On May 5, with Justice Kennedy writing the principal opinion, the Supreme Court ruled 5-4 that the Town of Greece, New York acted constitutionally in opening its monthly board meetings with prayers written and recited by members of the local clergy chosen by a government official from listings in a town directory. The Court’s close split reflected sharp disagreement about the meaning of the Establishment Clause and the permissibility of local government proceedings opening with prayers almost uniformly delivered by Christian ministers and priests and often more sectarian and doctrinal than ecumenical and latitudinarian in tone. The First Amendment’s Establishment Clause, the first provision appearing in the Bill of Rights, proclaims that “Congress shall make no law respecting an establishment of religion.” While the text of the Establishment Clause references exclusively federal authority, the Supreme Court has held since the Everson v. Board of Education decision of 1947 that the guarantees afforded by the Establishment Clause also apply to limit state and local authority through the Due Process Clause of the Fourteenth Amendment. Those guarantees – whatever they may be – therefore reach municipalities such as Greece, a suburban community adjoining the major city of Rochester in upstate New York.

The Supreme Court has never agreed on a single standard to determine what governmental practices run afoul of the Establishment Clause, and the Court’s newest Establishment Clause decision reveals that the justices continue to disagree about what interests the Clause protects and what conduct it prohibits. At least one member of the Court, Justice Clarence Thomas, actually rejects Everson and doubts that Establishment Clause considerations should limit state and local authority at all. For Justice Thomas, New York could presumably reestablish the Episcopal Church as the official Church of the State without raising any federal constitutional questions. Other members of the current Court, with the possible and somewhat cagey exception of Justice Antonin Scalia, agree that the creation of an official state church would be unconstitutional, and in that respect they are in harmony with every other justice to sit on the Court since Everson. But Everson’s rhetorical commitment to a strict wall of separation between church and state has fared less well. The Everson Court lifted that phrase from President Thomas Jefferson’s 1802 letter to the Danbury Baptist Association, declining on disestablishmentarian grounds an invitation to declare a national day of Thanksgiving to celebrate election results favorable to Jefferson’s party. After invoking Jefferson’s famous words, the Everson Court decided 5-4 in an opinion by Justice Hugo Black that the Township of Ewing, New Jersey had not violated the Establishment Clause or the Fourteenth Amendment by providing bus service for children attending Catholic schools. The Court has followed suit in recent decades, condoning various (but not all) governmental accommodations of religion, including prayers opening sessions of a state legislature, vouchers that parents can use for fee paying schools (including religious schools) of their choice, and some holiday displays and monuments on public property that sound clearly religious themes. Along the way, groups of Supreme Court justices have espoused multiple approaches to Establishment Clause problems including (i) a much maligned but not yet defunct three-part test favoring governmental neutrality announced by the late Chief Justice Burger in Lemon v. Kurtzman in 1971, (ii) a (non) Endorsement Test favored by Justices Blackmun and O’Connor, (iii) a (non) Coercion Test favored by Justice Kennedy, and finally (iv) an originalist inquiry embraced in the Town of Greece by Chief Justice Roberts, Justices Alito, Scalia, Thomas, and by the author of the Court’s principal opinion, Justice Kennedy, who also deployed his Coercion Test in parts of the opinion joined only by Roberts and Alito.

The litigants in Town of Greece and the nine members of the current Court are in apparent agreement that the outcome of the case depends in large measure on the correct interpretation and application of Marsh v. Chambers, a 1983 Supreme Court decision that let stand Nebraska’s practice of opening state legislative sessions with a prayer. Disestablishmentarians have long sought to limit Marsh by arguing that the case carved out a narrow exception from generally applicable Establishment Clause principles for historically entrenched practices that had become part of the “fabric of our society” or even components of a secularized national civic creed. Galloway and others challenging the Town of Greece also argued that the Town’s opening prayers were fundamentally different from those upheld in Marsh because they were addressed to members of the public and not elected officials, because the expectation in the Town of Greece was that those attending board meetings would actively participate in the prayer, and because the prayers were less ecumenical and more sectarian than those delivered to the Nebraska legislature. These arguments resonated in the dissenting opinions of Justices Breyer and Kagan (the latter joined by Justices Breyer, Ginsburg, and Sotomayor), but were rejected by Justice Kennedy and the majority, who agreed that there was no principled distinction between the legislative prayers upheld in Marsh and those challenged in Town of Greece.

Alarmingly, the five justices agreeing that the Town of Greece had not violated the Constitution may well have done much more than find the Town’s practices analogous to those of Nebraska previously upheld in Marsh. Indeed, no extrapolation or interpretation appears necessary to read into the Kennedy opinion and the Thomas and Alito concurrences the remarkable proposition that the Court will not invalidate on Establishment Clause grounds any practice the Court decides was not considered unconstitutional in 1791 when the Bill of Rights was ratified. As Justice Kennedy phrased things for the five justices joining the opinion of the Court, “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.” The claim that legislative prayer remains uncritically accepted today is perhaps less obviously true to some outside observers (this writer included) than it is to the Court. That said, the deeper problem is not whether government sponsored prayer passes Justice Kennedy’s test, but rather the Court’s embrace of a constitutional standard that depends chiefly on the justices’ perception of governmental practice as permissible at the time the constitutional language now invoked to challenge that practice was framed. It is difficult to take this standard seriously on its face, and difficult to imagine its enunciation in any other context. Picture the public outrage if the Court today announced that the proper basis for deciding if the Equal Protection Clause of the Fourteenth Amendment tolerates segregated public schools is to ask whether such schools were tolerated in 1868 when that Amendment was ratified, or if the Court proclaimed that the Due Process Clause of the Fifth Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment would not be offended if the Federal government were to execute a fifteen year old for consensual sex acts performed with another fifteen year old in the District of Columbia, because that punishment would have been considered permissible (a marginally historically literate Court might assure us) in 1791 when the Bill of Rights joined the Constitution. Testing the constitutionality of current governmental abuse by the standard of alleged – or even actual – presumptions of constitutionality at the framing does not become any less absurd if we restrict our focus to First Amendment questions. The claim that federal officials could lock up those who speak out against policy or office holders without violating the First Amendment does not become more principled when buttressed by the accurate observation that George Washington, Alexander Hamilton, John Adams, and John Marshall considered the Alien and Sedition Acts of 1798 constitutionally permissible.

