Published by the Freedom From Religion Foundation, Inc. FFRF.org

First place: Law student essay contest — Ty Jameson

Vol. 38 No. 06 August 2021
Ty Jameson                                                                                                                                                                                                                                                                                                                               

FFRF awarded Ty $4,000.

By Ty Jameson 

The First Amendment to the United States Constitution states that “Congress shall make no law respecting an establishment of religion.” Known as the Establishment Clause, this constitutional provision “mandates governmental neutrality between religion and religion, and between religion and nonreligion.” 

Supreme Court Justice William Douglas once wrote that the Establishment Clause is meant to “promote a viable, pluralistic society.” However, a new method of interpreting the Establishment Clause “by reference to historical practices and understandings” is severely diminishing this constitutional protection and has the potential to effectively erase the Establishment Clause from our nation’s founding document.  

This new “history test” presents several problems as a method of interpreting the Establishment Clause. The history test’s vague direction to refer to “historical practices and understandings” provides little guidance to judges when analyzing an Establishment Clause case. Importantly, the history test “does not make clear what history [judges] should consider.” Thus, the history test allows judges to engage in selective historical analyses, reaching back to any point in our nation’s 240-year-plus history to consider fragmented — and even irrelevant — history when analyzing an Establishment Clause claim.  

Take, for example, a case where the 8th Circuit Court of Appeals used the history test to hold that placing the motto “In God We Trust” on national currency does not violate the Establishment Clause. The “history” the Eighth Circuit referenced included an “unbroken history of official acknowledgement . . . of the role of religion in American life from at least 1789” and that “the Founding Fathers believed devotedly that there was a God.” 

Neither of these two assertions answer whether placing “In God We Trust” on currency violates the Establishment Clause. As to the first assertion, an official acknowledgment of the role of religion in American life is far different from placing a motto that endorses belief of, and trust in, a monotheistic god on national currency — something all citizens regularly see and use. As to the second assertion, assuming, arguendo, that all the Founding Fathers believed in a god, this sheds no light on what the Founding Fathers believed to be the proper relationship between religion and government. 

To be sure, history is not totally irrelevant to interpreting the Constitution. Courts often invoke history to examine how the Founders envisioned a constitutional provision would apply and to identify the overarching purposes a constitutional provision is meant to serve. In engaging in this type of historical analysis with respect to the Establishment Clause, the Supreme Court has previously examined  colonial history that led to the inclusion of the Establishment Clause in the Constitution and has noted how Thomas Jefferson wrote that the Establishment Clause was intended to erect “a wall of separation between church and state.” The Supreme Court has also repeatedly mentioned how James Madison, “the leading architect of the religion clauses,” wrote a memorial and remonstrance opposing a tax to fund preachers and providing several arguments against government support of religions. Highlighting the history test’s potential for selective historical analysis, the 8th Circuit failed to consider any of this history when it upheld the use of “In God We Trust” on national currency. 

Prior tests

To fully appreciate the implications of this new history test, it is important to pause and take note of prior Establishment Clause tests that the history test replaces. For the past several decades, courts have analyzed Establishment Clause cases by examining the purpose and effect of the government conduct at issue and by asking whether the conduct endorses or coerces religion. These prior tests provide far more guidance to judges when deciding Establishment Clause cases than does the history test. These prior tests also help judges reach outcomes that “promote a viable, pluralistic society” and fulfill the clause’s mandate of “government neutrality” with respect to religion. 

A recent case where FFRF assisted the plaintiff in challenging the constitutionality of a nativity scene outside of a county courthouse demonstrates the difference between the prior Establishment Clause tests and the new history test. The district court ruled that the nativity scene violated the Establishment Clause using the prior tests of examining the purpose of placing a nativity scene outside of the county courthouse and whether it endorses or coerces religion. In so doing, the district court noted that the “evidence in the record indicates that the county’s purpose in displaying the nativity scene was religious” and that the nativity scene “would give a reasonable observer the impression that the government is endorsing a religion.” 

