//  9/12/19  //  In-Depth Analysis

This post is authored by Kate Huddleston, a civil rights attorney in Houston, Texas.

After the deluge of last term’s June Supreme Court decisions (and subsequent fallout), American Legion v. American Humanist Association deserves revisiting.  In that case, the Court held that the display of a thirty-two-foot-tall granite cross as a memorial to World War I, on public land (a traffic circle) in Bladensburg, Maryland, does not violate the Establishment Clause.  Commentators have unpacked how the majority opinion’s description of the Bladensburg cross’s history ignores the historical context of early-twentieth-century American Christian nationalism related to the cross’s construction.

But another, less-discussed aspect of the decision is similarly troubling. The opinions written by Justices Alito and Gorsuch recharacterize the history of Establishment Clause jurisprudence, centering the previously obscure legislative-prayer cases and describing them as the dominant mode of Establishment Clause analysis. In doing so, they shift the Supreme Court’s decisions permitting prayer before state legislative sessions and town council meetings from the periphery of Establishment Clause jurisprudence to the core—seemingly allowing the exception for longstanding historical practice to swallow the rule by claiming that the exception has always been the rule. This development is troubling in its implications for both Establishment Clause jurisprudence and—more broadly—the Court’s treatment of precedent, especially in areas that have historically involved some doctrinal compromises. 

Before American Legion: Legislative Prayer Precedent as Exceptional

Before American Legion, the Court’s approach to analyzing the constitutionality of prayer at legislative sessions was exceptional—essentially, one weird trick for Establishment Clause jurisprudence. In Marsh v. Chambers, decided in 1983, the Court held that prayer at the start of Nebraska legislative sessions was constitutionally permissible, because these invocations fell within a tradition of “legislative prayer” dating back to the First Congress. Marsh emphasized that the First Congress had passed both the Bill of Rights and a provision appointing chaplains for the House and Senate in the same week. The Marsh majority opinion, joined by six justices, explained that it was therefore evident that the First Congress saw “no real threat to the Establishment Clause” from legislative prayer. And there was also, the majority said, an “unambiguous and unbroken history” of prayer before legislative sessions over two centuries. Because of this clear contemporaneous understanding and uninterrupted history, the practice was “a tolerable acknowledgment of beliefs widely held.”

Thirty-one years later, in the 2014 decision Town of Greece v. Galloway, the Court held that prayer at the start of town council meetings in Greece, New York, was also within the “legislative prayer” tradition identified in Marsh and therefore consistent with the Establishment Clause. Justice Kennedy wrote for a majority that “Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.”

Marsh and Greece are the Supreme Court’s only legislative-prayer cases, and, importantly, both noted that their approach was unusual for Establishment Clause analysis.  Marsh explained its decision was based on the “unique history” of Congress’s near-simultaneous adoption of the Establishment Clause and legislative prayer. Greece observed that “Marsh is sometimes described as ‘carving out an exception’ to the Court’s Establishment Clause jurisprudence,” since it did not apply “any of the formal tests that have traditionally structured this inquiry.”

Until the Bladensburg Cross case, the Court had never described these cases as representative of Establishment Clause jurisprudence. It had previously referred to Marsh’s emphasis on history, most notably in Lynch v. Donnelly, which permitted a city to display a crèche among other Christmas decorations. Lynch was decided one year after Marsh, and it relied on Marsh to highlight the importance of the Framers’ understanding to Establishment Clause analysis. (It also repeatedly observed that the prayers in Marsh were overtly religious yet still within Establishment Clause bounds.) Five years after Lynch, though, the Court held that a different crèche display violated the Establishment Clause and emphasized that Marsh did not mean “that all accepted practices 200 years old and their equivalents are constitutional today.” Marsh’s focus on history popped back up in Chief Justice Rehnquist’s plurality opinion for four justices in Van Orden v. Perry, a 2005 case that held that a Ten Commandments monument at the Texas state capitol did not violate the Establishment Clause. But Justice Breyer’s influential concurring opinion in that case relied on Marsh only for the points that Establishment Clause jurisprudence lacks doctrinal clarity and permits some governmental reference to religion. And neither Lynch nor the Rehnquist Van Orden opinion adopted the Marsh-style approach of identifying a historical tradition and determining whether the practice at issue fit within it. Rather, they cited Marsh (among other cases) for the broad proposition that historical understandings matter in Establishment Clause analysis.

