These days, the Supreme Court presents itself as faithfully following the law, while it does pretty much whatever it wants. For example, it invokes tradition as a constraint on its discretion, while manipulating its meaning to avoid enforcing constitutional provisions it doesn’t like — such as the Establishment Clause.
In Kennedy v. Bremerton, the Court recently overruled the prevailing rule implementing the clause, a rule that forbade the state from endorsing any religion. It replaced that rule with a test so vague that nothing can confidently be said to violate it: “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” There must be “analysis focused on original meaning and history.” The law must “accord with history and faithfully reflect the understanding of the Founding Fathers.” None of this gives any lower court any guidance as to how to decide any case.
The Court drew this language from an earlier decision, Town of Greece v. Galloway, that upheld a practice of opening town board meetings with a prayer — prayers that, as it happened, were almost always Christian. It cited history as a reason for upholding legislative prayer. Now the Court has expanded that approach to every Establishment Clause case.
The trouble is that the whole point of certain provisions of the Constitution is to end some tradition. The13th Amendment abolished slavery. The 14th prohibited the subjugation of the former slaves. The Establishment Clause rejected a long tradition of official religion. For each of these provisions, history matters, but not in the way that the Court thinks. One must understand the historical wrong to discern the scope of the prohibition.
It is perverse to invoke tradition to defend the very practices that a constitutional provision aims to invalidate. When the Court decided Brown v. Board of Education, there was a longstanding tradition of racial segregation. That tradition was an instance of what the 14th Amendment prohibits.
Any provision that aims to attack deeply entrenched wrongs of the past, particularly wrongs with powerful beneficiaries, predictably will not be instantly effective. The toxic tradition it aims to end will persist, sometimes for decades, in the teeth of the prohibition. That persistence is then offered as a reason to defeat the operation of the constitutional text. Abortion is another illustration. Consider the Court’s casual dismissal in Dobbs v. Women’s Health of the sex equality claim, citing the fact that all-male legislatures in the 19th century didn’t mind forcing women to have babies.
The Court’s core interpretive claim in Kennedy is that whatever the Establishment Clause means, it cannot ban a practice of which the framers knew and approved. Conservative judges have been drawn to this approach to the Establishment Clause since the 1980s, when it was pressed by Chief Justice William Rehnquist and Justice Antonin Scalia. The argument is essentially, “I have no idea what this provision means. But whatever it means, it can’t prohibit this, because the framers approved of it.”
More than a decade ago, I suggested that scholars ought to classify this move as “I Have No Idea Originalism.” It’s not really an interpretation, because it has no core of meaning at all. I was making fun of Rehnquist and Scalia, whose approach I thought was too silly to take seriously.
Yet that is what the Court has now done with the Establishment Clause. It essentially reads that provision out of the Constitution altogether. The Court in Kennedy does say that the Establishment Clause prohibits coerced prayer. But such coercion already violates the provision guaranteeing the “free exercise of religion,” leaving no work for the Establishment Clause to do.
The Kennedy Court also makes coercion nearly impossible to prove. That case involved a football coach who insisted on “allowing” students to join him in prayer — students who knew that he had absolute discretion to decide how much playing time they would get, playing time that was indispensable if they were to have a shot at college football scholarships. The Court points to no “record evidence that students felt pressured to participate in these prayers.” It demands testimony in open court from students courageous enough to face retaliation in their communities. Families who complain about establishment clause violations already face stigma, loss of jobs and even violence.
The perversity of this tradition-based approach was already apparent in Town of Greece v. Galloway. Legislative prayer requires continuing decisions by authorities about what kinds of prayers are permissible and which religions get to participate — precisely the kind of selective approval of state-preferred religions that the establishment clause aimed to prohibit.
The Court’s conservatives like to parade their virtue as faithful adherents to the original meaning of the Constitution. Yet they have now nullified a provision that they happen not to like. The rule is steadily becoming more apparent – religion always wins – but it has nothing to do with the Constitution.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press). Follow him on Twitter @AndrewKoppelman.