But Kennedy will probably win his case, because the court is in the grip of a phony originalism that has nothing to do with actual original meaning.
In all likelihood they will decide in his favor. It was the Hobby Lobby case that started this mess. Since then the court has continued to weaken the 1st amendment's establishment clause.
The Supreme Court’s first avowed originalist, Hugo Black (the architect of the Establishment Clause doctrine that today’s justices are likely to trash), thought that the First Amendment barred favoritism for “persons who have, or perhaps more properly profess to have, a belief in some particular kind of religious concept.”
That is precisely what it is supposed to do.
You have to go back to the passage of the Religious Freedom Restoration Act which started the slippery slope.
RFRA, as applied to the states, was held unconstitutional by the United States Supreme Court in the City of Boerne v. Flores decision in 1997, which ruled that the RFRA is not a proper exercise of Congress's enforcement power. However, it continues to be applied to the federal government—for instance, in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006) and Burwell v. Hobby Lobby Stores, Inc. (2014). These cases did not consider whether Congress was violating the Establishment Clause if it carves out exemptions based on religious laws from federal laws and regulations that it itself has authorized.
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