In fact, the Court did not even rely on Marsh or engage in its analysis of historical tradition in two post-Marsh cases evaluating other prayer practices. The 1992 case Lee v. Weisman held that the Establishment Clause barred prayer at a high school graduation. Eight years later, Santa Fe Independent School District v. Doe held the same for student-led prayer before high school football games. Neither majority opinion focused on how the First Congress would have viewed prayer at public high school events (perhaps for obvious reasons, since the Supreme Court held that the Establishment Clause applied to the states only in 1947 and since there was essentially no public education in the late 1790s). Nor did either look to the history of prayer in school settings more broadly, as Marsh had for prayer at legislative sessions. Instead, the opinions relied on more conventional Establishment Clause doctrine—asking whether the prayers functioned to coerce religious activity and, in Santa Fe, whether the school adopted its pre-game student prayer policy with the impermissible purpose of sponsoring a religious message.

So, for decades legislative-prayer analysis remained more or less an Establishment Clause backwater. Recently, legislative-prayer precedent came up in a series of cases regarding prayer at the start of public school board meetings, which reached the Third, Fifth, Sixth, and Ninth Circuits. The Third, Sixth, and Ninth Circuits each found legislative prayer inapposite and enjoined the school-board practice. The Fifth Circuit, the only one to find such prayer constitutionally permissible, described school-board prayer as (after Greece) within “the recently reaffirmed legislative-prayer exception to the Supreme Court’s Establishment Clause jurisprudence”—still viewing the analysis in Marsh and Greece as, well, exceptional.

Justice Alito’s and Justice Gorsuch’s American Legion Opinions: Legislative Prayer’s Historical Approach as the Core of Establishment Clause Analysis

Marsh-Greece remained exceptional until the Bladensburg Cross decision. Opinions joined by six justices in American Legion stunningly depict Marsh and Greece as, all along, the heart of modern Establishment Clause jurisprudence. Parts II-A and II-D of Justice Alito’s opinion, joined by Chief Justice Roberts and Justices Breyer and Kavanaugh, and Justice Gorsuch’s concurrence in the judgment, joined by Justice Thomas, both describe Marsh and Greece as representative of dominant Establishment Clause analysis. (American Legion is deeply muddled, with seven separate opinions.) Both of these opinions describe the Marsh-Greece analysis as the core of Establishment Clause jurisprudence and shift the long-used and long-debated test from Lemon v. Kurtzman to (at best) the periphery. In effectuating this swap, the Alito and Gorsuch opinions inaccurately recharacterize Marsh and Greece as exemplars of a supposed ordinary approach to the Establishment Clause centered on history and tradition.

Justice Alito’s plurality opinion states that after Lemon, “in later cases, we have taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance. Our cases involving prayer before a legislative session are an example.” It then describes Marsh and Greece.

But that’s just not true. As described above, Marsh and Greece have long been viewed as outliers. The cases evaluating prayers in high school settings—perhaps the closest analogues to Marsh and Greece, in their focus on prayer practices at government-sponsored events—did not take historical tradition as their starting point. And other post-Marsh Establishment Clause decisions do not adopt Marsh’s historical approach. As one example, in the 2005 decision McCreary County v. ACLU of Kentucky, the Court relied on the Lemon test’s requirement that government action have a secular purpose in upholding a preliminary injunction barring Kentucky counties from displaying the Ten Commandments in courthouses. The Court’s opinion cited Marsh in a footnote as an example of “special instances” involving “good reason to hold governmental action legitimate even where its manifest purpose was presumably religious”—again, reaffirming Marsh as exceptional. Justice Alito’s depiction of Marsh rather than Lemon as the ordinary analytical starting point in the Court’s recent cases is inaccurate.

In resituating Marsh and Greece at the center of Establishment Clause analysis, the plurality opinion also dramatically recharacterizes the analysis in those decisions. Marsh stressed that the legislative-prayer tradition dated back to the First Congress. Subsequent opinions have emphasized this history; even Justice Alito has previously described Marsh as “looking to the actions of the First Congress in interpreting the First Amendment.” Along similar lines, Greece laid out a framework for determining whether a practice qualified as specifically historically permissible for Establishment Clause purposes: (1) identify a tradition, such as “legislative prayer,” that at minimum “was accepted by the Framers and has withstood the critical scrutiny of time”; and (2) determine whether the specific practice at issue fits within the tradition. If you don’t believe me, check out Judge O’Scannlain’s recent dissent from denial of rehearing en banc in a Ninth Circuit case involving school board prayer, which uses this precise analytical approach.

But the plurality describes the Marsh-Greece approach very differently. The plurality does not seek to identify a historically acceptable tradition and determine whether a particular practice (like a certain town council’s opening prayer, or a particular war memorial containing religious symbolism) fits within it. Instead, it recharacterizes the Marsh-Greece analysis in this way:

 “The practice begun by the First Congress [of legislative prayer] stands out as an example of respect and tolerance for differing views, an honest endeavor to achieve inclusivity and nondiscrimination, and a recognition of the important role that religion plays in the lives of many Americans. Where categories of monuments, symbols, and practices with a longstanding history follow in that tradition, they are likewise constitutional.”

