A Hollow History Test: Why Establishment Clause Cases Should Not Be Decided through Comparisons with Historical Practices

Some judges, scholars, and advocates have criticized the Supreme Court’s Establishment Clause jurisprudence, arguing that existing Establishment Clause tests give courts too little guidance and too much discretion, and calling on the Court to replace those tests with a test that compares challenged practices to long-standing historically accepted ones. But such a historical-practice test would be much more difficult to apply than the Court’s current jurisprudence and would engender greater confusion among lower courts than there is now. That’s because there are very few long-standing historical practices that are legitimate candidates for serving as evidence of the intent of the Establishment Clause’s framers. Only actions taken by the federal government can be relevant, because the Establishment Clause did not apply to the states when it was adopted. And only actions taken very close in time to the Clause’s adoption should be considered, because history repeatedly has shown that it takes little time after a constitutional provision is passed for governmental officials to start taking actions that violate it. Thus, in most Establishment Clause contexts, there are no federal-government actions during the relevant historical period that courts can legitimately consider for guidance. This does not mean that there should be no role for history in Establishment Clause analysis. But what is proper for courts to principally consider are the historical events that led to the Clause’s creation, not the events that occurred after the Clause was adopted. And the Supreme Court already engaged in such analysis in devising its existing Establishment Clause tests, looking at European and colonial history to understand what kinds of practices the First Amendment’s framers wanted to stop, as well as the writings of the leading thinkers behind the Establishment Clause, Madison and Jefferson. Already informed by history, the Supreme Court’s existing Establishment Clause tests well protect the values underlying the Clause, prohibiting (among other conduct) public funding of religious activity, governmental favoritism for any religion over another or for religion over nonreligion, governmental coercion to take part in religious exercise, and governmental entanglement with religion