The US Supreme Court’s conservative majority makes clear in decisions on gun ownership, abortion rights, and the line between church and state that it will weigh constitutional questions according to how they might have been decided in centuries past.
In a triumph of originalism—the interpretive theory most commonly associated with conservatism—the Supreme Court is increasingly focused on what the country’s founders thought constitutional protections meant.
Though history and tradition have always been part of the court’s analysis when deciding the bounds of constitutional rights, now it is the exclusive mechanism, said Holly Hollman of the Baptist Joint Committee, a faith-based nonprofit focused on religious liberty.
‘Killed and Buried’
The court’s latest use of the history-and-tradition method came Monday in a case about the separation of church and state.
The 6-3 decision in Kennedy v. Bremerton School District overturned a more than 50-year-old test for determining when the government has become too entangled in religion, pointing instead to history and tradition.
Justice Neil Gorsuch chastised the lower court for relying on its 1971 ruling Lemon v. Kurtzman to determine whether a high school football coach could be prohibited from praying on the field, writing “this Court long ago abandoned Lemon and its endorsement test offshoot.”
The historical test “will provide much needed clarity and consistency to an area of law that has been notoriously confused and inconsistent,” said Notre Dame Law School Professor Richard Garnett, who filed an amicus brief supporting the coach.
But George Washington law professor Robert Tuttle warned against looking solely to history to provide answers to the most consequential questions of the day. The history-and-tradition test is “entirely ambiguous” and is “easily manipulated by judges to foster their own agenda.”
Conservative justices have long criticized the Lemon test, which was intended to suss out when a government has violated the separation of church and state. The test called for courts to determine whether a “reasonable observer” would consider government action an endorsement of religion.
In 1993, Justice Antonin Scalia likened the test to “some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad,” despite “being repeatedly killed and buried.”
The court on Monday didn’t explicitly say it was overruling the test. Instead it argued that the court had already done so by refusing to apply it in other religion cases.
The decision “has finally made clear and explicit the fact that the so-called Lemon test is, and has long been, abandoned,” Garnett said. “No longer are courts and litigators required to engage in abstract speculations about the possibility that official actions might cause hypothetical observers to perceive ‘endorsements’ of religion,” he added.
Lori Windham of the conservative Becket Fund, noted that while some lower courts had already abandoned Lemon, governments and their lawyers were still often relying it.
Windham pointed to Gorsuch’s concurring opinion in Shurtleff v. Boston—decided earlier this term—in which he chided the city of Boston for relying on Lemon to deny a Christian group the opportunity to fly its flag in front of city hall. “It was a strategy as risky as it was unsound,” Gorsuch said.
That concurrence was a preview of Monday’s majority, Windham said.
‘History and Tradition’
“In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings,” Gorsuch wrote in Kennedy for the majority, which included all six of the court’s conservatives.
In dissent, Justice Sonia Sotomayor criticized the majority for failing to provide guidance to lower courts considering church-state separation.
“The Court reserves any meaningful explanation of its history-and-tradition test for another day, content for now to disguise it as established law and move on,” Sotomayor wrote. She was joined by the court’s other two liberal justices.
Hollman of the Baptist Joint Committee, which filed a brief in support of the school in the Kennedy case, said that historical approach can be selectively applied to get conservative outcomes.
Pointing to the court’s 6-3 decision on June 24 to overturn the 1973 abortion rights precedent in Roe v. Wade, Ben Jealous of the progressive People For the American Way said the conservative majority “is bent on inventing new rules for getting to the answers the far-right majority wants in case after case.”
What the historical approach will ultimately look like is still in question, said Asma Uddin of the nonprofit Freedom Forum said using Lemon as an example.
“The idea is that instead of asking whether some hypothetical reasonable observer might think the government is endorsing religion, as courts had to ask under the Lemon and endorsement tests, courts can, instead, ask whether the challenged government action shares the characteristics of an establishment” of religion “at the time of the Founding,” Uddin said.