However, on appeal, the 7th Circuit Court of Appeals reversed, using the history test to hold that the nativity scene does not violate the Establishment Clause. Rather than taking a careful look at the purpose and effect of the nativity scene at issue in the present case, the appellate court merely referenced a “long national tradition of using the nativity scene in broader holiday displays.” Like the 8th Circuit’s analysis of “In God We Trust” on national currency, the appellate court here failed to mention any history that led to the inclusion of the Establishment Clause in the Constitution or how Thomas Jefferson and James Madison interpreted the provision. 

Another troubling aspect of the appellate court’s decision is that the court used the history of other nativity scenes on government property to hold that the nativity scene at issue did not violate the Establishment Clause, rather than considering that perhaps all those other nativity scenes violate the Establishment Clause. This notion that we are bound by prior history — rather than examining the constitutionality of such prior history — impedes progress toward the “viable, pluralistic society” mentioned by Justice Douglas and is direct contrast to the use of history in other areas of constitutional law.  

Imagine if a similar history test applied to the interpretation of the 14th Amendment’s guarantee of “equal protection of the laws.” It would be deeply troubling if courts evaluating claims of racial or sexual-orientation discrimination could point to our nation’s history of discrimination, even after the passage of the 14th Amendment, to hold that such discrimination does not violate the Equal Protection Clause. Thankfully, such a history test does not apply to the Fourteenth Amendment.  

History and tradition

Rather, the Supreme Court has noted that history and tradition do not set the outer boundaries of constitutional interpretation and that we must be able to learn from our nation’s history “without allowing the past alone to rule the present.” Constitutional interpretation must recognize “that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.” Similarly, interpretation of the Establishment Clause must recognize our nation’s history of dominant religious groups using the power of government to promote their faiths and impose them upon others, while allowing us to learn from that history rather than being bound by it. 

If use of this new history continues, the fate of the Establishment Clause is clear — courts will repeatedly use the history test to abandon the Establishment Clause’s principles and protections. In addition to the cases already mentioned, the First Circuit recently used the history test to hold that the inclusion of the phrase “so help me God” at the end of the oath of allegiance administered at naturalization ceremonies does not violate the Establishment Clause because of a “longstanding” history of similar words as a means of completing an oath. 

Additionally, in FFRF’s lawsuit against a Pennsylvania county, the Third Circuit used the history test to hold that a county seal containing a Latin cross did not violate the Establishment Clause because it fit “within a long tradition of state and municipal seals and flags throughout our Republic that include religious symbols or mottos.” After reading these opinions, one wonders whether any government conduct will be held to violate the Establishment Clause under this new history test.  

The emergence of the history test is particularly troublesome considering Christian nationalists’ recent efforts to use the force of government to inject Christianity into society, and in particular, public schools. For example, several states — including Florida, Arkansas, Tennessee, and Utah — have passed laws that require displays of the motto “In God We Trust” in public schools. Religious indoctrination has no place in public schools and challenging these types of laws will be particularly difficult if courts can reference vague, incomplete and irrelevant history to ignore the true purposes of the Establishment Clause. Thankfully, not all courts are using the new history test to analyze Establishment Clause cases, instead using the prior tests. The Supreme Court has so far only used the history test when analyzing cases involving prayers before legislative meetings. The lower courts applying the history test to other contexts have misread those cases as setting forth a broad new test that abandons the prior Establishment Clause tests. For the sake of separation of religion and government, this trend must not continue. If it does, we may soon find that the Establishment Clause, for all intents and purposes, has been erased from the Constitution.

Ty Jameson attends the Wake Forest School of Law. “My interests in advocating for secular causes largely originated while learning about the First Amendment’s religion clauses at college in Utah,” Ty writes. “This interest ultimately led me to spend a summer as a law clerk with American Atheists. At school, I serve on the editorial board of the Wake Forest Journal of Law and Policy. I recently wrote an article on Article III standing to challenge political and religious displays that will be published in a forthcoming edition of the Journal. This summer, I am interning at the U.S. Department of Justice, in an office that enforces various civil rights laws.”