FFRF awarded Jordan $2,000.
By Jordan Glassman
In 2014, the Supreme Court drew sufficient analogies between the pro forma prayer at the Nebraska Legislature at issue in Marsh v. Chambers and the invocations preceding the intimate town hall meetings of Town of Greece v. Galloway to extend the 1983 holding and uphold the mostly Christian prayers recited for over a decade in upstate New York. Despite Justice Elena Kagan’s dissent and its unsubtle portrait of alienation, none of the justices questioned the central holding of Marsh. Instead, they debated its fact-sensitive application to the town hall setting. Since then, indications that this history analysis is seeping out of the narrow context of these seminal rulings and morphing into a broadly applicable “history test” have begun to mount.
The court insisted that these holdings should “not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation.” Instead, “the Establishment Clause must be interpreted by reference to historical practices and understandings” and “it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.”
But five years later, the court again expanded the scope of Marsh’s history test in American Legion v. American Humanist Association. This holding went beyond “specific practices” to include a “presumption of constitutionality for longstanding monuments, symbols, and practices.” With the court’s sympathy toward religion near its zenith, it is worth considering the dangers of a still more broadly applicable history test and insisting on “[defining] the precise boundaries” of its application to guard against those dangers.
Ascertaining history with perfect fidelity is difficult or impossible, especially if it concerns subjective states of mind. In Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert H. Jackson famously lamented the futility of trying to divine what the founders might have had in mind:
“Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.”
Compounding the literal difficulty of knowing facts about the past is the certainty that historical accuracy will give way to unreliable “law office history” in the adversarial context. The result is dubious historical claims which, unlike facts in a typical decision, attain precedential value.
In addition to the difficulty of ascertaining the distant past with any confidence, the scope of its application should be quite narrow, if the reasoning of Marsh is to be taken seriously. Scholars at Americans United for Separation of Church and State recently criticized the naively applied history test of Galloway as, at best, only applying to a small sliver of federal actions in the few years following the ratification of the First Amendment. They argue persuasively that expanding the history test of Marsh and Galloway beyond this narrow scope is likely to result in jurisprudence that strays unpredictably from well-established Establishment Clause doctrine.
Moreover, members of the court have noted for some time that the historical test fails to account for the evolution of American society. For example, throughout Galloway, the court assumes as if uncontroversial that prayer “[lends] gravity to the occasion” and “sets the mind to a higher purpose.” But as Justice William J. Brennan noted in his dissent in Marsh, “practices which may have been objectionable to no one in the time of Jefferson and Madison may today be highly offensive to many persons, the deeply devout and the nonbelievers alike.” Any historical practice, “even if it might look ‘nonsectarian’ to nine justices of the Supreme Court” could induce divisive reactions at any point in the future. “[T]he Constitution is not a static document whose meaning on every detail is fixed for all time by the life experience of the Framers.”
Perhaps the biggest present danger is how the doctrine seems likely to seep into more and more Establishment Clause jurisprudence given the sympathies of the current court. In his concurrence in American Legion, Justice Brett Kavanaugh posits an informal taxonomy of Establishment Clause cases:
(1) religious symbols on government property and religious speech at government events; (2) religious accommodations and exemptions from generally applicable laws; (3) government benefits and tax exemptions for religious organizations; (4) religious expression in public schools; and (5) regulation of private religious speech in public forums.
While insisting that the history test is only applicable to the first category, he also invites its application to the remaining four: “each category of Establishment Clause cases has its own principles based on history, tradition, and precedent. . . . If the challenged government practice is not coercive and . . . is rooted in history and tradition . . . then there ordinarily is no Establishment Clause violation.”
The remaining categories are ripe for being brought into the fold of the historical test. For example, in the second category concerning exemptions, Galloway appeared in the plaintiffs’ reply brief in Fulton v. City of Philadelphia, a case involving religious organizations’ right to discriminate. The petitioners argued that “Catholic’s five decades of service to Philadelphia children under city contracts, unchallenged until 2018, easily passes muster under . . . the historical practices test,” apparently reducing the range of the necessary historical reach from 250 years to only 50.
In Gaylor v. Mnuchin, a lawsuit brought by the venerable Freedom From Religion Foundation challenging tax breaks for ministers, the 7th Circuit upheld the benefit. The court takes note of a “lengthy tradition of tax exemptions for religion” and held that the tax break “does not violate the Establishment Clause under the historical significance test.”
In fact, it is easy to imagine the historical test applied to any of the categories enumerated by Kavanaugh. From the graduation prayers of Lee v. Weisman to the generally applicable drug laws of Employment Division, Department of Human Resources of Oregon v. Smith, the broadly applicable history test brings to mind Justice Arthur Goldberg’s concession that “great consequences can grow from small beginnings.”
Since there is no reason to expect the current court will move away from an unsympathetic view toward Establishment Clause challenges, an overinclusive history test will remain the law of the land for some time. Advocates representing plaintiffs seeking to resist the establishment of religion should assist courts in articulating boundaries to prevent overreach.
To do so, the application of the test must be limited to objective questions about history, to the extent that such questions are even answerable. The test cannot be allowed to expand to include subjective questions about how people thought or felt. Recent post-Galloway cases illustrate judges beginning to push this boundary.
In Freedom from Religion Foundation, Inc. v. Concord Community Schools, the 7th Circuit affirmed a district court decision allowing the performance of a nativity scene at a public school to continue in an abated form. In a concurrence, one judge cites to Galloway approvingly while opining that “[p]erforming a work of art does not establish [a state religion] . . . The Supreme Court’s decisions permitting legislatures to open their sessions with prayer show this.” While the historical fact of whether certain works of art were exhibited in the past might be ascertainable, inferring therefrom that something has “become part of the fabric of our society” allows the court to invade the conscience of those engaged in the intensely personal consumption of artwork. A court cannot possibly know how people felt about artwork.
Likewise, in Doe v. United States, the 8th Circuit affirmed the district court’s dismissal of an action to remove a religious motto from the national currency. The court muses that “given that our founding documents protect rights that were thought to derive from God, it is unsurprising that religion has been closely identified with our history and government, a relationship still evidenced today in our public life,” while citing approvingly to Galloway. Once again, the court makes an inference about how people thought on the basis of some historical series of events. But the court cannot possibly know how people thought.
These are not harmless comments made in dicta. To be applied objectively, the historical test must be applied only to ascertainable facts about the past. Inferences about how or what people thought about those practices cannot be allowed. This approach will cabin the historical test’s application to contexts like the benign legislative prayer of Marsh, where how those in proximity to the practice thought or felt about it is beside the point. For when the door is opened to make post-Galloway decisions on the basis of what people apparently thought or what their art seems to reflect, the test can accommodate any proposition whatsoever.
Jordan Glassman, who attends the University of North Carolina Law School, has an academic background in astronomy and physics. After serving in the Navy as a submarine officer and then working as a software engineer, Jordan returned to law school to pursue a career in tech-adjacent areas of law. He lives in Durham, N.C., with his partner Beth and son River.