\n<\/p>\n
Last year, Texas passed a\u00a0law<\/span><\/a> requiring all public schools to conspicuously display the Ten Commandments \u2014 just the text with no commentary.<\/p>\n Of course, challengers immediately ran to court, crying foul and claiming that this requirement violated both the\u00a0First Amendment\u2019s<\/span><\/a>\u00a0Establishment and Free Exercise Clauses.<\/p>\n But after careful consideration, the Fifth Circuit Court of Appeals, in a masterful\u00a0opinion<\/span><\/a>\u00a0by Judge Kyle Duncan, said that\u2019s just not so.<\/p>\n Importantly, Judge Duncan\u2019s opinion reaffirmed a fundamental principle we should already recognize. If a practice was not understood at the time of the Founding \u2014 by those who ratified the First Amendment \u2014 as a violation, then it should not be considered a violation today. Judges are not tasked with updating the Constitution to suit modern times \u2014 or they shouldn\u2019t.<\/p>\n While this commonsense proposition seems straightforward, it hasn\u2019t been for many years. In 1971, the U.S. Supreme Court issued its infamous\u00a0Lemon v. Kurtzman<\/i><\/span><\/a>\u00a0opinion where it set forth a confusing three-part test to help courts determine whether the government had violated the Establishment Clause: Did the statute or action have a secular purpose? Did it primarily advance or inhibit religion? And did it result in \u201cexcessive government entanglement\u201d with religion \u2014 whatever that means? Rather than providing clarity, this test quickly proved unworkable as lower federal courts struggled to consistently apply its prongs across cases.<\/p>\n And while the Supreme Court for far too long declined to overrule it explicitly, the\u00a0Lemon\u00a0<\/i>test did lose favor among many justices. But because it continued to lurk among the Supreme Court\u2019s case law, rearing its ugly head from time to time, Justice Scalia once described<\/span><\/a> it as being like \u201csome ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried \u2026\u201d<\/p>\n And it remained that way for almost 30 more years after Justice Scalia penned that line until the Court officially overruled\u00a0Lemon\u00a0<\/i>and its progeny in\u00a0Kennedy v. Bremerton School District<\/i><\/span><\/a>.<\/p>\n So, with a stake through its heart, what comes after the dead-and-buried\u00a0Lemon\u00a0<\/i>test?<\/p>\n The Fifth Circuit joined some of its sister circuits by agreeing that the Supreme Court now requires lower federal courts to ask whether those challenging a certain practice have \u201cprov[en] a set of facts that would have historically been understood as an establishment of religion.\u201d<\/p>\n Drawing heavily from the work of former federal judge and leading First Amendment scholar Michael McConnell, the Fifth Circuit said that for such an establishment to exist, approximately six \u201challmarks\u201d of \u201cfounding-era establishments\u201d must be consulted. These include:<\/p>\n (1) government control over religious doctrine, governance, and church personnel; (2) compulsory church attendance; (3) compelled financial support, especially in the form of land grants and religious taxes; (4) prohibitions on worship in dissenting churches; (5) use of church institutions for civil functions; and (6) restriction of political participation to members of the established church.<\/em><\/p>\n<\/blockquote>\n As the court noted, none of those hallmarks are present here (even though some \u2014 including<\/span><\/a>\u00a0Professor McConnell \u2014 argue they could be, especially if circumstances shifted slightly). This historical analysis permits a more straightforward analytical pathway than previously available under\u00a0Lemon<\/i>. The malleability of that test and its flexible factors help explain why courts previously issued seemingly contradictory rulings, or held that Ten Commandments displays or Christmas cr\u00e8ches didn\u2019t violate the First Amendment, only when surrounded by other secular displays too. That\u2019s why some cities were forced to adopt the absurd and sacrilegious practice of flanking Baby Jesus with Frosty the Snowman or Snoopy, as though the latter are on equal footing with the former. Those types of requirements \u2014 which never should have existed \u2014 are no more.<\/p>\n\n