In 1879, Congress declared George Washington’s February 22 birthday a federal holiday. On June 28, 1968, Congress passed the “Uniform Holiday Act,” which provided that annual observance of certain legal holidays would be celebrated on Monday. Consequently, “Washington’s birthday celebration” was moved to the third Monday in February. President Lincoln’s birthday is February 12. Today, many people celebrate “Presidents’ Day” in honor of all the presidents. At American Jewishprudence, we celebrate Presidents’ Day by discussing a trial strategy of Abe Lincoln—the lawyer.

What Happened?

Coach Joseph Kenney began working as a football coach for Bremerton County High School in 2008 after nearly two decades in the Marine Corps. In 2015, the school district warned him to stop praying in public after football games. In October 2015, Coach Kennedy prayed alone on the 50-yard line after a game. The school district fired Kennedy, claiming he violated the “Establishment Clause” of the Constitution.

The Establishment Clause

The Constitution was ratified on June 21, 1788, and became effective on March 4, 1789. The First Amendment to the Constitution was ratified on December 15, 1791.

The “Establishment Clause” is found in the First Amendment to the Constitution. It states plainly, “Congress shall make no law respecting an establishment of religion.” For those “textualists” out there, Coach Kennedy did not make a “law” by praying on the 50-yard line, nor did he “establish a religion.” So how could Coach Kennedy’s prayer ever be understood as “establishing” a religion?

The “Lemon” Test

In the late 1960s, Pennsylvania and Rhode Island passed laws that provided state funding for religious private schools. The funding in Pennsylvania was for secular books, materials and 15% of teachers’ salaries. Alton Lemon, who paid taxes in Pennsylvania and whose child attended Pennsylvania public schools, sued Pennsylvania on the theory that funding religious schools violated the Establishment Clause.

Purpose, Effect & Entanglement

In Lemon v. Kurtzman (1971) the Supreme Court held that a statute must satisfy three “prongs” to clear any Establishment Clause hurdle. (1) The law must have a secular purpose. (2) the law’s primary “effect” must be secular. It must not advance or inhibit religion, and (3) The law must not result in excessive government “entanglement” with religion.

Implementation of the Lemon Test created many questions: How does a judge determine those three factors? Does this seem like judicial dart throwing? Does this test invite subjectivity and confusion? Whose words determine a law’s purpose? What is the “primary effect” of a law? When does entanglement become “excessive?”

Later, the Supreme Court simplified the Lemon Test and held that a law violates the Establishment Clause if a “reasonable observer” could conclude the government endorses religion. (See County of Allegheny County v. ACLU, 1989).

Establishment v. Endorsement

Now take a step back. The First Amendment passed in 1791 stated that Congress violated the Constitution if it passed a law that “established religion.” The Supreme Court in 1971 ruled that Congress violated the Constitution if a “reasonable observer” could conclude the government “endorses religion.”

This “Lemon/Endorsement Test” granted the Supreme Court tremendous oversight over laws passed by Congress and the states that affected religion. Moreover, the test allows for incredible room for interpretation in evaluating its factors. For one, who is this “reasonable” observer? Does every justice have their own definition for “reasonable?” Second, how does one determine when a law “endorses religion?” Define “endorse?”

Justice Gorsuch: The Lemon/Endorsement Test Invited “Chaos”

Justice Neil Gorsuch attended a private Catholic elementary school in Denver and a private Catholic High school in Maryland. Justice Gorsuch was appointed by President Trump in 2017 to replace Justice Scalia.

In Kennedy v. Bremerton (2022), Justice Gorsuch wrote that the “Reasonable Observer Test” was too flexible and it “invited chaos” in the lower courts. Justice Gorsuch wrote for the Court’s majority, and ruled that: “This Court long ago abandoned Lemon and its endorsement test offshoot.” This 2022 ruling drastically changed the way courts analyze laws that affect religion.

Instead of “Lemon,” Justice Gorsuch proposed the “Reference to Historical Practices and Understandings” test. Example: If the U.S. government historically wrote “In God We Trust” on the penny, the U.S. government can continue doing so. If the government historically gave property tax breaks for shuls, yeshivas and other houses of worship, but not to Walmart, it can continue doing so without violating the Establishment Clause.

