clause should continue to meaningfully limit government-backed religious activity. A federal judge permanently blocked Arkansas's requirement that public schools display the Ten Commandments in classrooms this past March, ruling that legally mandated religious displays can violate constitutional limits, according to KFYR/iHeart.
Lower courts have split directly on the question: the Fifth Circuit upheld Texas's school Ten Commandments display law in *Nathan v. Alamo Heights Independent School District*, while the Arkansas district court in *Stinson v. Fayetteville School District No. 1* reached the opposite conclusion.
What Happens Next?
A petition asking the Supreme Court to take up *Nathan* remained pending as of mid-October, with no action from the Court after at least 50 days. A separate appeal in *Stinson* was docketed in the Eighth Circuit earlier this year.
The OLC opinion's legal footing turns on the same unsettled questions the courts are still working through. The Supreme Court holds the power to resolve the split by taking up *Nathan* or a similar case, but it has not yet agreed to do so. Will the Court step in before more conflicting rulings pile up across the country?
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