From Shield to Sword: Straying from the Original Meaning of the Establishment Clause 

Tavia Bruxellas McAlister

J.D. Candidate | University of Nebraska - College of Law

I. INTRODUCTION

The Establishment Clause is an integral part of the First Amendment, which states, “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.”^[1] Although this clause prohibits the establishment of a national religion, thereby eliminating federal government control of the church, it does not specify how near or far the two can, or must, be to coexist in a functioning manner. As such, the courts are left to grapple with the practicalities of such a clause.

The original view on this matter, was one based in textualism-originalism, which held the Establishment Clause’s purpose was to protect citizens only from actual legal coercion.^[2] More recently, a living constitutionalist perspective, which champions strict separation, has risen to challenge textualism-originalism.^[3] This challenge has resulted in a flood of litigation which produced the mess that is Establishment Clause jurisprudence.^[4] A departure from the standard of actual legal coercion has left the country with an array of inconsistent decisions across a myriad of subjects including access to government programs and facilities, government imagery, and school choice.^[5] Most recently, the conflict has extended to question the constitutionality of legislator-led prayer, and courts across the country are split.^[6] Although these practices have long prevailed, they no longer stand without legal challenge.

In light of the Supreme Court’s decision in Kennedy v. Bremerton School District, which clarified that a test of history and tradition should be used to evaluate the Establishment Clause, this Article advocates for an interpretation of the relevant history and tradition which promotes religious liberty, freedom of conscience, and maintains respect for the founding.^[7] It will propose a return to the founders’ original conception of actual legal coercion, which would not only provide the broadest protection for these rights, but also provide an easily applicable test for courts.

Following the introduction in Part I, Part II of this Article discusses the two prominent approaches to the Establishment Clause. Part III delves into a few relevant aspects of the history surrounding the purpose of the Clause and its force and funds background. Part IV explores the current condition of the jurisprudence via an overview of the case-law in a variety of areas, including legislative prayer. Part IV also explains the inconsistent rules and standards which have arisen as a result of living constitutionalism. Part V addresses the recent ruling in Kennedy v. Bremerton School District, while Part VI outlines questions still left by Kennedy, and previews new areas of litigation. It also serves as a reminder of the dangers posed by departing from an actual legal coercion standard.

II.            The Split in Views Which Led to the Misunderstanding of the Establishment Clause

In 1802, Thomas Jefferson wrote a letter to the Danbury Baptist Church reassuring them that their fears of persecution by the federal government, based on religion, were unfounded because the First Amendment “buil[t] a wall of separation between church and state.”^[8] The letter mentions nothing of restrictions on religion itself.^[9] One hundred and forty-five years later, in Everson v. Board of Education, the Supreme Court addressed its first case on the Establishment Clause.^[10] In that case, the majority, written by Justice Black, cited Jefferson’s letter and his language of separation to justify a wall that was “high and impregnable” so as to “stamp out” and “forever suppress” religion in the public sphere.^[11] After 145 years, the meaning of the Establishment Clause was misunderstood. After 222 years, courts have not gotten any closer to correcting this misunderstanding. How and why is this happening?

1. Two Perspectives

In Establishment Clause jurisprudence, two competing views have emerged and created confusion surrounding the purpose of the Clause, and, as this Article asserts, have contributed to its misinterpretation. The first view champions a living constitutionalist viewpoint.^[12] In general, this perspective allows for fluidity of interpretation because of its belief that the Constitution is a continually evolving document.^[13] Therefore, a living constitutionalist’s viewpoint is informed by, and can change with, societal norms, economic turns, and judicial perception, since there is no one meaning ascribed to the Constitution.^[14] With regard to the Establishment Clause specifically, living constitutionalists point to the history of religious strife and violence as the reason to maintain strict separation.^[15] This first view is best  illustrated through a variety of opinions written by Justice Breyer, although the roots of the argument can be traced back to Everson^[16] (the first main case to discuss the Establishment Clause).^[17]

In American Legion v. American Humanists Association, a case regarding a WWI memorial shaped as a cross, Justice Breyer stated “the religion clauses were meant to . . . avoid religiously based social conflict and maintain that separation of church and state.^[18] The opinion is similarly stated in Zelman v. Simmons-Harris,^[19] which found “[the religion clauses] seek to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike.”^[20] The same was again noted in the Justice’s dissent in Carson v. Makin,^[21] where he stated, “with greater religious diversity comes greater risk of religiously based strife, conflict, and social division,” and alleged the religion clauses were intended to “help avoid that disunion.”^[22]

Oddly enough, however, considering its grounding in history, this view espouses that neither history nor tradition can be an adequate test for Establishment Clause jurisprudence, and that, in reality, no test will prove sufficiently satisfactory because, as the Justice explained, no test can balance a measure of an action’s neutrality, nor the tolerance level of the Establishment Clause.^[23] Instead of using any particular test, Justice Breyer advocated for the flexibility of judicial discretion and review on a case-by-case basis.^[24] This, again, reflects a living constitutionalist’s belief that the Constitution’s meaning is malleable and ever changing with societal shifts.^[25] It is easy to see how this lack of any guideposts contributed to the lack of uniformity in case law, which is discussed further below.

The second viewpoint is that of textualism-originalism.^[26] As can be inferred, textualist-originalists seek to interpret the constitution based on what it meant at the time of enactment by those who enacted it, thereby using history to determine original meaning and the general public’s understanding of the application of the clause.^[27] In this view, however, the focus of the history is on those action which created a threat of actual legal coercion through “force,” mandated religious observance, or “funds,” financial support of a religion; in other words, “force and funds.”^[28] This phrase, “force and funds,” will be returned to frequently throughout this Article, and represents the standard of actual legal coercion, which is advocated for in this Article. This viewpoint is classically embodied by Justice Thomas, although other judges could be cited, as well.^[29]

In Van Orden v. Perry,^[30] Justice Thomas reminded the majority that, “establishment at the founding involved, for example, mandatory observance or mandatory payment of taxes supporting ministers” and that any government practices which do not fall within this, “simply do not implicate the possible liberty interest.”^[31] In Town of Greece v. Galloway,^[32] he similarly stated the areas of establishment which were of concern, “involved actual legal coercion. They exercised government power in order to exact financial support [or] compel religious observance.”^[33]

Although the difference in implication and application of these views is drastic, in both of these perspectives, history is cited as the foundation for the view. Since history is central to both views, it is becoming to analyze some of the history of the Establishment Clause in order to determine which view of the history is the most accurate view.