Justice Gorsuch applied the “historical practices and understandings” test to Coach Kennedy. He held that America has historically allowed people to pray on their own and has a history of tolerance. Accordingly, Coach Kennedy’s prayer did not violate the Constitution. End of story.

Enter Justice Sotomayor. Interestingly, Justice Sotomayor grew up in the Bronx and also attended a private Catholic elementary and high school. She was appointed in 2009 by President Obama to replace Justice Souter.

She dissented in Kennedy v. Bremerton, and maintained that laws should still be tested for Establishment Clause violations under the Lemon/Endorsement Test. She held that the reasonable observer of Coach Kennedy’s prayer would conclude the government endorsed religion.

Politics, Religion and The Supreme Court

The current situation at SCOTUS gives the appearance that (1) Obama-appointed judges are more likely to oppose governmental support of religion (like private school vouchers) and (2) Trump-appointed judges are more likely to protect religious liberties and allow government involvement in religion.

For example: In the Freedom of Religion-Covid case, Roman Catholic Diocese of Brooklyn v. Cuomo (2020), Justices Gorsuch, Thomas, Alito, Barret and Kavanaugh voted to allow Brooklyn houses of worship to remain open with the same Covid restrictions as Walmart. Justices Sotomayor, Breyer, Kagan and Roberts voted against. Religion wins, 5-4.

In the Establishment Clause case, Kennedy v. Bremerton (2022), Justices Gorsuch, Thomas, Alito, Barrett, Kavanaugh and Roberts held that Coach Kennedy’s prayer did not “establish religion” in violation of the Constitution. However, Justices Sotomayor, Breyer and Kagan proposed the “Lemon Test” dictated that a “reasonable observer” would conclude that Coach Kennedy’s prayer was government endorsed religion. Religion wins, 6-3. (Chief Justice Roberts, appointed by President Bush, was the sole swing vote. The usual suspects remained the same).

It will be interesting to see how Justice Brown-Jackson (appointed by President Biden in 2022 to replace Justice Breyer) will rule on Religious Freedom and Establishment Clause cases.

The Lemon Test Is Not “Abandoned” Yet!

In 2024, Louisiana passed a law mandating the display of the Ten Commandments in every public-school classroom in Louisiana. Federal District Judge John deGravelles (an Obama appointee) ruled that the law violated the Establishment Clause, as the law’s purpose was the promotion of religion. In other words, it failed the first prong of the Lemon Test.

Proving Motive. Among other evidence, Judge deGravelles used “judicial notice” to include a statement made by Governor Landry. Judge deGravelles concluded from that statement that the law was religiously motivated, thereby failing the Lemon Test. Since the Judge used the “Lemon Test,” the motivation of lawmakers played a central role in determining the law’s constitutionality. The Judge used “judicial notice” to establish those statements as fact.

Abraham Lincoln, the Almanac Trial and Judicial Notice

“Judicial notice is a method used by a court when it declares a fact presented as evidence as true without a formal presentation of evidence.” Law.Cornell.Edu/Wex. For example: The Court could take judicial notice that George Washington’s birthday was celebrated on a Monday in February. In civil cases, judicial notice is considered conclusive.

In 1858, Abraham Lincoln successfully defended his client, Duff Armstrong, who had been accused of murder during a drunken brawl the night of August 29, 1857. The prosecution’s key witness testified that he had clearly seen the murder in the bright light from the full moon at 11p.m., the time of the attack. At trial, Abraham Lincoln produced an Almanac which stated that on the night of the murder at 11p.m., the moon had already begun to set, thereby calling the witness’s testimony and character into question.

The trial judge took “judicial notice” of the Almanac’s record that on August 29, 1857 (the 9 or 10 of Elul) the moon did not shine brightly. Absent judicial notice, the writer of the Almanac would have had to testify to that fact in court. The jury acquitted Duffy, and Abraham Lincoln later became president. Happy President’s Day!

Eliyahu Asher Prero, Esq. is a certified mohel and practicing lawyer. Rabbi Prero graduated magna cum laude from Seton Hall Law in 2023 with a concentration in intellectual property law, and served as a clerk for the Honorable Thomas A. Sarlo, in the Superior Court of New Jersey, Civil Division–Bergen County. He is currently an associate at the law firm Schenck, Price, Smith & King, where he focuses on constitutional law, civil litigation, and medical malpractice defense.