The answer to confusion over the Establishment Clause is an originalist understanding of the Constitution. This approach includes analyzing historical practices at the time of the founding and the ratification of the First Amendment. The Court has increasingly incorporated this reasoning in its decisions.
The benefit of an originalist understanding is, as one scholar notes, that “the judge tries to discover not what the text ought to mean but what it did mean to those who wrote the words and, more importantly, to those who voted for those words to become law.”
When we apply this reasoning, we find that government actions involving religious displays or practices are often constitutional. As one court of appeals judge observed, “There is, put simply, lots of history underlying the practice of placing and maintaining crosses on public land . . .” Though the judge spoke of crosses, a court applying a historical interpretation of the Establishment Clause would likely uphold displays inspired by minority religions, too.
Some argue that this would introduce a “narrower standard.” This is a problem because focusing “only on coercion would open the door to sectarian endorsements that will aggravate religious tensions and needlessly divide Americans.”
But an originalist approach sets clearer boundaries for which religious displays or practices are acceptable. This is fairer and more predictable than current law. It is difficult to say exactly how many more religious displays would be considered acceptable under an originalist interpretation, if applied consistently. But recent cases indicate that principled boundaries would be no less helpful to religious minorities than to members of majority faiths.
In Town of Greece v. Galloway (2014), in which the Court adopted an original understanding of the Establishment Clause with respect to legislative prayer, the Court said it was “virtually inconceivable that the First Congress, having appointed chaplains whose responsibilities prominently included the delivery of prayers at the beginning of each daily session, thought that this practice was inconsistent with the Establishment Clause.” As American society has grown more religiously diverse, figures including the Dalai Lama, Rabbi Joshua Gruenberg, Satguru Bodhinatha Veylanswami, and Imam Nayyar Imam have opened legislative sessions with statements expressly declaring their deeply held religious beliefs. As the Court said, Congress “acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds.”
Under Lemon and succeeding tests, courts often proscribe government support of an action or display simply because it is sectarian. But the purpose of the First Amendment was never to eviscerate religion from the public square. An originalist interpretation is the right approach to Establishment Clause challenges.
Applying an originalist approach likely means that the courts will have less say over whether a religious display can appear on public property. But this is an appropriate allocation of power, and our next post explains why.
This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”