Establishment Clause jurisprudence is anything but “established.” The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion.” There are four primary methods that the Supreme Court created to analyze whether the Establishment Clause has been violated: the Lemon test, Endorsement Test, Coercion Test, and the historical approach. The Supreme Court has never adopted one clear test, leaving the circuit courts to decide which one to use.
Despite the Court creating the most recent Establishment Clause test in Town of Greece v. Galloway, the historical approach, the Seventh Circuit continues to solely apply the other three tests. In holding that a holiday show did not violate the Establishment Clause, the Seventh Circuit in Freedom from Religion Foundation v. Concord Community Schools applied the Lemon test, Endorsement Test, and the Coercion Test, but not the historical approach. Recently, the Eighth Circuit became the first circuit court to completely abandon the Lemon test, signaling a major doctrinal shift.
The Supreme Court in Town of Greece overtly gave greater weight to history by mandating historical practices be analyzed in Establishment Clause cases, and therefore courts must look to history. As this Note will argue, the Seventh Circuit should have applied the historical approach when deciding Concord. The language in Town of Greece directs lower courts to examine the history of a practice when evaluating whether there has been a violation of the Establishment Clause. If history can demonstrate that a practice is well-settled in American history, no further test is necessary. But if history cannot resolve the issue, only then may courts turn to the other Establishment Clause tests set forth by the Supreme Court.
Samantha M. Ruben,
Anything but Established: The Seventh Circuit’s Desertion of Supreme Court Establishment Clause Jurisprudence,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol14/iss1/4