Establishment-clause jurisprudence is famously a mess. One path for cleaning it up is suggested by Justice Clarence Thomas’s opinion today in American Legion vs. American Humanist Association, the Bladensburg Cross case, which notes the strong originalist case that the clause should never have been incorporated against the states.
Another course was suggested by Michael McConnell et al in the Becket Fund’s brief.
Under a historical approach to the Establishment Clause, the question is not whether a fictive “reasonable observer” would think the government is “endorsing” religion (as compared to what?). The question is whether the government’s actions share the historic characteristics of an “establishment of religion” at the time of the founding. This is an objective inquiry that is not hard to apply, as there is abundant evidence of what constituted an establishment at the founding—namely, (1) government control over the doctrine and personnel of the established church; (2) mandatory attendance in the established church; (3) government financial support of the established church; (4) restrictions on worship in dissenting churches; (5) restrictions on political participation by dissenters; and (6) use of the established church to carry out civil functions.
The Supreme Court didn’t take either course. Did it nonetheless clear things up? Well . . .
ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, II–C, III, and IV, in which ROBERTS, C. J., and BREYER, KAGAN, and KAVANAUGH, JJ., joined, and an opinion with respect to Parts II–A and II–D, in which ROBERTS, C. J., and BREYER and KAVANAUGH, JJ., joined. BREYER, J., filed a concurring opinion, in which KAGAN, J., joined. KAVANAUGH, J., filed a concurring opinion. KAGAN, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined.
As a friend of mine commented: Good luck, circuit courts!