III.          THE LONG FORGOTTEN, AND OFTEN IGNORED, HISTORY OF THE ESTABLISHMENT CLAUSE

In order to grasp the broader debate surrounding the Establishment Clause, it is not only important, but also vital to assess the ideological background of those individuals in the founding generation. The history of the Establishment Clause is nuanced and complicated, however. ^[34]  It is neither the purpose nor the hope of this Article to exhaustively relay the entirety of the Establishment Clause's history; other works have done so already, and they have been drawn upon to craft this Article. Instead, the history being referenced here focuses on the religious beliefs behind the Establishment Clause and how these religious frameworks impacted the social and political decisions at the time of the founding. More specifically, this historical analysis explores the effects of religious strife on the Establishment Clause, while tracing the concept of actual legal coercion.

A traditional establishment is defined as, “the promotion and inculcation of a common set of beliefs through government authority.”^[35] Roughly six categories exist for the types of laws amounting to an establishment: “(1) control over doctrine, governance, and personnel of the church; (2) compulsory church attendance; (3) financial support; (4) prohibitions on worship in dissenting churches; (5) use of church institutions for public functions; and (6) restriction of political participation to members of the established church.”^[36] Already it can be seen that these categories revolve around either forcing an individual into some type of religious observance, or making them fund the same. In this regard, “compulsion is not just an element, it is the essence of an establishment.”^[37]

Around the time of the founding, these religious establishments were very common.^[38] The United States is a country influenced heavily by Christianity.^[39] Nearly every individual of European decent in the colonies identified as a Christian in 1776, excluding roughly 2,500 Jews.^[40] Within Christianity, however, there remained great religious variety and distinction between sects, which, in many ways, is distinct from the denominational differences of today.^[41] It is those differences which have allowed scholars to calculate the specific denominational percentages of the various colonies.^[42]

Virginia’s charter, for example, specifically mandated its loyalty to the Church of England, following the same establishment provisions as the mother country.^[43] The colony remained appropriately loyal to the Church, and accordingly hostile to other protestant denominations until the eve of the Revolution.^[44] New England was slightly more diverse in the fact that the religious sect of an area changed based on the majority denomination in each municipality.^[45] At the inception of the northern colonies, the population consisted of either Puritans or Pilgrims, but slowly those two groups became less distinct and by the Revolution, the New England colonies were also populated with Anglicans, Quakers, and Baptists.^[46]

Georgia and the Carolinas were slower in their religious development because of the difficulty in building churches and attracting members of the clergy, not for lack of faith.^[47] Later, both Georgia and South Carolina adopted the Church of England as their state established religion, although they still remained more tolerant than some of their colonial counterparts.^[48] Pennsylvania, Delaware, New Jersey, and Rhode Island, along with parts of New York, did not have government-established religion, which made them especially appealing to those who dissented from the Church of England.^[49]

The different denominational makeups of the colonies often caused friction between those in the majority and those in the minority religions in the colony. Accordingly, the colonies were anything but free from religious strife.^[50] This is evidenced by the religious persecution the various denominations inflicted upon each other.^[51] “Quakers were persecuted in both Anglican and Puritan colonies, and in a few instances exiled or executed for their faith. . . . Baptists were also widely despised. But Catholics were the most common target of religious intolerance.”^[52] Between 1720 and 1750, a study found that absence from church services was the most commonly indicted offense in many of the counties studied.^[53] The example of the trial of Anne Hutchinson, which took place in the Massachusetts Colony personifies these intolerances.^[54] Anne Hutchinson was put on trial, because she held religious meetings in her home, where she interpreted the Bible to proclaim salvation through faith.^[55] Leaders in Massachusetts at the time held tight to the idea of salvation by works.^[56] For her “crime,” Anne Hutchinson was imprisoned and then forever banished from the Massachusetts colony.^[57]

The involvement of religion generally, and Christianity specifically, was not limited simply to personal identification and the happenstance of geographical location alone, however.^[58] Because many of the founders fundamentally believed in the concept of a sovereign God^[59] with higher authority than all earthly government,^[60] religion seeped its way into the political dialogue and was frequently used to articulate political and social philosophies.^[61] We need not look further than the Declaration of Independence, with its famous language “We hold these truths to be self-evident that all men are created equal.”^[62] The language which follows, however, is frequently forgotten – “they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness.”^[63] This phrase explained the founders’ belief that these unalienable rights were granted by the Creator, not the state.^[64] This belief about the authority of God is particularly important because it informed the founders’ view that religion could only be decided between man and God, whose authority was over government, and therefore was a private matter which could not be influenced by government.^[65] Because religion was a matter of conscience, it would stand that government’s only role would be the prevention of forcing and funding religion, not the censorship of it in the public square.^[66]

The Declaration of Independence is not, however, the only evidence of religious thought merging with political writing. According to a famous and extensive study done on the citations in the public political literature from 1760-1805, the Bible was found to be the most frequently cited work, accounting for roughly a third of all citations over 45 years (encompassing 44 percent of citations in the 1770’s).^[67] Saint Paul was cited as many times as the two leading thinkers, Montesquieu and Blackstone (8.3 percent and 7.9 percent respectively).^[68] These numbers only considered a tenth of the political sermon pamphlets which were published.^[69] If those had been counted, the percentage would have been much higher.^[70]

It is within this backdrop, both of religious strife and political-religious discourse, that the Revolutionary War occurred, and the United States of America was founded. In other words, the founders had certainly seen religious conflict, but they had also seen the free use of religion in political and public life, and if their intent in drafting the Establishment Clause had been to avoid religious conflict, they could have called upon those experiences. Instead they went quite the other way.

