Untethered
Frank S. Ravitch March/April 2024The Supreme Court’s “History and Tradition” Approach to Religion Cases
The lines between religion and state are about to get even more chaotic.
With its June 2022 decision in Kennedy v. Bremerton School District, the Supreme Court overturned more than 50 years of precedent under the establishment clause (without acknowledging it was doing so) and replaced the longstanding legal tests under that clause with a “history and tradition” approach.
This article will address the many problems with the history and tradition approach the Court has now imposed on the establishment clause and on other areas of constitutional law. Not the least of these is that the Court’s apparent view of history and tradition bears little in common with the actual history and tradition of religion in public life in America, which was often coupled with widespread discrimination against religious outsiders.
Moreover, the history and tradition approach is much easier to manipulate than the legal tests it replaces. At best, it is an approach that serves to justify whatever a Court majority chooses to do. America’s record regarding religious history and traditions is hopelessly unclear. The Court through the years has produced remarkably conflicting evaluations of that record, both in support of strong separationism and, more recently, in support of the current Court’s anti-separationist stance. Thus, the Kennedy Court’s imposition of a history and tradition approach to establishment clause questions will leave school boards, other government entities, and lower courts in the impossible situation of acting as legal and socioreligious historians—a task at which the Court itself has utterly failed.
A Pliable History
Prior to the Kennedy decision a majority of the Court had applied the history and tradition approach only to cases involving legislative prayer or longstanding war memorials with a religious theme. In each of those cases the Court was careful to limit its use of history and tradition to the specific practice before it. Not so in Kennedy. History and tradition now appears to be “the” approach to establishment clause cases.
An obvious problem with this approach is that various justices and interpretive schools of legal thought have seized on particular narratives about history and tradition in the United States. Justices and scholars disagree with each other over the original understandings of the religion clauses and the religious history and traditions in the United States. Even leading legal historians have significant disagreements over these questions.
Since there is ample history and tradition to support almost any position a justice might take, this approach cannot be determinative. It serves only as a justification for the imposition of the majority justices’ biases and preconceptions. This becomes even more dangerous when history and tradition is relied on as “the” approach to interpreting the establishment clause.
In fact, for many years the Court had a strongly separationist understanding of history. For example, in Everson v. Board of Education, 330 U.S. 1 (1947) (funding for cost of busing to religious schools), and Engel v. Vitale, 370 U.S. 421 (1962) (school prayer), among others, the Court applied a highly separationist approach. In those cases, however, the Court never claimed that history is the only thing that should be considered when evaluating the establishment clause. In fact, in Abington School District v. Schempp, 374 U.S. 203 (1963), another school prayer case, Justice Tom C. Clark, writing for the majority, explained that separation protects religious pluralism and helps navigate the role of government vis-à-vis religion in an increasingly religiously diverse society. Thus, religious pluralism was a co-animating principle along with a separationist view of history, and the Court openly acknowledged this.
Under the current Court’s analysis, however, history and tradition is the only basis for deciding establishment clause claims. Therefore, under the current approach, the moment the Court picks a side in the history and tradition debates, it essentially determines the outcome of a case. Court majorities can justify opposing results and interpretations using their preferred understandings of history and tradition.
Yet history does not provide one clear answer to most questions under the religion clauses; it can support multiple positions. The history and tradition approach simply serves to make the “rule of five” the most important rule in constitutional interpretation: you need five justices to win a case before the U.S. Supreme Court.
It is perhaps unsurprising that the Court in Kennedy failed to recognize the case’s own “history”—the facts that had already been established in the lower courts. Kennedy, an assistant high school football coach, had a practice of going to the 50-yard line to pray after games, often doing so out loud and delivering religious pep talks while holding helmets from both teams in the game. When the school district informed Kennedy that they had received complaints from parents of players, and requested him to pray after his coaching duties were finished for the day, Kennedy contacted the media. His after-game prayers soon became a spectacle, with members of the crowd running down to the field after a game, trampling band members and cheerleaders, and prompting the school to require security at future games. Yet in reading the majority opinion, you would never know these were the facts before the Court. The dissenting opinion, however, clearly explains these facts and brings the receipts, so to speak, by including pictures of Coach Kennedy’s after-game conduct.
A Checkered Past
Applying a more focused look at history and tradition to the facts in Kennedy, one might cynically wonder whether Thomas Jefferson or Henry Clay had a linebackers coach, and whether that coach prayed at the nonexistent public high school football games at the almost-nonexistent public schools of their times. Or whether Ulysses S. Grant or Teddy Roosevelt experienced the same. Of course, we know that neither football nor public schools existed in most of the country for much of United States history. It is apparent, as explained below, that in many parts of the country there was no history or tradition of Coach Kennedy’s type of highly sectarian prayer and media spectacle. The historical record actually suggests, ironically, that some of the American founders, and many others throughout our nation’s history, would have viewed Kennedy’s behavior as buffoonery or sacrilegious.
