The New Establishment Clause: The Risks of Elevating Historical Practices Above Legal Principles

• Author: Kent Sparks
• Position: Michigan State University College of Law
• Pages: 369-421

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2015 e Institute for Migrant Rights Press

369

Note. e author thanks Professor Frank S. Ravitch for his invaluable comments and

guidance in writing this article. is article was written as part of the Charles H. King

Scholar Honors Program at Michigan State University College of Law.

THE NEW ESTABLISHMENT CLAUSE

THE RISKS OF ELEVATING HISTORICAL PRACTICES ABOVE LEGAL

PRINCIPLES

KENT SPARKS

Michigan State University College of Law

E-mail: kentsparks1@gmail.com

While the United States was founded upon the notion of religious equality and

freedom, the United States Supreme Court recently took action that poses a

serious risk to preserving these foundational values. e Court had previously

taken dierent approaches to Establishment Clause inquiries, but has recently

announced a new Establishment Clause standard making practices necessarily

constitutional if they traditionally occurred at the time of the American Founding.

Indeed, the Court expressly made all other principle-based inquiries irrelevant

in cases involving religious historical practices—an unprecedented mandate that

fundamentally changes Establishment Clause jurisprudence.

Examining the true American history, replete with discriminatory practices

by the government against minority religions and instances in which the

Court recognized the limitations of historical practices in shaping modern

constitutional jurisprudence, exposes the dangers of the Court’s adherence to

history in shaping the modern Establishment Clause. Without correcting this

approach of unquestionably elevating historical practices beyond evaluation by

a principle-based inquiry, the meaning of Establishment Clause is subject to the

questionable religious historical p ractices that no longer reect modern American

values—denying the great progress that American society has achieved since

its Founding. e Court should employ a presumption of constitutionality if

the practice comports with a narrowly construed historical tradition that is

The Indonesian Journal of International & Comparative Law Volume II Issue 2 (2015) at 369–422

Kent Sparks

370

rebuttable by showing that the practice violates the Court’s principle-based

Establishment Clause test. is rebuttable presumption permits history to

continue playing a role, but it restricts its ability to unquestionably determine

modern Establishment Clause jurisprudence by subjecting the practice to an

independent principle- based inquiry.

Keywords: Separation of Church and State, Freedom of Religion, Constitutional

Interpretation, Freedom of Expression, Establishment Clause.

I. INTRODUCTION

Envision that it is Election Day and an eager voter waits in line to receive

a ballot. Prior to distributing ballots, however, the election ocer asks

those waiting in line to bow and join her in prayer. Facing those waiting

to vote, the election ocer pauses for the voters to bow and then proceeds

to pray, stating: “We pray this Election Day for the guidance of Your

Holy Spirit. We ask, oh Lord, that Jesus Christ provides these voters with

the strength and wisdom to elect God-fearing leaders. Amen.”1 At rst

blush, most would agree that this practice of advancing Christianity at the

hands of a government ocial violates the United States Constitution.2

Yet, after the United States Supreme Court’s decision in Town of Greece v.

Galloway, if prayers historically occurred at American polling places, then

this prayer practice—despite its clear advancement of a single religion to

citizens waiting to engage in their civic duty—is not only constitutional,

but also is beyond independent examination by any Court-employed Es-

tablishment Clause inquiry.3

1. is example is drawn from Justice Kagan’s dissent in Town of Greece v. Galloway,

134 S. Ct. 1811 (2014). See id. at 1843-44 (Kagan, J., dissenting).

2. See id.

3. See id. at 1819 (majority opinion) (“Any test the Court adopts must acknowledge

a practice that was accepted by the Framers and has withstood the critical scrutiny

of time and political change. . . . A test that would sweep away what has so long

been settled would create new controversy and begin anew the very divisions along

religious lines that the Establishment Clause seeks to prevent.” (internal citations

omitted)).

Kent Sparks

The New Establishment Clause: The Risks of Elevating Historical Practices Above Legal Principles

371

While the Court has taken diverging approaches to Establishment

Clause questions,4 Town of Greece marks a signicant shift in Establishment

Clause jurisprudence.5 e Court has employed a number of principle-

based inquiries, such as the Lemon,6 coercion,7 and endorsement8

tests, and has also relied sporadically on historical practices9 to decide

Establishment Clause questions. However, in Town of Greece, the Court

held that anytime that a relevant religious historical practice exists, the

Establishment Clause is not transgressed based solely on the existence of

that traditional practice.10 Indeed, the Court went so far as to expressly

make all other principle-based inquiries irrelevant when the case involves

a religious historical practices11—an unprecedented mandate that

fundamentally changes Establishment Clause jurisprudence moving

forward. While the Court created ad hoc two safeguards to applying this

4. See infra Section II.A, at 347-79 (discussing the evolution of Establishment Clause

jurisprudence).

5. e Establishment Clause, part of the First Amendment to the United States

Constitution, states: “Congress shall make no law respecting an establishment of

religion.” U.S. C. amend. I.

6. See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (“First, the statute must

have a secular legislative purpose; second, its principal or primary eect must

be one that neither advances nor inhibits religion; nally, the statute must not

foster ‘an excessive government entanglement with religion.’” (internal citations

omitted)).

7. See Cnty. of Allegheny v. ACLU, 492 U.S. 573, 659 (1989) (Kennedy, J., concurring

in judgment in part and dissenting in part) (stating that the “government may not

coerce anyone to support or participate in any religion or its exercise” (internal

citations omitted)).

8. See Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring)

(“[e] more direct infringement is government endorsement or disapproval of

religion. Endorsement sends a message to nonadherents that they are outsiders,

not full members of the political community, and an accompanying message to

adherents that they are insiders, favored members of the political community.

Disapproval sends the opposite message.” (internal citations omitted)).

9. See Marsh v. Chambers, 463 U.S. 783, 795 (1983) (“In light of the unambiguous

and unbroken history of more than 200 years, there can be no doubt that the

practice of opening legislative sessions with prayer has become part of the fabric of

our society.”).

10. See Town of Greece v. Galloway, 134 S. Ct. 1811, 1819 (2014).

11. See id.