In 1789 the states ratified the Constitution, but for many of the states, a condition upon their ratification was the promise of a bill of rights^[71] which was to be appended to the document.^[72] The importance of liberty of conscience was so innately enshrined in Americans, however, that it was severely debated whether a bill of rights was necessary, because, to many, its adoption implied such freedom was not a natural right, but one that had to be granted by the government.^[73] Early Americans feared such a bill of rights would actually limit their ability to freely exercise their religion.^[74] Thus, began the heated debate regarding the First Amendment.  

James Madison was the primary author of the entire Bill of Rights, which is quite significant, because it brings to the fore a set of instances which almost certainly impacted his drafting of the text.^[75] In 1785, a bill was proposed in the Virginia legislature to support the salaries and education of ministers.^[76] James Madison quickly responded by penning his famous Memorial and Remonstrance, objecting to the proposal.^[77] He outlined fifteen distinct offenses of the bill and all but three focused on either religious liberty and the necessity of protecting it in its fullest extent, or of the harm which would be done to the prosperity of religion if the government attempted to either promote or restrict it.^[78]

These objections made Madison’s fears clear. He was afraid, not of the religious sects, but that any individual, by government authority, would be either forced to follow, or required to fund, the beliefs of another (actual legal coercion).^[79] "Force and funds were the twin evils that animated the drafters of the Establishment Clause.”^[80] Madison was not afraid of religious unrest; in fact, he completely dispelled that possibility by saying:

Ought their Religions to be endowed above all others with extraordinary privileges by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these denominations to believe that they either covet pre-eminences over their fellow citizens or that they will be seduced by them from the common opposition to the measure.^[81]

In case there were any doubts regarding his feelings on the idea of religious friction, in his eleventh objection, Madison turned the living constitutionalist argument on its head.^[82] Rather than religion having caused the discord and violence as Justice Breyer would later believe, Madison accused the state, saying, “Torrents of blood have been spilt in the old world, by vain attempts of the secular arm, to extinguish religious discord.”^[83] He explains the remedy has been shown to be the “relaxation of narrow and rigorous policy,” and “equal and compleat liberty.”^[84]

Simply put, preventing the forcing and funding of religion were supposed to be the only roles of the government as it pertained to religion, not preventing division.^[85]

Madison’s brilliant defense garnered great support, and the bill died in committee the following year.^[86] It was replaced instead, by Thomas Jefferson’s Bill for Establishing Religious Freedom,^[87] which was championed by Madison, and swiftly passed into law protecting the very concerns Madison identified.^[88]

Only three years later, Madison drafted the amendments, and it would seem odd to think the meaning he so desired and found lacking in the proposed bill, and championed for when found in Jefferson’s statute, would have become very different in meaning when drafted in the Establishment Clause.^[89] This also, of course, seems logical when considering that the cry for a Bill of Rights had been for the purpose of protecting the citizen from the government, and not the other way around.^[90]

This entire history is relevant to ultimately make one point: in an environment of religious discord, the founders drafted and interpreted the First Amendment, not to protect against religious strife, but to shape a country that would allow it.

IV.          A SHIFT IN PERSPECTIVE: Changing the Establishment Clause from a Shield to a Sword.

1. The Breadth of the Attack: A Brief Survey of Establishment Clause Cases

As the history above indicates, the founding generation’s concern was for the longevity, livelihood, and fervor of the nation’s religions. The emergence of the living constitutionalist viewpoint (as it has been applied to the Establishment Clause) has misguided Americans, and subsequently redirected Establishment Clause jurisprudence, changing it from a shield of protection to a sword used in an attempt to cut out religion from any aspect of the public sphere. The living constitutionalist view, however, is not completely illogical, and if its premises had been true (that the founders intended for the Establishment Clause to prohibit even the potential for religious conflict) then the only logical conclusion would be to attack and litigate on every possible front. The following cases, spanning the breadth of the Establishment Clause are a witness to this philosophy.

Everson v. Board of Education provided the springboard for what would soon become a frontal assault on the Establishment Clause, although standing alone, the case would not raise eyebrows. In that case, the court held that reimbursing parents for the transportation of their children to private schools (whether religious or otherwise) was not a violation of the Establishment Clause.^[91] The issue came not from the conclusion of the case, however, but in the analysis written by Justice Black, where the focus was entirely on religious strife, and the duty of government to control it.^[92] The logic begins with the phrase, “America had been filled with turmoil, civil strife, and persecutions, generated in large part by established sects.”^[93] This reasoning justifies the ominous end rationale that, “the wall must be kept high and impregnable. We could not approve the slightest breach.”^[94]

Only a year later, in McCollum v. Board of Education, following the same logic, the Court found it was a violation of the Establishment Clause to allow religious leaders to provide optional classes on various religions to students in public schools whose parents granted express permission.^[95] Already departing from the idea of force and funds, the Court stated, although “an alternative may reduce the constraint; it does not eliminate the operation of influence.”^[96]

Building on this, Engle v. Vitale held the mere encouragement of reciting a nonsectarian daily prayer was a religious activity and could therefore not be done in public schools.^[97] Shortly thereafter, in School District of Abington Township v. Schempp, reading a scripture passage and reciting the Lord’s Prayer was also held to violate the Establishment Clause.^[98]

Perhaps even more concerning was the Court’s decision in Lee v. Weisman.^[99] There, it held that a Rabbi, the guest speaker, could not pray for a middle or high school graduation.^[100] To do so, the Court reasoned, would subject the students to “psychological coercion” and “social pressure,” despite the fact the “individual can concentrate on joining its message, meditate on her own religion, or let her mind wander.”^[101]

In all cases mentioned above, the practice was found to be entirely voluntary.^[102] In some instances, the practice was also entirely passive because all that was required was listening to the teacher, speaker, or intercom message.^[103] In these cases, the court began to consider inconsistent standards of influences far less than actual coercion (encouragement, influence, psychological coercion, etc.), which are difficult to pinpoint and always subject to changing interpretations.^[104] It is like building a fortress on shifting sand.

