Last year, Texas passed a law requiring all public schools to conspicuously display the Ten Commandments — just the text with no commentary.
Of course, challengers immediately ran to court, crying foul and claiming that this requirement violated both the First Amendment’s Establishment and Free Exercise Clauses.
But after careful consideration, the Fifth Circuit Court of Appeals, in a masterful opinion by Judge Kyle Duncan, said that’s just not so.
Importantly, Judge Duncan’s opinion reaffirmed a fundamental principle we should already recognize. If a practice was not understood at the time of the Founding — by those who ratified the First Amendment — as a violation, then it should not be considered a violation today. Judges are not tasked with updating the Constitution to suit modern times — or they shouldn’t.
While this commonsense proposition seems straightforward, it hasn’t been for many years. In 1971, the U.S. Supreme Court issued its infamous Lemon v. Kurtzman opinion where it set forth a confusing three-part test to help courts determine whether the government had violated the Establishment Clause: Did the statute or action have a secular purpose? Did it primarily advance or inhibit religion? And did it result in “excessive government entanglement” with religion — whatever that means? Rather than providing clarity, this test quickly proved unworkable as lower federal courts struggled to consistently apply its prongs across cases.
And while the Supreme Court for far too long declined to overrule it explicitly, the Lemon test did lose favor among many justices. But because it continued to lurk among the Supreme Court’s case law, rearing its ugly head from time to time, Justice Scalia once described it as being like “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried …”
And it remained that way for almost 30 more years after Justice Scalia penned that line until the Court officially overruled Lemon and its progeny in Kennedy v. Bremerton School District.
So, with a stake through its heart, what comes after the dead-and-buried Lemon test?
The Fifth Circuit joined some of its sister circuits by agreeing that the Supreme Court now requires lower federal courts to ask whether those challenging a certain practice have “prov[en] a set of facts that would have historically been understood as an establishment of religion.”
Drawing heavily from the work of former federal judge and leading First Amendment scholar Michael McConnell, the Fifth Circuit said that for such an establishment to exist, approximately six “hallmarks” of “founding-era establishments” must be consulted. These include:
(1) government control over religious doctrine, governance, and church personnel; (2) compulsory church attendance; (3) compelled financial support, especially in the form of land grants and religious taxes; (4) prohibitions on worship in dissenting churches; (5) use of church institutions for civil functions; and (6) restriction of political participation to members of the established church.
As the court noted, none of those hallmarks are present here (even though some — including Professor McConnell — argue they could be, especially if circumstances shifted slightly). This historical analysis permits a more straightforward analytical pathway than previously available under Lemon. The malleability of that test and its flexible factors help explain why courts previously issued seemingly contradictory rulings, or held that Ten Commandments displays or Christmas crèches didn’t violate the First Amendment, only when surrounded by other secular displays too. That’s why some cities were forced to adopt the absurd and sacrilegious practice of flanking Baby Jesus with Frosty the Snowman or Snoopy, as though the latter are on equal footing with the former. Those types of requirements — which never should have existed — are no more.
Still, the challengers to this case argued that some post-Lemon cases that applied the Lemon test to various situations remained good law. But the Fifth Circuit correctly said that if “Plaintiffs’ view prevailed, [courts] would be applying Lemon’s dead letter far into the future.”
The Fifth Circuit also applied a similar framework to find that these passive displays did not violate the plaintiffs’ First Amendment Free Exercise rights either.
What’s clear from this case and others is that lower federal courts are starting to take seriously the requirement that courts should not impose their own policy preferences under the guise of interpreting the Constitution. Instead, they must interpret and apply the Constitution as it would have been understood at the time “We the People” adopted it. To accomplish that task, courts should — as the Fifth Circuit did here — look to history and tradition to guide their textual interpretations.
Courts have adopted that approach for Second Amendment cases — and now First Amendment ones too. And they should continue until they have adopted that correct approach for all constitutional cases.
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Zack Smith is a senior legal fellow and manager of the Supreme Court and Appellate Advocacy Program at The Heritage Foundation.
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