The opinion does not then go on to discern a tradition of religious war memorials dating back to the Founding and situate the Bladensburg cross within it. Its explanation, instead, is that the cross has “acquired historical importance” “with the passage of time.” There is no discussion of whether the United States has a longstanding practice of war memorials incorporating religious imagery—although we’d expect that from an approach in the Marsh-Greece line based on the language of those cases.

Justice Gorsuch’s concurrence in the judgment, joined by Justice Thomas, takes a similar approach and in fact pushes it even further. It takes the relevant inquiry as whether a monument or practice is in “compliance with ageless principles.” And it too doesn’t seem to require the identification of any existing tradition as a prerequisite: Justice Gorsuch says that “what matters . . . is whether the challenged practice fits ‘within the tradition’” not of a type of practice dating back to the First Congress but, broadly, “of this country.” And, like the plurality, the Gorsuch concurrence attributes this historical-inquiry framework to Marsh and Greece. Together, the two opinions joined by six justices center Marsh-Greece as archetypal Establishment Clause analysis.

Justice Kagan’s and Justice Kavanaugh’s Opinions: How Much of a Shift?

It’s unclear in this transitional moment how much of an avulsion American Legion’s history-and-tradition analysis really is for Establishment Clause doctrine. Discouragingly for those committed to stare decisis (the Court’s continued reliance on the rules set out in its prior cases), Justice Kagan’s partial concurrence seems to anticipate that the Court will more forcefully displace traditional doctrinal tests and replace them with the Court’s modified historical approach. She suggests that “look[ing] to history for guidance” on a “case-by-case” basis is appropriate and that there is “much to admire” in the plurality’s historical analysis, such as respect for diversity and inclusion. Justice Kagan’s opinion appears carefully worded to highlight the limiting factors in the historical approach, likely with an eye toward future cases. (Justice Ginsburg’s dissent does not discuss the historical approach.)

On the other hand, maybe there’s some room for optimism based on Justice Kavanaugh’s concurrence. Justice Kavanaugh notes that a footnote in the majority delineates separate categories of Establishment Clause cases, including public monuments and ceremonies; religious exemptions and accommodations; subsidies and tax exemptions; religion in public schools; and private religious speech in public forums. His opinion cites Marsh, Greece, and the plurality opinion in Van Orden v. Perry for the proposition that the Court looks to history and tradition in cases involving public monuments and ceremonies. He does not mention history in discussing any other category. This might be too optimistic a reading, particularly since Justice Kavanaugh joined the plurality’s history and tradition analysis. And he also extracts the “overarching” principle that “ordinarily” a noncoercive practice “rooted in history and tradition” is constitutionally permissible. Perhaps we will see that some categories, like religion in schools, do not fit this “ordinar[]y” analysis. Then they would become in this context—as legislative prayer was under the old Establishment Clause approach—extraordinary.

American Legion’sImplications for Stare Decisis: Inverting the Centrality of Doctrinal Strands

Whatever American Legion’s effect on interpretation of the Establishment Clause, Justice Alito’s and Justice Gorsuch’s opinions have worrisome implications for the Court’s treatment of precedent in other contexts as well. We tend to focus on two possibilities for how the Court may handle precedent when a new majority, including the recent Trump appointees, disagrees with it: explicit overrulings of prior cases or death of a standard by a thousand cuts, where the Court claims to apply the existing legal standard but dilutes it beyond all recognition. The death-by-a-thousand cuts approach is typically associated with distinguishing away prior cases. But American Legion suggests another possible approach to dealing with disfavored precedent, in which the Court moves a peripheral or compromise area to the doctrinal core, while rewriting jurisprudential history to claim that the periphery has been the center all along. This move warps the underlying standard to comport with an imagined doctrinal past. And, in misstating the past, the Court avoids having to offer any strong justification for its doctrinal shift—because purportedly there is no real shift at all but, at most, a subtle accretion.

American Legion stands out because Marsh and Greece are clear about both legislative prayer’s atypicality and their reliance on an identified tradition tracing back to the Founding. The two opinions that move Marsh and Greece to the core could have noted the doctrinal stickiness of doing so and explained their choice. They could have cited prior monuments cases relying on historical practice, stated that we ought to view Establishment Clause doctrine as converging in the monuments and legislative-prayer contexts, and explained that the Court will now apply a test predicated on history and tradition in both contexts. But instead six justices signed onto the idea that legislative-prayer doctrine has been the rule all along.

That move ought to concern us. Characterizing jurisprudential history in a way that is fundamentally at odds with reality masks doctrinal developments from public view and, at worst, risks eroding judicial legitimacy. But even beyond public perception, accurately describing the past, and especially past compromises, is essential to transparent and honest conversation about where we find ourselves in the present and where we want to go in the future.


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