So what should the Court use to replace Lemon [v. Kurtzman]? At one point, Chief Justice Roberts discussed the amicus brief I filed on behalf of the Becket Fund, which argues that the Court should adopt a historical approach. Under this approach, the question is not whether the government is “endorsing,” “coercing,” or “proselytizing” in matters of religion. The question is whether the government’s actions share the characteristics of “an establishment of religion” at the time of the founding. After yesterday’s argument, I’m more convinced than ever that a historical approach offers the best way out of the Lemon mess.
Under a historical approach, the first question is what constituted “an establishment of religion” at the time of the founding. This is not a difficult question to answer, as nine of the thirteen colonies had an establishment. These establishments shared six characteristics: (1) government control over the doctrine and personnel of the established church; (2) mandatory attendance in the established church; (3) government financial support of the established church; (4) restrictions on worship in dissenting churches; (5) restrictions on political participation by dissenters; and (6) use of the established church to carry out civil functions. In applying this approach, the burden of proof is not on the government to show that the First Congress or the colonies engaged in the exact same practice. Rather, the burden is on the plaintiffs to show that the government’s conduct shares the historic characteristics of an establishment.
McConnell is a tip-top religion clause expert I’ve respected for many decades, and the “historic test” he endorses was offered to the court by the Becket Fund for Religious Liberty, my favorite religious liberty advocacy group. You may safely assume that I’m extremely inclined to prefer this historic test over the Lemon v. Kurtzman mess. Although public cross displays don’t rouse particular fervor in me, I’m hoping SCOTUS adopts it in the Maryland Cross case.