The Establishment Clause was added to the Constitution to protect states from a federal establishment of religion. The decision to incorporate the Establishment Clause against the states divorced that constitutional protection from its purpose and has led to confusion in the law.
The so-called Lemon test is emblematic of this confusion. Rather than protecting an individual right, the test has instead bred hostility against religion. This is a result that was never intended by either the founding generation. Further, the test is internally inconsistent and has led to further confusion in the law.
This Court rendered the Establishment Clause applicable to the States in 1947 without a word of analysis. Its decision has severely undermined the ability of the States to exercise their core police powers to advance the health, safety, welfare, and particularly the morals of the people. The incorporation decision itself should be revisited. At the very least, the incorporated Establishment Clause should be applied against the States less restrictively than it is applied against the federal government. Finally, certiorari is warranted to overrule or at least severely curtail the Lemon test.