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Abstract

For many decades, the Establishment Clause had been a thorn in the Supreme Court’s side. Indeed, no other constitutional provision in recent memory has provided the Court with more trouble than the Establishment Clause. In its efforts to decide whether government conduct violated the Establishment Clause, the Court had applied no less than six tests. And as if that were not bad enough, many of these tests co-existed with one another, leaving government actors left to guess at their own peril which one controlled their fate.

But that officially changed when the Supreme Court decided Kennedy v. Bremerton School District in the summer of 2022. There, the Court made clear that the Establishment Clause would no longer be governed by a smorgasbord of rules, which formalized a departure that had begun several years before. Rather, the Clause would be governed by one test—history and tradition—which would end the Establishment Clause’s inescapable web.

This Article proposes an analytical framework for using history and tradition to decide Establishment Clause challenges. It is as follows. First, start with tradition. If there is a longstanding acceptance of the challenged practice, then the practice is constitutional. Second, if there is no longstanding acceptance of the practice, consider whether the practice fits (or is analogous to) an already established tradition. If it is, then the practice is presumed constitutional. Third, if there is no longstanding acceptance or historical analogue, then revert to the historical understanding of religious establishments. In other words, determine whether the challenged government practice falls within one of the six historical hallmarks of religious establishments. If it does not, then the practice is constitutional.

By leading with tradition, we can augment the historical analysis in two ways. First, when it exists, tradition can provide clearer answers on historical understanding. That is because tradition is formed from history—it encompasses concrete practices that reflect a people’s historical understanding of the Constitution. When courts interpret vague constitutional text, the traditions of our people are paramount because they allow constitutional interpretation to reflect the principles adhered to, over time, by the American people. Thus, when democratically accountable institutions act for many years on the basis of a particular understanding of constitutional principle, those actions can illuminate a general interpretation of the constitutional text. And these practical interpretations can, in turn, reveal a historical understanding of how the

+Counsel, The Becket Fund for Religious Liberty. The views in this Article are my own and do not necessarily reflect the views of the Becket Fund or its clients.

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Establishment Clause applies to a particular practice (even if they do not necessarily help interpret the Establishment Clause more broadly).

Second, tradition augments historical analysis because it enables judicial restraint. When the Court encounters a longstanding tradition, it does not have to determine the Establishment Clause’s outer bounds to answer the question presented, nor does it have to meddle with upheaving an established tradition. Because whatever else the Establishment Clause may mean in other contexts, it allows longstanding practices to continue without being laid on the examining table and scrutinized for their conformity to some abstract principle. A tradition- first approach therefore allows the Court to avoid interpreting the Constitution beyond what is necessary to resolve the case.

Even with its strengths, however, we must be clear: tradition cannot—and will not—resolve every Establishment Clause challenge. Indeed, it is common sense that not every practice of today was also a practice of yesterday. So even though tradition may provide clearer answers than history when compared side-by-side, tradition can still only take us so far. It is not, at the end of the day, a silver bullet for constitutional interpretation. And that is exactly why history remains a critical interpretive tool. Because although tradition has its advantages, there are some questions that only history can answer.

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