Supreme Court's 'history-and-tradition' test corrodes church-state barrier

A demonstrators holds a large cross outside the U.S. Supreme Court. REUTERS/Jonathan Ernst

(Reuters) - A federal appeals court ruling last week confirms fears that a spate of recent U.S. Supreme Court decisions will be weaponized to break down the historic barrier between church and state, particularly with regard to Christianity.

The 5th U.S. Circuit Court of Appeals decided 2-1 on Sept. 29 that a Christian minister-turned-judge can continue opening his court with a prayer from a revolving group of chaplains. Wayne Mack, a Texas Justice of the Peace, made a campaign promise to incorporate prayer in his court based on his view that God wants the program in place “for His larger purpose,” according to a lower court decision that initially found the practice unconstitutional.

The 5th Circuit’s opinion was largely unthinkable before the Supreme Court’s conservative wing overturned a number of long-established precedents this year.

In fact, the ruling is a realization of a hypothetical the justices offered in a 2014 case as an example of government entanglement with religion that clearly crosses a constitutional line. In that opinion, conservative Justice Samuel Alito described the example of a litigant asked by a judge to rise for a Christian prayer as “highly imaginative” – and agreed such a practice would violate the constitution.

That’s nearly exactly what happens in Mack’s courtroom -- but the Fifth Circuit upheld the practice.

Allyson Ho, a Gibson, Dunn & Crutcher attorney who represented Mack, told me that remaining in his courtroom during the opening prayer is “entirely voluntary,” and he includes signs and instructions informing people they can leave. Mack was also backed in the case by the attorneys general of Texas, Louisiana and Mississippi, and by First Liberty Institute, a religious legal group that worked on several recent lawsuits that drastically expanded religious rights.

Mack didn't immediately respond to a request for comment. Lawyers with the Freedom From Religion Foundation, which filed the suit over Mack's prayers, didn’t respond to a request for comment.

The 5th Circuit relied mainly on new Supreme Court precedent from two decisions issued in June that split 6-3 along partisan lines. One held that a Christian football coach at a public high school has a constitutional right to lead kids in prayer after games, and another established a strong constitutional right to carry handguns in public.

Those cases were part of a trio of bombshell opinions this year that radically reshaped constitutional rights -- including the anti-abortion ruling -- and replaced decades-old precedent with a sort of all-purpose history-and-tradition test, a phrase coined by Justice Sonia Sotomayor.

Broadly speaking, longstanding tests in those contexts directed courts to assess the reasonableness of what the government wants to do (reduce smoking, for example) and how it's going about accomplishing that goal (age restrictions and restrictions on location of sales, for example) and to balance those interests against individual rights and freedoms.

The previous test in cases about religious practice came largely from a 1971 ruling, Lemon v. Kurtzman. It required considering whether a challenged government action had a secular purpose; whether its effect advanced or inhibited religion; and whether the action could be considered an endorsement of religion.

But now, the court’s conservative majority has replaced those purpose-and-effect analyses, directing judges to decide the scope of a number of constitutional rights by simply looking to "historical practices and understandings," without further specific guidance.

Historians denounce that practice as "law office history," a results-oriented method in which evidence is cherry-picked and interpreted to reach a preordained conclusion, former University of Chicago Law School professor Philip Kurland wrote in a 1986 law review article. (It’s also worth noting that the history-and-tradition test wholly incorporates originalism.)

The liberal justices made the same critique in the recent gun rights case.

“The Court’s insistence that judges and lawyers rely nearly exclusively on history to interpret the Second Amendment thus raises a host of troubling questions,” Justice Stephen Breyer wrote in dissent. Will "the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?”

That seems to be exactly what happened in Mack’s case, as dissenting 5th Circuit Judge E. Grady Jolly wrote.

The majority concluded that Mack’s practice fits with historical precedent, but the examples cited are clearly distinguishable.

The court pointed to historical sources mentioning a handful of occasions where clergy prayed in federal courts, but those generally involved a court’s inauguration or opening, rather than routine litigation. Indeed, “proper historical analysis” shows there was no long or established history of courtroom prayer in the U.S., and that it would not have been supported by the founders, according to the only amicus brief in the case filed by actual historians.

The Fifth Circuit’s opinion parallels the high court’s recent rulings in other problematic ways.

In the praying coach's case, Sotomayor wrote that the majority didn’t engage with the unique coercive power coaches have over adolescents. Moreover, the court simply misrepresented the facts – portraying the prayers as quiet and private, when they were actually quite demonstrative, Sotomayor wrote.

In Mack’s case, the 5th Circuit similarly disregarded arguments that people felt coerced to participate in prayers ordered by a presiding judge, calling them speculative and unreasonable.

The court also accepted Mack's characterization of his procedures wholesale, even though the plaintiffs disputed his description. Worse still, it did so on a motion for summary judgment – a pre-trial stage in which judges are supposed to construe disputed facts in the plaintiff's favor. (The idea is to give some benefit of the doubt initially, in part because they'll have to overcome tough burdens of proof later.)

The Fifth Circuit’s decision is a glaring example of how easily the Supreme Court’s recent precedent can support further expansion of religion in public life, and we may see the court hand down similar opinions again this term.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com