Honorable mention: Law student essay contest — Ryan J. Shaner
FFRF awarded Ryan $500.
By Ryan J. Shaner
Sometime toward the end of his life, James Madison, the father of the Constitution and the principal author of the First Amendment, began to privately second-guess the decisions he made as one of the chief advocates of state/church separation during the formative years of the young American republic. Singularly concerned with state/church separation by his twilight years, Madison wrote in wistful contemplation about many of the decisions he made — and regretted — as a public servant earlier in his life, chief among those regrets being the establishment of the congressional chaplaincy, and his vote in support of that position. As evidenced by his writing in his “Detached Memoranda,” Madison later questioned whether “the appointment of chaplains” by the First Congress “was consistent with the Constitution”; ultimately, Madison acknowledged that the answer “must be in the negative. [For] [t]he Constitution of the U.S. forbids everything like an establishment of a national religion” and the “establishment of the chaplainship to Congress [was] a palpable violation . . . of constitutional principles.”
It is no coincidence that Madison’s self-reflection of his earlier missteps coincided with an American public that had come to wholly accept the notion that religion was to remain separate from the sphere of civil government. Though under no constitutional obligation to do so, every state in the union had disestablished their state-sponsored church by 1833; less than 20 years later, the National Congress denied statehood to the Provisional State of Deseret, in part because of a “lack of separation of church and state.”
Madison’s regret over the congressional chaplaincy and the disestablishment of religion on the state level are but two components of a larger history that gives context and meaning to the Establishment Clause of the First Amendment. Indeed, history has always been considered critical when interpreting the Establishment Clause, for, as one Supreme Court justice wrote, “[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history.”
Until the 1980s, the confines of the history utilized to understand and give meaning to the Establishment Clause was widely understood and virtually uncontested. This “traditional” reading of Establishment Clause history — understood through the writings of James Madison and Thomas Jefferson and the history that preceded ratification of the First Amendment — enabled the courts to have a cohesive frame of reference and bright-line standard of a “wall of separation between church and state.” This standard allowed for a uniform application of law, which routinely rebutted and declared unconstitutional numerous state church violations.
With the rise of the conservative Christian movement in the 1980s, however, the court’s understanding of the Establishment Clause — and, by necessity, the history the Supreme Court had come to rely on when interpreting the clause — had to be challenged to fulfill the movement’s ultimate goal of commingling religion and government. While this movement was successful in muddling Establishment Clause jurisprudence in the 1980s, the movement’s resurgence in the 2010s has been much more successful in producing judicial precedent that not only undermines Jefferson’s wall of separation, but simultaneously exalts Christianity to an exceptional position, allowing what would otherwise be violations of the Establishment Clause to withstand judicial scrutiny.
Undoubtedly, the first inklings of the so-called “history test” are apparent in Marsh v. Chambers, the 1983 Supreme Court case that dealt with legislative prayer. After the practice was found unconstitutional in both the district and appellate courts, the Marsh majority reversed and upheld the practice of legislative prayer. Marsh marked the end of coherent Establishment Clause jurisprudence.
Electing to abandon precedent and legal tests formulated over the preceding decades, the Marsh majority, instead, elected to rule in favor of legislative prayer based solely on “history and tradition.”
For decades, this new “test” articulated by the Marsh majority seemed but an aberration, and largely remained dormant. In 2014, however, the Supreme Court, in Town of Greece v. Galloway, once again revisited the subject of legislative prayer. Reversing the appellate court who found the practice unconstitutional, the Supreme Court held that sectarian Christian prayers given before legislative board meetings did “not fall outside the [historical] tradition this court has recognized.” Cognizant of the fact that Marsh seemed an irregularity, the Galloway majority took pains to profess that this newly refurbished history test “must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation.”
Despite their assurances to the contrary, however, the increasingly conservative court has done little to dissuade detractors who believe the court’s “history test” does little but warrant would-be violations in the name of “tradition.” Indeed, some of the most conservative justices themselves have articulated opinions that detract from the yearning legitimacy of the history test.
