Christian B. Edmonds
94 Geo. Wash. L. Rev. Arguendo 21
The Supreme Court’s decision in Kennedy v. Bremerton School District restored a historical understanding of the Establishment Clause, explaining that a private act of religious expression did not transform into government speech simply because it occurred in public. Although the Court emphasized the role of historical practices and understandings in interpreting the Establishment Clause, it did not provide detailed guidance on how the new framework should operate in practice. Faced with this analytical uncertainty, this Essay proposes a framework supplementing the six-factor analysis from Justice Gorsuch’s concurrence in Shurtleff v. City of Boston with the analogous historical evidence inquiry adopted in United States v. Rahimi.
Under this framework, when the Shurtleff hallmarks are absent, there is no indicia of an establishment and the historical inquiry should be highly deferential. When a government action bears one of the hallmarks of a religious establishment, however, the action is presumed to be unconstitutional and the government must present strong historical evidence showing the practice falls within a well-established and accepted tradition. This Essay applies this framework to a case currently awaiting Supreme Court review: Cambridge Christian School, Inc. v. Florida High School Athletic Ass’n, concluding that communal prayer, particularly when voluntary and free from government compulsion, does not violate the Establishment Clause.
