Notre Dame Law School professors examine history, tradition, and the future of Establishment Clause litigation

On September 21, Notre Dame Law School professors John Meiser and Dennis Wieboldt discussed recent litigation involving public religious displays and the Supreme Court’s shift toward a history and tradition approach to Establishment Clause litigation. Co-sponsored by the Program on Church, State & Society, Lindsay and Matt Moroun Religious Liberty Clinic, and Center for Citizenship and Constitutional Government, the event drew many students, faculty, and members of the law school and greater university communities. Professor Sherif Girgis moderated the discussion.

In Kennedy v. Bremerton School District (2022), the U.S. Supreme Court instructed lower courts to interpret the federal Establishment Clause in accordance with history and tradition. Since then, lawsuits have been filed across the nation that have raised difficult questions about what exactly this new methodology means for the constitutionality of public religious displays like the Ten Commandments. And even some state courts interpreting their state establishment clauses are also now turning to history to determine the constitutionality of contemporary religious displays.

Meiser began the discussion by explaining how courts had approached Establishment Clause cases before Kennedy. For decades, courts relied on the framework established in Lemon v. Kurtzman, which asked whether a government action had a secular purpose and effect and whether it created excessive entanglement between government and religion. Later, this three-part “Lemon test” began to also focus on whether a reasonable observer would view a government action as an impermissible endorsement of religion.

In Kennedy, however, the Supreme Court rejected the Lemon framework and instructed courts to look instead to “historical practices and understandings” when interpreting the Establishment Clause.

Meiser said the shift created two significant questions for lower courts: how to treat decades of Establishment Clause decisions decided under the Lemon framework and how courts should determine the relevant historical understanding in new cases.

Meiser explained that the history and tradition approach does not require courts to find an exact historical equivalent before determining whether a government action violates the Establishment Clause.

“Justice Barrett, for example, has been very clear that we're not looking for a one-to-one historical twin,” Meiser said. “That can't be the test. It would be too artificial.”

Meiser thus rejected an approach that would limit Establishment Clause analysis to a fixed list of historical practices that have been identified in other cases and earlier scholarly work.

“It can't possibly be what the court has asked us to do with this move to history,” Meiser said. “That would just entrench rules against six very particular forms of law and then suggest that nothing else can ever constitute an establishment.”

Instead, Meiser argued, the Supreme Court has asked courts to determine what core principles can be drawn from historical practices and then determine how those principles apply to contemporary circumstances. He acknowledged that this can be a difficult task and that courts must refrain from defining principles too abstractly as to undermine the historical method itself.

“I think the rejection of religiously coercive practices is one principle the court has signaled it will enforce,” Meiser said. “The harder question is what that means.”

Addressing the Ten Commandments litigation, Meiser suggested that this principle should at least be understood to prohibit the government from using its coercive power to require children to receive devotional religious instruction. In Meiser’s view, some of the new Ten Commandments laws cross that line.

Wieboldt turned to Fitzmaurice v. Quincy, a recent case before the Massachusetts Supreme Judicial Court involving the proposed construction of statues of St. Michael the Archangel and St. Florian on the exterior of a public safety building.

Wieboldt explained that the Massachusetts Supreme Judicial Court considered whether there was a history and tradition of the state erecting public displays of religious figures analogous to the proposed statues. The court concluded that there was not a sufficient tradition of displaying Catholic figures in the relevant context.

But Wieboldt noted that the court’s historical analysis did not fully account for Massachusetts’ history of anti-Catholicism.

“The reason there’s no history and tradition in Massachusetts of displaying St. Michael or other figures associated with the Catholic Church is that Massachusetts had a long history of anti-Catholicism,” Wieboldt said. “So we shouldn’t be surprised that there isn’t a robust eighteenth- and nineteenth-century tradition of erecting those kinds of figures.” He then noted that this presents a problem for courts of how to avoid giving legally operative effect to now-abandoned traditions of discrimination.

Wieboldt suggested that courts could address this problem by construing historical traditions at somewhat higher levels of generality. Rather than asking whether there is a history of displaying Catholic figures specifically, courts could ask whether there is a history of displaying religious figures in public architecture, as he argued in a recent essay for the legal magazine Law & Liberty.

That approach, he said, could allow courts to use history and tradition without giving legally operative effect to historical practices that arose from religious discrimination.

The discussion also examined the role of historians in the new approach to Establishment Clause cases. Girgis asked Wieboldt about criticism from historians that history and tradition methodologies can obscure the normative judgments that judges make when selecting and interpreting historical evidence.

Wieboldt acknowledged that judges using history and tradition methodologies can sometimes mask those judgments.

“When you're dealing with historical materials, you always have choices to make about what materials to look at, which actors to look at, and how broadly to construe historical traditions,” Wieboldt said. “Those choices are necessarily informed by first-order judgments about how to read the historical record.”

He pointed to Fitzmaurice as an example of how those choices can affect a court’s analysis. The Massachusetts court was aware of the state’s history of religious discrimination, he said, but its opinion

did not fully address the legal significance of that history.

Wieboldt emphasized that acknowledging the role of judgment in historical analysis does not mean that history and tradition methodologies are necessarily illegitimate. He added that all legal tests—whether interest balancing, history and tradition, or otherwise—always rest ultimately on normative judgments.

Following the discussion, students had the opportunity to ask Meiser and Wieboldt additional questions during a question-and-answer session. This gave students an opportunity to further explore the history and tradition approach to Establishment Clause litigation and its implications.