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By Jimmy Morrissey
Of the many protections offered by the U.S. Constitution, there are few as notable and impactful as those offered by the Establishment Clause of the First Amendment. The importance of a secular state was not lost on the founders when they ensured that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”
Over 200 years later, the Supreme Court ruled in Town of Greece v. Galloway that the Establishment Clause must be interpreted by analyzing the history and tradition behind a challenged practice.
Courts have struggled to implement the Town of Greece court’s analysis, and several circuits have begun using a “history test” when reviewing Establishment Clause claims.
Use of such a test is profoundly dangerous in two ways: First, an otherwise unconstitutional practice may pass muster merely because it is rooted in tradition. Second, the test’s lack of specificity gives courts an opportunity to carve out exceptions on an ad hoc basis, thereby undermining the protections offered by the Establishment Clause. These protections are foundational to the rights of an individual in a democratic society and must be upheld.
Before its 1983 ruling in Marsh v. Chambers, the Supreme Court had relied on a series of tests to determine whether a practice violated the Establishment Clause. These tests typically focused on whether the practice advanced or inhibited a particular religion, made adherence to a religion relevant in any way to a person’s political standing, or directed a formal religious exercise in such a way as to oblige the participation of objectors. However, the court carved out an exception to these tests in Marsh when it ruled that “legislative prayer” — the practice of employing a legislative chaplain and beginning legislative meetings with a prayer — was constitutional under the Establishment Clause.
In Town of Greece, the Supreme Court attempted to clarify its ruling in Marsh by establishing that legislative prayer had a firm rooting in the country’s political traditions. The court held that a prayer given at a monthly town board meeting comported with the tradition of legislative prayer and was not unconstitutional under the Establishment Clause. Reasoning that legislative prayer involved a limited context where prayer “could coexist with the principles of disestablishment and religious freedom” and that such prayer was properly constrained by its occurrence at the beginning of legislative sessions, the court invoked Marsh to declare the town board invocations constitutional.
The first danger of the court’s reliance on a practice’s history and tradition has already manifested itself in Fields v. Speaker of the Pennsylvania House of Representatives. In Fields, the 3rd U.S. Circuit Court of Appeals applied a history test that it derived from Town of Greece to rule that an opening prayer before legislative meetings was constitutional. What separates this case from those mentioned above, however, is that the Pennsylvania Legislature had prohibited nontheists from offering the opening prayer. In its bizarre reasoning, the 3rd Circuit found that because the historical practice of legislative prayer involved the necessary element of praying to a higher power, a legislature may insist on having traditional, theistic opening prayers.
Fields provides an example of a court upholding an otherwise unconstitutional practice merely because it is in line with tradition. Even the court in Town of Greece was clear that Marsh “must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation.” And yet, the 3rd Circuit upheld a policy that on its face discriminates on the basis of one’s religious beliefs and makes adherence to religion plainly relevant to a person’s political standing, citing the history behind the tradition of legislative prayer as a justification. If the court wishes to take history and tradition into account when evaluating an Establishment Clause claim, it must make clear that such considerations should never be dispositive, especially where a challenged practice discriminates so freely and flagrantly.
The second danger of a widespread history test is more subtle than the first, but no less insidious. Circuit courts have already begun to apply the historical analysis undergone in Town of Greece to other contexts, making broad comparisons between legislative prayer and more novel practices. In American Humanist Association v. McCarty, the 5th Circuit found that invocations given before school board meetings open to the public were constitutional. The court applied a history test that it had derived from Town of Greece, drawing a comparison between prayers given before a legislative session with only lawmakers present and invocations given before a public school board meeting. While acknowledging that there was a difference in the context of each practice, namely through the presence of children, the court ultimately reasoned that the mere presence of children or other members of the public who were not lawmakers themselves did not exclude the school board invocations from the same historical exception given to legislative prayer.
American Humanist Association provides an example of how a history test can be stretched to allow for any number of practices to be excepted from the Establishment Clause’s requirements. The 5th Circuit acknowledged that prayers at such meetings lacked the exact historical practice of the sort in Town of Greece, and while noting the difference in context between the tradition of legislative prayer and the school board invocations, was still willing to stretch the traditional understanding of legislative prayer to include the practice at issue. It is not hard to see how any number of practices could be given a similar treatment by a sympathetic court, transforming the tradition and history analysis into mere pretext for carving out more and more exceptions to constitutional safeguards. A proper analysis of a practice’s tradition and history under the Establishment Clause should focus on the history of the specific practice being challenged; to be more flexible with a history analysis would erode the clause’s meaning over time.
In Marsh and Town of Greece, the Supreme Court may have intended to provide a pragmatic alternative in Establishment Clause cases where longstanding practices were challenged for their constitutionality. However, the lack of specificity with which this analysis was implemented has led to confusion and the possibility of attacks on the protection offered by the clause. The first danger of a widespread history test in response to this unclear analysis is that practices which are clearly unconstitutional, such as the exclusion of nontheist chaplains in Fields, may pass constitutional muster. Additionally, courts may seize upon the opportunity created by such a vague test to create multiple exceptions to the Establishment Clause, eroding its force over time.
In order to avoid these outcomes, the Supreme Court must firmly address that any such history test cannot be dispositive of a practice’s constitutionality, and that a historical analysis must be focused on the specific practice in question. Surely no tradition in such a test is more important than the tradition of free religious practice in a democratic society.
Jimmy Morrissey is from St. Paul, Minn., and graduated from DePaul University with a degree in political science. Jimmy attends the University of Wisconsin School of Law and is a member of the Wisconsin Journal of Law, Gender & Society.