Establishment Clause and Historical Practices and Tradition

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As previously discussed, the Supreme Court has long evaluated Establishment Clause challenges in part by reference to historical understandings of the Clause.1 That mode of analysis did not disappear after the Court’s decision in Lemon,2 and eventually became the Court’s primary mode of analysis, as further discussed below.3 However, while earlier cases largely relied on history to rule government actions unconstitutional, post-Lemon cases largely pointed to historical tradition to uphold government actions that the Court saw as permissible accommodations of religion.4 For example, in an opinion rejecting an Establishment Clause challenge to a city’s Christmas display, the Court noted the “unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.” 5

In the 2019 decision American Legion v. American Humanist Association, a split majority of the Supreme Court rejected a constitutional challenge to a Latin Cross erected as a World War I memorial.6 The plurality opinion (with some support from Justice Clarence Thomas, concurring in the judgment) stated that “longstanding monuments, symbols, and practices” should not be evaluated under Lemon ‘s tripartite analysis, but should instead be considered constitutional so long as they “follow in” a historical “tradition” of religious accommodation.7 A majority of the Court acknowledged that the cross was a Christian symbol, but decided that “the symbol took on an added secular meaning when used in World War I memorials.” 8 Among other factors, the Court emphasized that the monument had “stood undisturbed for nearly a century” and had “acquired historical importance” to the community.9 Consequently, the Court concluded that “destroying or defacing the Cross . . . would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment.” 10

The Supreme Court had previously applied an analysis looking to historical traditions in two cases involving prayer at state and local legislative sessions.11 In 1983’s Marsh v. Chambers, the Court noted that “opening . . . sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.” 12 It upheld the state’s prayer practice after concluding that the public employment of the legislative chaplain and the “Judeo-Christian” nature of the prayers were consistent with historical practices, given that “there [was] no indication that the prayer opportunity ha[d] been exploited to proselytize or advance any one, or to disparage any other, faith or belief.” 13 The Supreme Court engaged in a similar analysis in 2014’s Town of Greece v. Galloway, ruling that a municipality’s challenged prayer practices “fit[ ] within the tradition long followed in Congress and the state legislatures.” 14 The Court rejected an argument that the prayers should be considered unconstitutional because they were identified with a single religion, saying that some of the early prayers during congressional sessions had a “decidedly Christian nature.” 15 These legislative prayer cases were presumably encompassed in the American Legion plurality’s reference to “longstanding . . . practices,” 16 although future cases will have to elucidate what other government activities may be described by that phrase.

In 2022’s Kennedy v. Bremerton School District, the Court ruled definitively that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” 17 While the Court’s opinion said Establishment Clause analysis should focus “on original meaning and history,” 18 its own analysis of the school prayer practice at issue in that case proceeded by looking to prior cases on coercion.19 Apart from stating generally that coercion was part of “a historically sensitive understanding” of the Clause, the Court did not look to evidence of original meaning or Founding-era history relevant to the specific disputed practice.20 Accordingly, the opinion left open a number of questions regarding how to analyze any disputed government action by reference to historical tradition.

1: See Amdt1.3.5.2 Early Cases on Non-Financial Assistance to Religion.
2: See, e.g., Lynch v. Donnelly, 465 U.S. 668, 673 (1984) ( “The Court’s interpretation of the Establishment Clause has comported with what history reveals was the contemporaneous understanding of its guarantees.” ).
3: Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 23 (U.S. June 27, 2022).
4: Compare, e.g., Lynch, 465 U.S. at 681 (upholding a Christmas display that “depict[ed] the historical origins” of the event, consistent with prior accommodations taking “note of a significant historical religious event” ), and Van Orden v. Perry, 545 U.S. 677, 686 (2005) (plurality opinion) (citing Lynch and looking to “our Nation’s history” and factual context to uphold a Ten Commandments monument on the grounds of the Texas State Capitol), with, e.g., Engel v. Vitale, 370 U.S. 421, 429–30 (1962) (holding a school prayer practice was contrary to Founding Era history), and Torcaso v. Watkins, 367 U.S. 488, 491–92 (1961) (invalidating a religious test oath after concluding history “discredited such oaths” ).
5: Lynch, 465 U.S. at 674.
6: Am. Legion v. Am. Humanist Ass’n, No. 17-1717, slip op. at 28 (U.S. June 20, 2019).
7: Id. at 16, 25, 28 (plurality opinion). See also id. at 6 (Thomas, J., concurring in judgment) (agreeing with the plurality opinion rejecting Lemon's “relevance” to certain claims but saying that he “would take the logical next step and overrule the Lemon test in all contexts” ).
8: Id. at 28.
9: Id. at 28, 31.
10: Id. at 31.
11: Town of Greece v. Galloway, 572 U.S. 565, 591–92 (2014); Marsh v. Chambers, 463 U.S. 783, 793 (1983).
12: Marsh, 463 U.S. at 786.
13: Id. at 793–95.
14: Town of Greece, 572 U.S. at 577.
15: Id. at 578–79. See also id. at 583–84 (looking to prayers offered to Congress to “discern . . . a commonality of theme and tone” and concluding that “[t]he prayers delivered in the town of Greece do not fall outside the tradition this Court has recognized” ).
16: See Am. Legion v. Am. Humanist Ass’n, No. 17-1717, slip op. at 16 (U.S. June 20, 2019) (plurality opinion).
17: Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 23 (U.S. June 27, 2022) (quoting Town of Greece v. Galloway, 572 U.S. 565, 576 (2014)).
18: Id. at 24.
19: See id. at 24–30. The coercion analysis in the case is discussed in Amdt1.3.7.2 Coercion and Establishment Clause Doctrine.
20: See id. at 25.