Balkinization: The New Establishment Clause Hallmarks Test: Sources and Distortions

The New Establishment Clause Hallmarks Test: Sources and Distortions

Andrew Koppelman

In the recent case of Kennedy v. Bremerton, the Supreme Court abandoned Lemon v. Kurtzman, the 50-year-old principal Establishment Clause test. Instead, it announced an “analysis focused on original meaning and history,” citing Prof. Michael McConnell’s scholarship that identifies six “historical hallmarks of an established religion.” Kennedy implied, and some lower federal courts have inferred, that the list is exhaustive: unless a hallmark is shown, there is no violation of the Establishment Clause.

If that is the new test, government may support the religious beliefs that it likes so long as it does not deploy means that resemble the hallmarks. After Kennedy, Louisiana, Arkansas, and Texas enacted statutes requiring that the Ten Commandments be posted in every public school classroom, and the Oklahoma superintendent of schools ordered that the King James Bible be integrated into the curriculum. All cited Kennedy. The validity of most of these measures has not yet been adjudicated, but the new standard could uphold them.

This test distorts the history it cites. McConnell’s research actually concludes that the clause bans “the promotion and inculcation of a common set of beliefs through governmental authority.” The list of hallmarks distracts attention from the broader principle.

The strategy that the new hallmarks test licenses is simple: point to the most obvious violations of the constitutional provision, and then declare that the challenged law is not among those violations and so is permissible. This is precisely the move the Court made in Plessy v. Ferguson, which relied on a cramped understanding of slavery and racial inequality in order to hold that racial segregation did not violate the Fourteenth Amendment. In both cases, the Court arbitrarily narrows its description of the paradigmatic wrong that a constitutional provision aims to end, and so hobbles the Constitution in the guise of interpreting it.

This is the first article that compares Kennedy with the scholarship on which it claims to rely. It has implications, not only for the Establishment Clause, but for originalist theorizing more generally: simple textualism easily goes awry when applied to a text that does not state a rule, but rather names a historical evil that must not be repeated. By redefining the Establishment Clause in terms of historical episodes rather than underlying principles, Kennedy risks hollowing out constitutional protections while maintaining the appearance of fidelity to the text.

Michael Judah and I so argue in a new working paper just posted on SSRN, here.

Posted 12:30 PM by Andrew Koppelman [link]