Supreme Court nods to history and tradition again in religion case

Supreme Court nods to history and tradition again in religion case

The conservative majority on the United States Supreme Court makes clear in rulings on gun ownership, abortion rights and the line between church and state that it will weigh constitutional issues in depending on how they might have been decided in past centuries.

In a triumph of originalism — the interpretive theory most often associated with conservatism — the Supreme Court is increasingly focused on what the country’s founders thought constitutional protections meant.

While history and tradition have always been part of the court’s analysis when determining the limits of constitutional rights, that is now the exclusive mechanism, said Holly Hollman of the Baptist Joint Committee, a non-profit, faith-based organization focused on religious freedom.

“Killed and Buried”

The court‘s latest use of the method of history and tradition came on Monday in a case involving the separation of church and state.

The 6-3 decision in Kennedy v. Bremerton School District overturned a more than 50-year-old test to determine when the government has gotten too entangled in religion, pointing instead to history and tradition.

Judge Neil Gorsuch chastised the lower court for relying on his 1971 decision Lemon vs. Kurtzman to determine whether a high school football coach could be banned from praying on the field, writing “this Court has long since given up Lemon and its endorsement test offshoot.

The historical test “will bring much-needed clarity and consistency to an area of ​​the law that has been notoriously confused and inconsistent,” said Notre Dame Law School professor Richard Garnett, who filed an amicus brief supporting the coach.

But George Washington law professor Robert Tuttle warned against looking solely to history to provide answers to the most important questions of the day. The criterion of history and tradition is “entirely ambiguous” and is “easily manipulated by judges to favor their own agenda”.

Conservative justices have long criticized Lemon test, which sought to determine when a government has violated the separation of church and state. The test called on the courts to determine whether a “reasonable observer” would view government action as an endorsement of religion.

In 1993, Judge Antonin Scalia compared the test to “a ghoul in a late-night horror movie who repeatedly sits in his grave and moves abroad”, although he “has been killed and buried several times”.

On Monday, the court did not explicitly say it was voiding the test. Instead, he argued that the court had already done so by refusing to apply it in other religion cases.

The decision “finally made clear and explicit that the so-called Lemon testing is, and has long been, abandoned,” Garnett said. “Courts and litigants are no longer required to engage in abstract speculation about the possibility that official actions may cause hypothetical observers to perceive ‘endorsements’ of religion,” he added.

Lori Windham of the curator Becket Fund, noted that while some lower courts had already given up Lemongovernments and their lawyers still often relied on it.

Windham pointed to Gorsuch’s concurring opinion in Shurtleff v. Boston— decided earlier this quarter — in which he berated the city of Boston for relying on Lemon denying a Christian group the opportunity to fly its flag in front of City Hall. “It was such a risky and unhealthy strategy,” Gorsuch said.

That deal was a preview of Monday’s majority, Windham said.

“History and tradition”

“Instead of Lemon and the approval test, this Court has ordered that the Establishment Clause must be interpreted by reference to historical practices and understandings,” Gorsuch wrote in kennedy for the majority, which included the six conservatives of the court.

Dissenting, Judge Sonia Sotomayor criticized the majority for failing to provide guidance to lower courts considering the separation of church and state.

“The Court reserves any meaningful explanation of its test of history and tradition for another day, contenting itself for now with disguising it as established law and moving on,” Sotomayor wrote. She was joined by the court’s other two liberal justices.

Hollman of the Baptist Joint Committee, which filed a brief in support of the school in the kennedy case, said the historical approach can be applied selectively to achieve conservative results.

Highlighting the court’s 6-3 decision on June 24 to overturn the 1973 abortion rights precedent by Roe vs. WadeBen Jealous of the progressive People For the American Way said the conservative majority “is determined to invent new rules to get the answers the far-right majority wants on a case-by-case basis.”

What the historical approach will ultimately look like is still in question, said Asma Uddin of the nonprofit Freedom Forum, using Lemon as an example.

“The idea is that instead of asking whether a hypothetical reasonable observer might think that the government endorses religion, as the courts have had to ask under the Lemon and approval tests, courts may, instead, ask whether the challenged government action shares the characteristics of an establishment of ‘religion’ at the time of foundation,” Uddin said.

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