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Getting Back to Original Meaning

Francis Beckwith has provided a superb account of the evolution of the Lemon Test. I concur that it is an ahistorical and analytical evaluation that was applied within an”ad-hoc, counter-intuitive” manner. He is also correct that if justices had attempted to cure the ad-hoc difficulty by applying it rigorously, the evaluation would have institutionalized”both a government taste for secularism in addition to a hostility toward religion.”

Beckwith finds that the Lemon Test”is suspended in post-1947 Court comments and not to how the”establishment of religion” was commonly known if the First Amendment was ratified.”  I mostly agree, however, believe it important not to forget that a surprising range of justices have argued that the Establishment Clause must be interpreted in light of its”generating history” I concentrate only on some justices and cases within this brief essay, but that I provide a far more thorough overview elsewhere, which demonstrates that both conservative and liberal justices often made these claims. Remarkably, in select instances, even separationists such as Black and Brennan offer not-unreasonable accounts of what the Establishment Clause was originally understood to prohibit.  If those and other jurists had stuck with their inclination to Require the original public meaning (a phrase they didn’t use) of their First Amendment instead of cobble together an ahistorical analytical evaluation, much of the Court’s muddled Establishment Clause jurisprudence, particularly of the 1970s and 1980s, would have been avoided

All these evils comprised”attempts to force loyalty to whatever religious group happened to be at the top and in league with the government of a specific place and time.” In pursuit of these goals,

Men and women had been fined, cast in jail, cruelly tortured, and killed.

This list, such as the list of six specific things Black thought the Establishment Clause prohibits lent by Beckwith, is quite accurate. But his general purpose that the Establishment Clause was known to forbid the evils the founders associated with religious establishments is correct. 

Justices Black and Rutledge disagreed about the constitutionality of the country program challenged in Everson, but they both agreed that, in the latter’s words:

No provision of the Constitution is much more closely tied to or given content by its generating history compared to the religious clause of the First Amendment. It’s at once the elegant product and the terse summation of that history. 

Rutledge followed this passage having an extensive discussion of church-state battles in Virginia and a brief examination of the framing of the First Amendment.  To be sure, both Black and Black Rutledge overemphasized the influence of Thomas Jefferson and James Madison and inaccurately asserted that the Establishment Clause creates a”high and impregnable” wall of separation between state and church.  In doing this, they profoundly distorted the founders’ views. But if justices had stayed committed to the Establishment Clause in light of its initial public meaning, these erroneous historical assertions could have been adjusted. 

Drawing from a wide range of founding-era sources, Rehnquist concluded that there is”no historic foundation for the proposition that the Framers intended to build the’wall of separation’ that was constitutionalized in Everson.” Even as justices began crafting what became the Lemon Test, they didn’t entirely ignore history. Clark’s superficial and wildly incorrect historical statements about the founders’ views need not detain us. 

Of much greater attention is Justice William Brennan’s concurring opinion. After warning against relying upon”a overly literal quest for the Help of the founding fathers,” he provided a deep discussion of a Variety of founding-era records and Supreme Court cases before concluding that:

The line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers. It’s a line which the Court has consistently sought to mark in its decisions expounding the religious guarantees of the First Amendment. What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice.

Brennan also noticed that we now have”myriad Types of involvements of government with religion” that might not violate the Establishment Clause, for example:

Military/legislative chaplains and spiritual exemptions;spiritual exercises in human anatomy;non-devotional utilization of the Bible in public schools;Uniform tax exemptions together available to religious institutions;Spiritual considerations in public welfare systems;Activities with spiritual origins which have stopped to have spiritual meaning, such as the usage of”In God We Trust” on money, records, and buildings.  Brennan’s understanding of what the Establishment Clause prohibits and allows, as mentioned in this instance, is mainly correct.  Regrettably, in the 1980s that he repudiated relying upon the first meaning of the Treaty and turned rather into the Lemon Test to reach separationist conclusions. 

Moments of such as Religious Establishment?

Back in 1978, Alabama enacted a statute permitting teachers to”declare that a period of silence not to exceed 1 minute in duration shall be observed for meditation or voluntary prayer”  In Wallace v. Jaffree (1985), a vast majority of justices used the Lemon Test and found the practice for an unconstitutional establishment of religion. In his dissenting opinion, Justice William Rehnquist listed Lots of the conflicting results wrought by Lemon:

A State may give textbooks on American colonial history, but it might not give a movie on George Washington, or even a movie projector to display it in history class.  A State may give classroom workbooks, but might not lend workbooks in which the parochial school kids compose, thus rendering them nonreusable.  A State will pay for bus transportation to religious schools but might not pay for bus transport in the parochial school into the public zoo or natural history museum for a field trip…

Instead of relying upon a faulty evaluation that leads to absurd results, Rehnquist claimed that the Establishment Clause should be interpreted in light of the evils it was known to prevent. Drawing from a wide range of founding-era sources, he concluded that there is”no historic foundation for the proposition that the Framers intended to build the’wall of separation’ that was constitutionalized in Everson.” 

The Supreme Court Kills the Lemon Ghoul

In the 1980s, it became increasingly obvious that the Lemon Test was less than helpful (to put it kindly). It was sometimes dismissed, used inconsistently, and more than 1 justice tried to kill it. Anti-Lemon jurists might have succeeded in The American Legion v. American Humanist Association (2019), a case involving the constitutionality of the”gigantic Latin cross” erected to commemorate young guys from Bladensburg, Maryland who lost their lives in the First World War. A state agency eventually took over and maintains the cross, which the American Humanist Association thought violated the Establishment Clause.

Justice Alito, in a plurality opinion joined by Roberts, Breyer, and Kavanaugh, was highly critical of Lemon.  Justices Gorsuch and Thomas each wrote concurring opinions which makes it crystal clear that Lemon ought to go. Even though there isn’t any clear majority opinion saying that Lemon is officially overruled, it appears evident that it is at least, in the words of Justice Gorsuch,”shelved.” In her concurring opinion, Justice Kagan provided a tepid defense of Lemon’s”functions and effects” prongs, also Justice Ginsburg just dismissed the Lemon Test in her dissent. 

If Not Lemon, Then What?

Justices as diverse as Black, Rutledge, Brennan, and Rehnquist have argued that the Establishment Clause should be interpreted in light of its initial public meaning. Opponents of originalism frequently assert that it is difficult, if not impossible, to identify the original public meaning of constitutional provisions.  This might be true sometimes, but with respect to the Establishment Clause, it appears clear that it was initially known to forbid the evils associated with established churches.  And jurists as different as William Brennan, in Abington, and Michael McConnell, within a successful 2003 law review essay, concur that it was known to avoid a remarkably similar collection of practices.  In McConnell’s account, the Establishment Clause was originally understood to prohibit six categories of government action:

Government control on the doctrine and personnel of the established church;mandatory attendance in the established church;government fiscal support of the established church;limitations upon sin in dissenting churches;limitations on political involvement by dissenters;utilization of the established church to carry out civil acts.  Such findings are verified by recent article, including my own Did America Have a Religious Founding? And these nice works.

In case justices had faithfully translated the Establishment Clause in light of its initial public meaning, the absurd results that Rehnquist listed in his Wallace dissent would have been avoided.  And contemporary discussions which religious exemptions and religious monuments on public land somehow violate the Treaty would get little traction, at least one of the current Supreme Court justices. 

The Lemon ghoul had a long lifetime, but it might well now be lifeless.  Justices should ensure that it remains in a deep grave where it can rest in peace.