Establishment Clause jurisprudence took a more disturbing turn, however, in Lemon v. Kurtzman. That case created the first notable standard for the Establishment Clause.^[105] In Lemon, the court decided the constitutionality of two state statutes (one from Pennsylvania and the other from Rhode Island).^[106] Both statutes provided certain percentages of compensation to teachers at parochial schools for such things as salaries, textbooks, and supplies.^[107] The intent of the legislation, was to improve the quality of education at private schools by providing the salaries necessary to attract qualified professionals.^[108] Although the resources were only used for teachers teaching non-religious materials, the court held both statutes were unconstitutional.^[109] Drawing from the patterns of its approval or denial of previous cases, the Court created three factors by which to judge future cases: (1) the practice must have a secular purpose, (2) it cannot advance or inhibit religion, and (3) it cannot “foster ‘an excessive government entanglement in religion.’”^[110]

Pulling from Justice O’Connor’s concurrence in Lynch v. Donnelly, (where the Court held it was not a violation of the Establishment Clause for the city to use a government-owned Nativity scene in its downtown park Christmas display) the court officially added the Endorsement test to the Lemon test in County of Allegheny v. ACLU.^[111] The Endorsement test asks if the reasonable observer who viewed such an activity would believe the government was endorsing a religion in that particular context.^[112] Following a mix of Lemon and the Endorsement test, the Court in Allegheny decided a Nativity scene, similar to that in Lynch, placed in a court house during Christmas, violated the Establishment Clause, because it could appear to some that the city was endorsing Christianity.^[113] Ultimately, within the span of only five years, the Court’s inconsistent standards created rulings where a Nativity in a park, made up of government-owned components was acceptable but a Nativity inside a government-owned building was not.

2. Other Battle Grounds: Access to Government Programs and Facilities, Government Imagery, and School Choice

Lemon, along with its implementation in Alleghany, opened the floodgates of litigation, where there was no end to the religious practices which could be attacked, despite the fact that none dealt with the original concern of force or funds.^[114] The litigation over the next several decades span hundreds of cases and multiple topics, but they can broadly be broken into four categories: government displays adorned with religious imagery, equal access to public facilities and government programs, school choice, and legislative prayer.

Squarely between Lemon and Alleghany, the Court decided Stone v. Graham. There, the court dealt with a Kentucky statute which required that a copy of the Ten Commandments be put in every public classroom in the state.^[115] The court found this insufficiently secular as defined in Lemon, even though each display had printed on it, the explanation that its function was to display the role of the Ten Commandments in western legal tradition of the common law.^[116] The court then found a Ten Commandments display in a Kentucky courthouse to be unconstitutional in McCreary County v. ACLU.^[117] In the very next breath, however, the Court decided Van Orden v. Perry,^[118] where a Ten Commandments display was constitutional as displayed in the Texas capitol, because it was more “passive” than the display identified in Stone.^[119]

Yet another set of cases to compare is Alvarado v. City of San Jose and American Atheist, Inc. v. Duncan. In Alvarado, a Ninth Circuit case, it was held that a statue of the Aztec god Quetzalcoatl, on government land, was not a violation of the Establishment Clause, because a reasonable observer would not think the state was endorsing Aztec religion.^[120] American Atheist, Inc. v. Duncan, was a Tenth Circuit case where the court held a memorial to highway patrol officers who had given their lives, which was shaped like a cross, was a violation because a reasonable overseer would believe it was state-endorsed.^[121] These cases had similar fact patterns, yet somehow came to differing results.

The following cases deal with the issues, first, of access to government facilities and programs, and second, with school choice. Bowen v. Kendrick dealt with a federal grant program providing services for teenage pregnancy and sexuality.^[122] It held that giving funding to religiously affiliated organizations, which met the qualifications of the statute, was not unconstitutional.^[123] Rosenberger v. Rector found the University of Virginia violated a student newspaper’s right to free speech by denying them reimbursement for their club costs on the grounds that they were a religious organization.^[124] The Court also found it did not violate the Establishment Clause to allow the school funds to be allotted to the religious newspaper.^[125] In the recent case of Trinity Lutheran Church of Columbia v. Comer, the Court ruled denying government funds to an otherwise qualified organization solely because of it being a church, was not required by the Establishment Clause, and violated the Free Exercise Clause.^[126] In this context, courts have done a slightly better job of holding to the original guideposts of force and funds.

The issue of school choice has not escaped the barrage of litigation. As briefly mentioned above, Zelman v. Simmons-Harris held a parent’s choice to apply a public funds voucher to education at a private religious school does not violate the Establishment Clause.^[127] Finally, in 2022, Carson v. Makin confirmed that the Establishment Clause does not require use-based discrimination of religious groups from public benefits, and the Free Exercise Clause prohibits both use and status-based discrimination.^[128]

In the areas of access to government facilities and school choice, the Court has been more willing and able to maintain a conception of actual legal coercion, providing something akin to uniformity. These cases are slightly different from the others in that they contain either a Free Speech or Exercise component, which may contribute to this phenomenon. Another explanation for this may be that it is easier to see the religious discrimination when it is put into monetary contexts. This is not to say these issues are not continually challenged in court, however.^[129]

3. Legislator-Led Prayer: A Current Battleground

As has been evidenced by the slew of cases above, leaving no topic unscathed, the torrent of litigation has yielded much confusion in its varied results, which certainly departed from the Establishment Clause’s force and funds origin. This final area of contention highlights the differences between the textualist-originalist and living constitutionalist perspectives, and shines a light on one of the newest battlegrounds. The Supreme Court has yet to address a case on this topic, making it especially contentious.