Instead, if we focus on the era in which public schools and public school football teams have thrived in the United States, the history and tradition recognized by the courts of that time pointed in a much more separationist direction. In the school districts that violated the law that grew out of this more separationist history, discrimination against religious minorities and dissenters was widespread. This was true in the era before the modern public schools, when anti-Catholicism thrived, and it often remains true today.
In fact, sadly, one of the most widespread “traditions” in the history of America’s educational institutions was discrimination against Catholics, and nowhere was this clearer than in the early common schools that preceded the modern public schools. Moreover, discriminatory practices in the public schools were common throughout much of the history of the United States. Policies requiring schoolchildren to read the Bible without commentary were originally directly aimed at Catholics, although prayer and Bible reading practices also led to discrimination against Jews, Unitarians, atheists, and others.
This is part of a much stronger anti-Catholic history that is much clearer than the cherrypicked version of history apparently preferred by the current Court, or even the separationist history preferred by earlier Courts. Anti-Catholicism was just one of the discriminatory practices rife in American history, which has also included discrimination against Seventh-day Adventists, Jews, members of the Church of Jesus Christ of Latter-day Saints, and, more recently, Muslims. It has also included the persecution of various other minority Christian denominations, atheists, and, of course, the overwhelming persecution and intentional destruction of Native American religious practices.
If we are going to use “history and tradition,” what should we do about these clear historical and traditional practices? It is not enough to simply say that the laws were not neutral in these situations—first, because the laws were sometimes framed neutrally, and second, given the discriminatory nature of these historical and traditional practices, the concept of neutrality itself can be called into question as a historical matter.
Danger Signs Ahead
In the Kennedy case Coach Kennedy’s practices could easily be discriminatory to nonconforming players on his team or the other team. This should serve as a warning call. The well-documented rise in Christian nationalism in America has facilitated practices that discriminate against religious outgroups and the nonreligious, and these practices are likely to increase. The history and tradition test can be used by willing officials and judges to support these practices.
Consider, also, that the Court’s precedent of using history and tradition is widely varied. From 1947 to at least 2000 a more separationist history and tradition was often cited, but the Court never held history and tradition was “the” test for establishment clause cases. From 2000 until 2021 the Court took a strongly contextual approach, applying the endorsement, Lemon, and indirect coercion approaches in some contexts, and something akin to the history and tradition approach in legislative prayer and limited symbolism contexts. Yet the Kennedy Court does not address cases such as Everson and Engel, which looked to separationist history and tradition. This is part of the Kennedy majority’s intellectual shell game with which lower courts must now contend.
There is an obvious irony contained in the current Court’s free exercise antidiscrimination doctrine, to the extent that it is also based on a history and tradition approach. The history and tradition of religion in the United States provides more support for religious discrimination than it does for the prohibition of it. What is to prevent a future Court from using history and tradition to find that all protections for religions that discriminate on a variety of statuses are inconsistent with history and tradition, and therefore these religions should not be entitled to free exercise protection?
The Roman Catholic Church and Protestant churches that have today evolved into evangelical churches, for instance, were historically discriminated against. Today, these faiths are often more likely to have views on LGBTQ rights and the role of women that diverge from the more progressive views that are on the rise, especially among younger people. What is to keep a future Court from using the history and tradition of discrimination against Catholics and the predecessors of today’s evangelicals against the very social conservatives who are likely to benefit from history and tradition under the current Court? Arguing that this won’t ever happen is circular; 20 years ago most people would not have predicted what the current Court has done regarding the religion clauses, abortion, and gun control/federalism. The point is simple: once you make history and tradition “the” approach, you unleash the vagaries of that history and tradition and allow future Courts to reconceptualize that history and tradition.
Conclusion
As the current Supreme Court has shown, justices are rarely good historians, and experts can be called by both sides to show conflicting history and traditions. Now, on a regular basis, that task will befall local officials and lower court judges facing establishment clause questions. How can local officials and their lawyers predict what a given court will do other than by trying to guess the judge’s or justices’ preconceptions? Not exactly a stable jurisprudence. And, of course, what is to keep local and state officials from doing all manner of things that, in prior years, would have been clearly unconstitutional? Consider the recent Louisiana and Texas “In G-d We Trust” laws and the Texas school chaplaincy law. These are just the tip of the iceberg.
In the end, history and tradition is no more decisive in the establishment clause context than the tests the Kennedy Court overturns. It is an approach that serves simply as a cover or justification for whatever a given Court majority’s preconceptions are about the role of religion vis-à-vis government.
Article Author: Frank S. Ravitch
Frank S. Ravitch is professor of law and Walter H. Stowers chair of Law and Religion, Michigan State University. He is the author of numerous books, law review articles, essays, book reviews, and book chapters, as well as amicus briefs to the U.S. Supreme Court. This article first appeared in The Conversation.