On August 20, the Supreme Judicial Court (SJC) of Massachusetts held in Fitzmaurice v. Quincy that the town of Quincy would likely violate the Massachusetts Constitution if it installed two statues of religious figures on the façade of the city’s new public safety building. As designed, one statue was to depict Saint Michael the Archangel; the other was to depict Saint Florian. Michael and Florian are recognized as the patron saints of police officers and firefighters, respectively, and represent the “values of bravery and honor.”

　　After the Quincy mayor announced his construction plan, 15 taxpayers in the city sued. They argued that the statues’ installation would violate a provision of the state’s constitution which provides that all religious sects and denominations … shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall ever be established by law. This language was added to the state’s constitution in the 1830s to replace another, older provision that had effectively established Congregational Protestantism as Massachusetts’s official religion.

　　The SJC agreed with the Fitzmaurice plaintiffs, reasoning that the construction of the statues, because of their association with the Catholic Church, would result in the effective subordination of non-Catholic faith traditions. This was so even though other traditions, including Judaism and Islam, recognize figures like Saint Michael as “significant,” as the SJC itself acknowledged.

　　In reaching this conclusion, the SJC found itself bound by a 1979 precedent, Colo v. Treasurer Receiver General. There, taxpayers unsuccessfully challenged the use of public monies to pay the state legislature’s two Catholic chaplains. Importantly, the Colo court not only undertook a historical analysis of the tradition of legislative chaplaincy to determine its lawfulness, but also described its analysis as being “aided by” the US Supreme Court’s 1971 decision in Lemon v. Kurtzman. In Lemon, the justices articulated a three-part test for evaluating anti-establishment claims under the First Amendment to the US Constitution. The holding of Colo was, in part, that the chaplaincy did not violate Lemon because there exists a “long-standing history and acceptance of opening prayer” designed to encourage legislators to reflect on the solemnity of their responsibilities.

　　In 2022, the US Supreme Court overruled Lemon in Kennedy v. Bremerton School District, replacing the former’s three-part test with one guided by “reference to historical practices and understandings.” So, in Fitzmaurice, the SJC placed even more emphasis than it had in Colo on history. This led the SJC to conclude that Quincy should be precluded from constructing its statues because, among other things, the statues are not “long-standing historic monuments important to our common history.”

　　From the SJC’s perspective, statues honoring Saints Michael and Florian must be thought of differently than crosses erected to commemorate those who died in the Second World War or statues of Mayflower passengers clutching their Bibles. These displays, the SJC stated, have “obvious religious origins” but have also “taken on a common, secular meaning and significance over time.” By contrast, statues to Saints Michael and Florian lack “such secular meaning built through common history” and instead have the potential “to be perceived as government endorsement” of the Catholic Church. Reading between the lines of Fitzmaurice, this seems especially so because the proposed statues are new statues, and there is not a robust tradition of including similar Catholic imagery in the Bay State’s monuments and architecture.

　　At best, the SJC’s conclusion that the passive display of Saints Michael and Florian will be perceived as an endorsement of the Catholic Church is contestable. But regardless of whether one agrees or disagrees with the SJC’s bottom-line holding in Fitzmaurice, its invocation of history and tradition raises important methodological questions for other state and federal courts which, after Kennedy, will adjudicate anti-establishment claims by looking to the past. Among these questions is whether now-detested traditions of discrimination—whether against religious, racial, or other minorities—are probative of a constitutional provision’s meaning.

　　This conundrum was recently highlighted in Wolford v. Lopez, a Second Amendment dispute before the US Supreme Court last term. There, a challenge was brought to a Hawaii law that prohibited the possession of firearms on private property open to the public without the property owner’s express consent. To assess the constitutionality of that law, the Court compared the reasons for its enactment (the “why”) and its method of operation (the “what”) with those of seemingly analogous eighteenth- and nineteenth-century firearms restrictions.

　　The mere fact that laws were enacted in the past to subordinate minorities does not mean that government actors could enact those laws today.