4. The History of Legislator-led prayer

At the founding of the republic, and even before, it was found that the practice of prayer during legislative assemblies united colonists towards their common purposes as legislators.^[130] This was the case during the course of the Continental Congress, and at the inception of the U.S. Congress, with the near immediate adoption of permanent chaplains in both legislative bodies.^[131] The Supreme Court has since deemed such a practice to be presumptively consistent with the Bill of Rights and the Constitution.^[132] After all, it seems inconceivable that the founders would have implemented the office of the House and Senate Chaplain, only days after adopting the Bill of Rights, if they assumed it to be a violation of the freshly penned First Amendment.^[133]

Although Supreme Court precedent on the issue of legislative prayer has generally been uniform,^[134] legislator-led prayer has confused courts and caused a split in circuits.^[135] This should not be the case because legislator-led prayer has a wealth of historical support akin to that of legislative prayer.^[136] Again, this Article includes only a few examples of this similarly long history.

States have broadly allowed legislator-led prayer for over a century.^[137] In 1775 the South Carolina Provincial Congress assigned one of its members to pray at the opening of each session.^[138] The Connecticut Senate has included the practice since 1861, the House of Representatives of New Hampshire since 1863, and the Illinois Senate since 1849, along with many others.^[139] Additionally, in 1853, the Senate Judiciary Committee released a report on its analysis of the Establishment Clause in which it specifically stated, “the clause was not ‘intend[ed] to prohibit a just expression of religious devotion by the legislators of the nation, even in their public character as legislators.’”^[140]

a. Marsh v. Chambers

Although the Supreme Court has not decided a case on legislator-led prayer specifically, it has decided the issue of prayer in legislative sessions generally, and those decisions are instructive.

In 1983, the Supreme Court decided Marsh v. Chambers, a case in which a Nebraska legislator challenged the state’s practice of opening its legislative sessions with a prayer led by a chaplain, who received a salary from the state.^[141] The lower courts, applied the test from Lemon and found the practice to be an Establishment Clause violation.^[142] Once the case came before it, however, the Supreme Court reneged on its test from Lemon, reversing the decision.^[143] Instead, it reasoned that such a prayer practice had been continuously present since the founding, and although no unconstitutional act can be deemed constitutionally acceptable by mere grandfathering, such a lengthy history was persuasive.^[144] The only major caveat identified by the Court was that unless there is clear indication of proselytization, the judges should not entangle themselves with the contents of prayers.^[145]

Some have considered Marsh to be an exception to the Court’s Establishment Clause jurisprudence.^[146] It is not, however, as much an exception, as it is an early indication of the Court’s realization of the inadequacies of Lemon, and their desire to be rid of it.^[147] Because of the strong historical support for the constitutionality of legislative prayer, it was unnecessary to utilize the Lemon test.^[148] In a foreshadowing of what the test for the Establishment Clause would eventually become, the court stated, “it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.”^[149]

b. Town of Greece v. Galloway

Similarly, Town of Greece involved a town board, which opened its meetings with prayers given by the community members.^[150] The board obtained speakers by systematically calling churches in the local directory and keeping a list of willing volunteers, who happened to be from mostly Christian churches simply due to the religious demographics of the area.^[151] All faiths were welcome to pray, and the contents of the prayers were not monitored in any way, yet the plaintiffs claimed they felt coerced into the prayer practice by the invitation to stand.^[152] Following the historical approach from Marsh, the Court held the practice to be constitutional because the government was not to be involved in the content of prayers.^[153] Echoing Marsh, the Court ruled that sectarian prayer was per se constitutional, so long as it was not for the purpose of proselytizing the audience.^[154]

With regard to the test for coercion, however, the court could not create a majority opinion.^[155] Justice Kennedy, delivering the plurality opinion, wrote the Court should analyze the prayer practice over time for the likelihood of coercion, subtle social pressures such as directing prayer and the singling out of dissidents.^[156] Justice Alito, concurring, however, believed the test should only be actual legal coercion (force and funds), so as not to fall into the trap that is subjectivity.^[157] Legal coercion, as defined by Alito, would follow the historical meaning of force and funds and encompass such things as financial support for the church, or compelling observance.^[158] The indecision over the coercion test in Town of Greece, however, made the matter that much more difficult for lower courts to grapple with, as evidenced by the following material.

2.     Lund v. Rowan County

1. Facts

The issue of legislator-led prayer, has stumped judges and drastically displayed the conflict between living constitutionalism and textualist/originalist views. ^[159]

In Lund v. Rowan County, the board of commissioners opened their twice monthly meetings with a prayer led by one of the five commissioners.^[160] The prayers were never led by a member of the public or the clergy.^[161] Before prayers, the public was asked to stand for the benediction by using such phrases as “Please pray with me” and “Let us pray.”^[162] The content of the prayers themselves, were also openly sectarian, in that they regularly called on Jesus’ name, the Holy Spirit, and other basic Christian tenets, although the commissioners’ prayers were never reviewed nor were there requirements or limitations as to their phraseology.^[163] Nonetheless, the plaintiffs, attendees of the board meetings, said they felt “compelled to stand” and “excluded from the political process”^[164]

2. Views of the court

Although acknowledging the doctrinal importance of Marsh and Town of Greece, the court dismissed them as factually dissimilar to the present situation in Lund, because in Lund the prayers could only be offered by commissioners.^[165] The court concluded that prior jurisprudence focused only on examples of prayer given by members of the public or of religious groups, and that therefore, it was deliberate, because any other type of prayer (namely legislator-led prayer) improperly “identifies the government with religion more strongly” and “heightens the constitutional risk.”^[166] Echoing the living constitutionalist view that no one test will suffice, the court reasoned that Marsh and Town of Greece “in no way sought to dictate the outcomes of every subsequent case,” allowing the court to wildly abandon precedent, and instead follow a “fact intensive” balancing analysis.^[167]