Every standard or test to evaluate Establishment Clause claims Supreme Court justices have deployed since 1947 has been subject to (often cogent and perceptive ) critique by other justices, jurists, academics, and politicians. Justice Black was famously a First Amendment absolutist, to whom “Congress shall make no law” meant no branch of government shall make or enforce any law respecting an establishment of religion. But the wall of separation metaphor Black favored was breached on the day he put it into service, and his test has been roundly condemned as unduly hostile to religion and governmental accommodation of believers in the seven decades since Everson. Chief Justice Burger’s Lemon Test invalidates laws that do not have a secular legislative purpose, whose principal or primary effect either advances or inhibits religion, or that foster excessive government entanglement with religion. In short, the Lemon Test requires governmental neutrality towards religion, and is thus unlikely to satisfy a majority of the population in an increasingly polarized political culture split into rival camps demanding either governmental accommodation of or hostility towards religion. On the Rehnquist and Roberts Courts, a relatively religion skeptical Endorsement Test (forbidding governmental endorsement of religion – or non-religion) has until now jousted with a relatively religion friendly Coercion Test (forbidding governmental coercion of belief, word, or ritual). Justice Kennedy hatched the Coercion Test in 1992 in Lee v. Weisman, disallowing a religious invocation at a public middle school graduation on the grounds that it would subject impressionable students to undue psychological pressure to conform. In Town of Greece, Kennedy distinguished Weisman, perhaps suggesting that coercion analysis is uniquely telling in the school setting and that adults appearing at a town hall meeting could be presumed to be made of sterner stuff. On this front, Justice Kagan’s four person dissent disagreed, pointing to situations (say a naturalization ceremony, appearance at the polls on election day to cast a vote, or commencement of legal proceedings to which one was a party) at which pressure to pray might intolerably diminish the civic equality of those who could not or did not wish to pray as instructed. Justice Alito, in his concurrence, stressed that none of these scenarios were before the Court, suggesting strongly that if they were, he would surely join a majority in holding them invalid. In the end, for Alito as for Kennedy, the situation in Greece was much more like that before the Nebraska Legislature in Marsh than any of the scenarios Justice Kagan posited in her dissent.

But the Greece Court did not split 5-4 on the question of coercion. Two justices, Scalia and Thomas, did not join the part of Kennedy’s opinion that addressed coercion. For Scalia and Thomas, coercion was not relevant. It was enough then for the five justices forming the majority to decide the case by holding that legislative prayer existed at the framing, and was at that time deemed unproblematic (or so these non-historian originalists assure us). It is surely worth recalling that other practices that much agitated public debate in the 1780s and 90s were also widely considered not constitutionally infirm when the ratifiers’ votes were newly counted.These practices include genocidal Indian removal, the African slave trade and hereditary race based slavery in the New World, disenfranchisement and coverture for women, physical chastisement of servants by masters, and capital punishment for dozens of offenses, some of which are now considered malum prohibitum not malum in se. Widespread tolerance of grotesque inhumanity under the Constitution in 1788 and 1791 convinces me that for all the hazards of the Wall Metaphor, the Lemon Test, the Endorsement Test, and the Coercion Test, the newly minted “Was it – Or Does the Court Think it Was – Considered Constitutionally Permissible in 1788 or 1791 Test” is the least palatable option on the Supreme Court’s Establishment Clause menu. I would not choose it, and I grave concerns about the moral implications of embracing a constitutional regime as permissive of government-sanctioned public religiosity as the one this so called test portends.

Even assuming a Court with a better track record of historical accuracy and greater likelihood of avoiding writing history that is tendentious or mistaken, there are pressing reasons to shy away from originalism as a bellwether of constitutional orthodoxy. Consider the admonitions of that arch disestablishmentarian, Thomas Jefferson, who while rejecting casual constitutional revision, reminds us that “Laws and institutions must go hand in hand with the progress of the enlightened human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.” (Letter from Jefferson to Samuel Kercheval, July 12, 1816.)

It may or may not be a good thing for the Town of Greece to open its meetings with public prayer, and it may or may not be a good thing to read the Establishment Clause as permitting such prayer. Any resolution of these intertwined questions is likely to offend large numbers of people. But of this much, I am fairly certain: It is a bad thing, and quite a dangerous one, to answer the question of constitutional permissibility by reference to a subsidiary question in the form of “would our fictive and real ancestors have permitted the challenged governmental practice in 1791?” Those ancestors were, after all, as we ourselves will surely seem to generations yet to come, in many ways barbarous and unenlightened. To the extent we are aware of their blindness and barbarity, it would surely be injudicious to blindly and barbarously follow in their ways.