　　Among the laws that Hawaii cited to support the constitutionality of its regulation were several provisions enacted after the Civil War to prevent newly freed persons from possessing firearms. As Justice Thomas explained in 2010, these laws (known as “Black Codes”) were the product of southern anxieties “about an uprising among the newly freed slaves.” This fear, he emphasized, led to “‘systematic efforts’ in the ‘old Confederacy’ to disarm the more than 180,000 freedmen who had served in the Union Army, as well as other free blacks.” Southern concerns about newly freed persons after the Civil War were so substantial that, “‘throughout the South, armed parties, often consisting of ex-Confederate soldiers serving in the state militias, forcibly took firearms from newly freed slaves.’”

　　In Wolford, the Court was asked to decide whether the Black Codes were a relevant part of the United States’ “historical tradition of firearm regulation.” The majority, which invalidated Hawaii’s law, thought not, arguing that “Hawaii’s claim that this tainted artifact illuminates the original understanding of the right to keep and bear arms cannot be taken seriously.” But Justice Jackson thought otherwise, asserting in her dissent that the majority erred in “categorically exclud[ing] historical laws that restricted Black people from possessing firearms” from its analysis. From her perspective, because the Court “has decided to use history as the metric” for assessing firearms restrictions’ constitutionality, and “these laws are part of our Nation’s history,” the Wolford majority should have made “an actual assessment of the relevance of what the historical record reveals.”

　　To be sure, the majority perhaps too quickly dismissed Hawaii’s arguments about the probative value of the Black Codes. But as Justice Barrett explained persuasively in her separate concurrence, because Hawaii sought to limit access to firearms for reasons other than the “subordinat[ion] [of] newly freed slaves,” the Black Codes were not relevantly similar historical precedents for the firearm restriction at issue in Wolford. In other words, because the “why” of Hawaii’s law did not match (or even remotely resemble) the “why” of the Black Codes, the existence of the latter could not support the constitutionality of the former.

　　An analogous set of questions underlies the dispute in Fitzmaurice. As historians have long acknowledged, Massachusetts was among the most anti-Catholic of the early colonies and states. In 1700, for example, the state passed the “Act Against Jesuits and Popish Priests,” authorizing, among other things, the warrantless apprehension of “any Jesuit, seminary priest or other of the Romish clergy.” More than a century later, townspeople in Ursuline, Massachusetts, ransacked and burned the convent of the first Catholic school for girls in the state. And well into the early decades of the twentieth century, the historian Paula M. Kane has noted, non-Catholic residents of Massachusetts used “political muscle to impose literacy tests, poll taxes, and immigration restrictions” to legally entrench Catholics’ existing social and cultural marginalization.

　　All of this considered, it should come as little surprise that there is no robust history and tradition in Massachusetts of constructing statues of figures associated with the Catholic Church. But should that determine the meaning of the Massachusetts state constitution’s establishment clause? I am skeptical, not least because such a rule would require courts to perpetuate longstanding patterns of discrimination now recognized as constitutionally untenable. Unless jurists are comfortable giving legally operative effect to silences in the historical record created by now-abandoned prejudices, the mere absence of a historical tradition cannot itself resolve the constitutionality of a challenged enactment or government practice today. In an analogous way, as Justice Barrett explained in Wolford, the mere fact that laws were enacted in the past to subordinate minorities does not mean that government actors could enact those laws today.

　　Of course, there are hard questions that courts will now need to confront if a contemporary regulations lawfulness is to be determined by reference to historical traditions. Among these questions is the appropriate level of generality at which to construe those traditions. But even if answering these questions is challenging and likely to generate disagreement, perhaps Fitzmaurice can be the impetus for finding some common ground. Indeed, it seems that jurists and scholars of divergent priors should be able to agree that, when considering the appropriate level of generality at which to construe a tradition, one ought not to select a level that would have the effect of perpetuating longstanding patterns of invidious discrimination.

　　Notably, this is not unlike what the SJC itself did in Colo by asking whether there is a history and tradition of “legislative chaplaincy,” not Catholic legislative chaplaincy. If the US Supreme Court takes up an appeal of Fitzmaurice, asking a version of this less denominationally specific question will enable it to avoid the rather remarkable result of Fitzmaurice—namely, giving legally operative effect to now-abandoned traditions of discrimination.