The court alternatively focused its analysis specifically on commissioners as the sole prayer-givers, what they interpreted as the sectarian and/or proselytizing nature of the prayer, invitations to participate in the invocation, and the local government setting.^[168] The court stated that because only the commissioners were allowed to pray, it created a closed-universe of prayer-givers, which, in conjunction with the invites to stand, and the intimate nature of local government, created a coercive environment.^[169] The court also took issue with the fact that the prayer-givers were all Christian and only gave Christian benedictions, despite the fact that each member had been elected by their town, and could, of course, be voted out in the following election.^[170] Ironically, the court recognized that legislator-led prayer was not a rare phenomenon, even and especially, within the Fourth Circuit itself, nor could it be deemed per se unconstitutional.^[171] Nonetheless, the court found the practice unconstitutional and coercive, and justified its decision with the classic living constitutionalist view, explaining the Establishment Clause is an “instrument of social peace” used to “safeguard religious liberty and ward off political division along religious lines.”^[172]

To complete yet another example of the warring between the two views, the dissent points the reader to evidences of the majority’s underlying assumption that the Establishment Clause is an anti-religion clause.^[173] The dissent also criticizes the court-created emphasis on the prayer giver’s identity, saying it was inconsistent with the analysis in Town of Greece, because that case did not make the prayer giver’s identity a central point of the analysis, and it certainly did not exclude legislators.^[174] It has never been the policy of the Court that when an opinion is silent on a matter, as is Town of Greece on the matter of prayer-giver identity, it is to be interpreted as taking a position against the issue.^[175] Nevertheless, the Fourth Circuit ignored this logic.^[176]

Because it disregarded Town of Greece, Marsh, and any rule which might have been applicable, the majority was free to unacceptably dissect the individual prayer contents. Town of Greece had established sectarian prayers were acceptable in that if a prayer is allowed in governmental bodies, there can no longer be any limitations as to its content, otherwise it would “involve government in religious matters to a far greater degree than is the case under the town's current practice” where there was no prior review or formal requirements.^[177] The only analysis necessary is a brief glance at the prayers over time to ensure they focus on solemnizing the situation and do not bring to question the possibility of actual legal coercion.^[178] The majority ignored this, as well.

Most notably, the Lund dissent expressed its concern for the majority’s use of the coercion test in a way that was inconsistent with both precedent and the original meaning of the Establishment Clause.^[179] The majority took issue with the fact that the parties were invited to rise and/or bow their head, but this is precisely what happened in Town of Greece, which the Supreme Court found acceptable.^[180] In claiming the local government setting was more intimate, therefore individuals may comply to receive a desired outcome from the board, the majority completely ignored the fact that individuals were free to arrive late, leave the meeting, or simply decline to rise or bow their head.^[181] The dissent argued that Lund was actually more inclusive than Marsh, because rather than one prayer-giver, of one faith, for sixteen years, there were five prayer givers, who could be from any religious background and who were elected every few years.^[182]

3. A Circuit Split

Only two months after the decision in Lund, the Sixth Circuit came to the opposite conclusion in Bormuth v. County of Jackson, a case with a nearly identical factual background, officially creating a circuit split on the matter.^[183] There, the court held that legislator-led prayer did not violate the Establishment Clause when a town board opened its meetings with sectarian prayers led exclusively by the elected commissioners, without the possibility of outside benedictions.^[184] Adopting a definition of actual legal coercion, the court specifically found it was not coercive to ask the community members to rise and assume a reverent position.^[185] The legal arguments articulated in Bormuth by the majority and dissenting opinions are nearly identical to those in Lund, albeit in reverse, of course.

The above examination of legislative prayer, specifically the legal analyses surrounding the circuit split on legislator-led prayer, showcases the competing arguments advanced by the living constitutionalist and textualist-originalist perspectives. It also, however, displays the inconsistency which arises in a line of caselaw when the living constitutionalist, no-one-test-perspective, is utilized rather than a textualist-originalist viewpoint as had been employed in Marsh, Town of Greece and Bormuth.^[186] While these cases serve their explanatory purposes well, it is important to remember legislative prayer, including legislator-led prayer is as old as this country, making the need for this critique especially troubling.

D. Modern Day: The Current Chaos of the Establishment Clause

Despite its comparatively short jurisprudential history, courts have managed to thoroughly distort the Establishment Clause with a series of incongruent standards, tests and non-tests, and subjective balancing acts. Never has it been accepted that coercion can encompass all those things which one finds disagreeable, or even that which offend, yet that is precisely the premise many of these cases now draw from.^[187] As Judge Easterbrook reminded in American Jewish Congress v. Chicago, “speech is not coercive; the listener may do as he likes.”^[188] Therefore, it does not follow that the test for the Establishment Clause should be one of subjectivity, based on such things as “subtle coercive pressures,” psychological coercion, a reasonable observer, a particular prayer-giver, or whatever one assesses to be excessive government entanglement.^[189] Regardless of an individual’s views on each of the aforementioned cases, should they choose to follow a living constitutionalist view, they would be hard-pressed to know what behavior would be permissible or impermissible in the future. Only one thing can be certain, neither Lund, nor most of the other cases mentioned above, involved force or funds, that is, actual legal coercion.