In likely the most literally visibly jarring Establishment Clause case to ever come before the Supreme Court, American Legion v. American Humanist Association concerned itself over the constitutionality of the Bladensburg Memorial, a 40-foot-tall Christian cross stationed on public land, maintained by the state, and in need of repairs that were to be allotted from public tax dollars. Replete with a majority opinion, a plurality, five concurrences, and a dissent, American Legion did little to legitimize and make intelligible a new Establishment Clause regime under the guise of history of tradition; indeed, the conservative plurality, writing that “longstanding monuments, symbols, and practices” are “presumpt[ively]” constitutional drew ire from their ideologically similar justices, with Justices Neil Gorsuch and Clarence Thomas questioning “where exactly in the Constitution . . . this presumption comes from,” noting that the conservative “plurality does not say, nor do[] [they] even explain what work its presumption does.” Likewise, Justice Stephen Breyer’s concurrence, in which Justice Elena Kagan joined, echoes Gorsuch’s doubts, with Breyer articulating that “if the [Bladensburg] cross had been erected only recently” the “case would be different,” further warning that American Legion did not presumptively sanction or “permit any newly constructed religious memorial[s] on public land.”
The presumptive constitutionality that long-standing religious monuments, symbols, mottos, displays and ceremonies now seemingly enjoy — by virtue only of their age and not any discernible legal principle — has diminished the dual foundational religious ideals of freedom of religion and freedom from religion, all to enrich one particular religious sect. By allowing county seals affixed with Christian imagery, four-story-tall Christian crosses on state property, Christian nativity scenes on government land, and other long-standing traditions steeped in Christian overtones to remain standing, the ramifications, if not the intent, of the new Establishment Clause test is to allow exclusively Christian practices and imagery to become intertwined with the state.
Moreover, while the Supreme Court’s new test ensures Christianity’s presence is allowed within the sphere of civil government, the test also necessarily excludes imagery and practices of minority religions from enjoying the same status. Though Jews, Deists and the irreligious have been present in the United States since before America won its independence, the fact that these groups have been denied any meaningful political power until the modern day ensures that there will be no long-standing monuments, imagery or practices associated with any non-Christian group on government property or in government practice.
From the very first case presented to the Supreme Court on the proper scope of the Establishment Clause, history has always been considered of the utmost importance in explaining and understanding what an “establishment of religion” fully entails. However, the new jurisprudential regime and the traditional Establishment Clause jurisprudence find guidance from two completely different understandings of history. The new history test looks not to the writings of Thomas Jefferson or James Madison, nor any discernible legal principle, nor, seemingly, even the Constitution itself, but, instead, defers to the practices, actions, and decisions of fleeting congressmen, local county board members and activist groups.
On the other hand, the traditional understanding of Establishment Clause interpretation utilized the historical events that preceded the ratification of the First Amendment, in conjunction with the writings of Jefferson and Madison, to be the controlling history when determining the scope of the Establishment Clause. Until the 1980s, the actions of the First Congress, for instance, paled in historical significance to the struggle for religious freedom the dissenting Christian sects in Virginia fought for; Jefferson’s Virginia Statute for Religious Freedom and Madison’s Memorial and Remonstrance more clearly defined what was acceptable under the First Amendment than an unchallenged long standing government practice or Christian monument on government land.
If we are to gain any insight from the saga of Madison’s vote on the congressional chaplainship, it is that even the best public servants, even those singularly devoted to a cause, can fail to uphold the demands of state/church separation. That is why it is the ideal of the Establishment Clause, most clearly illuminated in the history that preceded its ratification, and in the written works of Jefferson and Madison, that best represent the proper authoritative history in determining what constitutes an establishment of religion.
Ryan Shaner recently graduated and received his law degree from Chicago Kent College of Law. Previously, Ryan earned a master’s degree in history from Illinois State University. Currently studying for the bar exam, Ryan will resume working for a state prosecutor in the fall. Ryan recently became a father, and in his free time enjoys reading, swimming, and playing board games, card games and video games.