V. THE TRIUMPH OF THE KENNEDY CASE

Confused judges and scholars were finally granted some relief in June 2022 with the decision in Kennedy v. Bremerton School District.^[190] In that case, a high school football coach had the practice of giving a private prayer of thanks on the 50-yard line after games, occasionally incorporating religious references into his post-game motivational talks, and participating in pre-game locker room prayer (this practice predated his time as the coach).^[191] At the district’s request, he ended all practices except his private prayer, where occasionally students or the other teams’ players would join him, but the school district fired him for this behavior.^[192] The school believed a reasonable observer would think it was an endorsement of religion.^[193]

Before reaching the Establishment Clause issue, the Court addressed the viability of a Free Speech and Exercise claim. Although these particular claims are not the focus of this Article, they are worth noting. First, the Court established that Coach Kennedy did in fact have a legitimate Free Exercise Claim, because the school district specifically burdened his religious practice in a way that was neither neutral nor generally applicable.^[194] The Free Speech claim required the Court to determine if the coach’s prayer was uttered while in his capacity as a coach, and therefore was government speech, or if it was private speech addressing a matter of public concern.^[195] Because the prayers were given after the games and the speech did not relate to his coaching obligations, the majority had no issue labeling this as private speech.^[196]

Finally reaching the Establishment Clause issue, the Court ruled the prayers were not a violation because there was no coercion involved in the prayer practice.^[197] Instead, in accordance with the Court’s findings mentioned above, they held that the school’s actions had violated Mr. Kennedy’s Free Speech and Exercise rights.^[198] The majority took great issue with the prospect of a citizens’ Free Speech and Exercise rights being found subordinate to the government’s interests in preventing an Establishment Clause violation.^[199] The opinion forcefully clarified, “the three clauses appear in the same sentence of the same amendment . . . A natural reading of that sentence would suggest the Clauses have ‘complementary’ purposes, not warring ones where one Clause is always sure to prevail over the others.”^[200]

Ridiculing the Ninth Circuit for relying on Lemon and not noticing its irrelevance, the Court lectured, “the ‘shortcomings’ associated with this ‘ambitious’, abstract, and ahistorical approach to the Establishment Clause became so ‘apparent’ that this Court long ago abandoned Lemon and its Endorsement test offshoot.”^[201] In its place, the Court instituted an official test of History and Tradition,^[202] the roots of which had been seen informally in cases like Marsh and Town of Greece for decades.^[203]

Only briefly explaining this new test, the Court stated, “the line that courts and governments must draw between the permissible and the impermissible has to accord with history and faithfully reflect the understanding of the Founding Fathers.”^[204] Pulling from an originalist perspective, the opinion references an analysis of original meaning being “the rule” not an “‘exception.’”^[205] Unfortunately, however, other than these statements, the case offers little instruction on how it foresees this test being applied.

Justice Gorsuch spent a great deal of time explaining that there was no coercion involved in the prayer practice at hand because the only religious activity Mr. Kennedy sought to continue was his private prayer, which he did not ask his players to join.^[206] Emphasis is placed on the fact that the record did not contain any complaints from parents or players regarding a feeling of coercion. In fact, for the three instances of prayer specifically in question, no students from Bremerton High School had even joined the prayer practice, making any arguments of coercion difficult to substantiate.[207] In light of the lack of evidence for coercion, the school district proposed that any religious activity by a government employee, regardless of if there was any coercion, should be considered a violation of the Establishment Clause as a matter of law.^[208] Such “phantom constitutional violations,” the Court held, were insufficient.[209] An actual legal coercion standard was alluded to, but not cemented.^[210]

VI.          THE NEXT FRONTIER

By eliminating the Lemon and Endorsement tests, the Court took a step towards bringing its jurisprudence closer in line with the force and fund tradition that defined the Establishment Clause at its inception. There is still, however, a great deal of work to be done to fully conform the jurisprudence to this standard. Kennedy v. Bremerton School District was likely only the first in a series of cases which will be needed to right and clarify the years of varying tests which left an incoherent string of precedents. The History and Tradition test, as annunciated by the Supreme Court, is not without flaws. Indeed, those flaws are already coming to the fore and will need judicial clarification. The answers to the questions regarding this new test will determine the outcomes of many cases across the myriad of  First Amendment topics discussed above. Specifically, such will likely be the case for the resolution of the circuit split on legislator-led prayer.

This following critique, however, is uttered with great caution and the warning that these comments should not be taken as criticism of the Kennedy case, or the progress being made in this area.

A. The Flaws of History and Tradition

As mentioned above, this new approach of History and Tradition, or rather the solidification of the supremacy of this approach, is much improved from the previous confusion of the Lemon test. It will help ensure much broader security and freedom for individuals specifically, along with greater respect for the Establishment Clause more generally.^[211] It may, unfortunately, be the case that such a test will not obtain this broader security with the desired uniform enforcement of religious liberty. Any instruction on the implementation of this test was scant.^[212] As Barnett and Solum stated, Kennedy’s “discussion of history and tradition is brief and cryptic.”^[213] This fact, in and of itself, begs for inconsistency to arise in lower court decisions.^[214]

Further, such a test will inevitably mean a case-by-case, historical assessment of potential Establishment Clause violations. Newer, but equally valuable practices may not be able to date themselves back to the founding era.^[215] This may, particularly, be the case for issues arising within public schools^[216] because public schools (as they are known today) did not even exist at the time of the founding.^[217] The Court gave no instruction as to what length or quality of history would be necessary for a practice to be constitutional.^[218] This may provide an easy escape route for judges unfriendly to the Establishment Clause, or even ones who simply misunderstand its purposes and origins.

There is, of course, the usual objection to any use of history which can also be made: judges and lawyers may conduct “law office” history.^[219] The argument goes that neither judges nor lawyers are trained historians and therefore when they conduct historical analyses, they are typically incomplete and selective.^[220] Although this argument can easily reduce to a cheap excuse for abandoning any historical analysis, it is relevant to the extent that it leaves the Court more vulnerable to accusations of impartiality or inadequate discussions of particular sources. History and Tradition in the context of Kennedy is, of course, being used in light of the larger originalist perspective of the Court for the purpose of discovering the original public meaning.^[221] In this sense, the essence of the historical uses are familiar.^[222] Until further guidelines can be issued, however, the loose references to history and tradition will likely bring greater subjectivity to the Establishment Clause than the Kennedy Court intended.

The above discussed issues can already be seen to some extent in Freedom from Religion Foundation, Inc. v. Mack, which was issued a mere three months after Kennedy. There, the Fifth Circuit held it was not a violation of the Establishment Clause for a judge to allow chaplains from a variety of different denominations and religions to pray before calling the court to order.^[223] Before each prayer, the bailiff read aloud instructions (which were also on a screen) that no one was required to participate in the invocation.^[224]

The court came to its conclusion by analyzing history, as directed by Kennedy, but in a worrisome manner. Rather than objectively observing history, the court broke the history into different categories based on the type of historical evidence, before weighing to see which categories of evidence had enough to “satisfy the legal standard.”^[225] The court also spent significant time determining which pieces of history have the most probative value.^[226] For example, when discussing evidence of similar practices at ceremonial openings of court sessions versus daily court sessions the majority stated, “prayers in the first category are less probative than they would be if they had occurred before daily court sessions.”^[227] The probative value of different historical practices is an inherently subjective standard, which will pose many difficulties for later application, begging the question, “how much history is needed to sustain a practice?” ^[228]

Another, and perhaps more pressing issue with the History and Tradition test, stems from the informality with which the Court addressed the coercion standard.^[229] The Court analyzes the two ends of the coercion spectrum, but left the rest to a lower court’s deduction skills.^[230] First, as discussed above, the Court thoroughly dispelled the notion that the particular practice at issue was coercive.^[231] The district’s admission that there was “no evidence that students have been directly coerced to pray with Kennedy” was relevant to the Court’s inquiry in this regard.^[232] Accordingly, the language of the opinion clearly leans towards an actual legal coercion standard, which would return the clause to its original force and funds meaning.^[233] The Court, however, refrains from officially drawing any hard lines.^[234] Second, and on the other end, the Court also renounced the types of “coercion” used in many of the cases discussed in Part IV.^[235] It clarified there was not an automatic Establishment Clause violation simply because the government does not censor religion in the public square.^[236] The majority, instead, singled out the example of forced church attendance saying, “coercion along these lines was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.”^[237] Hinting at the “invited chaos” and “minefield” of tests created by a living constitutionalist viewpoint, the Court noted, “the Establishment Clause does not include anything like a ‘modified heckler’s veto,’ in which religious activity can be proscribed based on ‘perceptions’ or ‘discomfort.’”^[238] Although, this is certainly an improvement, it still essentially leaves courts to choose a level of coercion somewhere between discomfort and actual legal coercion.^[239] So long as any ambiguity remains, judges will continue to create stricter rules based on perceived coercion.

1. Further Implications of the History and Tradition Test: Who can Pray:

As analyzed above, the question of legislator-led prayer still hangs in the balance.^[240] Any subsequent cases on the matter will now need to be decided within the framework of the History and Tradition test. Accordingly, the outcome of lower court case, and hopefully a Supreme Court case, will be dependent entirely on that the way history is analyzed, and the way coercion is defined.

Even if the Court were to resolve the issue of legislator-led prayer specifically, there is still a broader question which is being asked, and which will be equally dependent on the History and Tradition conclusions. Imagine a question is assigned to describe the issue involved in each of the legislative prayer cases. If the question in Marsh was “Can you pray?” to which the answer was yes, the question in Town of Greece was “What can you pray?.” This makes the question posed from Lund, and the question which still stands, “Who can pray?.” ^[241]

Example cases already exist in this context.  in Barker v. Conroy, a case addressed by the D.C. Circuit, an atheist wanted to give a secular invocation before the House of Representatives, but was denied.^[242] The court reasoned that because the House interpretation of their rules was that a prayer must be religious, and because Barker wished to give a secular prayer, the court could not order the relief, so therefore the claim was dismissed for failure to state a claim.^[243] Similarly, the Third Circuit in Fields v. Speaker of the Pennsylvania House of Representatives, a group of non-theists wished to give an invocation before the state legislature, but were denied because the legislature limited the practice to those who believed in a higher authority.^[244] The court found the limitation to theists was not a violation of the Establishment Clause, and because legislative prayer is government speech, Free Speech and Exercise claims could not be sustained either.^[245]

School boards have similarly broached the question of having prayer at their meetings. In American Humanist Association v. McCarty, the Fifth Circuit said that allowing students to give prayers at the start of a school board meeting did not violate the Establishment Clause, and was more similar to legislative prayer than school prayer.^[246]

Unfortunately, there are still not any current cases before the Supreme Court regarding “Who can pray?.” In 2017, the court denied certiorari in American Humanist Association v. McCarty, leaving the issue of school board prayer to the lower courts, in much the same way it had with Lund and Bormuth.^[247] Because of the potential flaws in the History and Tradition test, and the questions regarding who can pray, however, it seems prudent for the Supreme Court to grant certiorari on a case regarding these issues in the near future.

VII.        CONCLUSION

Establishment Clause jurisprudence has strayed far from its original roots, leaving a string of nonsensical decisions, on every topic, in its wake. Kennedy v. Bremerton School District can serve as the North Star, guiding courts back to a consistent standard of history and tradition, but it alone will not be sufficient. Courts should return to the original force and funds view of the framers by making actual legal coercion the cornerstone of Establishment Clause standards. This clear-cut standard would save the courts from subjectivity and help heal the fractured precedent, leaving room for reasonable and consistent application. If the Court returned to this perspective, “every acknowledgment of religion would not give rise to an Establishment Clause claim, [and] [c]ourts would not act as theological commissions, judging the meaning of religious matters.”^[248] Actual legal coercion could provide a predictable answer for most Establishment Clause cases, leaving individuals confident in their ability to enjoy religious liberty and freedom of conscience. The United States has been known for its freedom of religion, even when it includes a possibility of  religious strife. Courts cannot allow that practice to be stifled.