United States Supreme Court justices have long insisted that the Establishment Clause must be understood in light of its “generating history.” In 1971, a majority of them adopted an analytical test, known as the Lemon Test, that was purportedly grounded in this history. The test was used with some regularity in the 1970s and 1980s, with results that often favored secularism over religion.

　　Even in Lemon’s heyday, justices sometimes considered whether there was a long history and tradition of governments engaging in particular practices. For instance, in Marsh v. Chambers (1983), a majority of justices, in an opinion written by Chief Justice Warren Burger, upheld the constitutionality of legislative chaplains and prayer because legislatures, from the founding to the present day, regularly employed chaplains and began meetings with prayer. As such, these practices are “deeply embedded in the history and tradition of this country.”

　　Some advocates of the strict separation between church and state have suggested that for a practice to be constitutional, there must be a long history and tradition of states engaging in that specific act. For instance, in several of the recent cases involving posting copies of the Ten Commandments in public schools, a few advocates and judges thought it significant that the states could not demonstrate that there is a long and unbroken tradition of posting the Ten Commandments in public school classrooms.

　　A chief problem with this argument is that the Supreme Court has never said that there must be longstanding and widespread history of governments engaging in specific practices in order for them to be permissible. In some cases, there is a longstanding and unbroken history and tradition of practices such as opening legislative sessions with prayer, having military chaplains, and gubernatorial or presidential Thanksgiving Day proclamations. But even when Lemon was good law, the Court found some practices of relatively recent origin to be constitutional.

　　For instance, Americans didn’t widely celebrate Christmas until the 1820s and 1830s. Even when it was celebrated, it was primarily “as a home and church festival” until the twentieth century when it “became increasingly a public occasion.” For instance, citizens of “New York erected a community Christmas tree in 1912, purported to be the first ever in the country” and “President Coolidge lit the first ‘National Christmas Tree’” on the White House lawn in 1923.

　　In the early-to-mid-twentieth century, some governments began placing Nativity scenes on public property. There is no evidence that they did so regularly from the founding era to the present day, but in Lynch v. Donnelly (1984), the Supreme Court found such a display to be constitutional.

　　A few years later in County of Alleghenyv.American Civil Liberties Union, Greater Pittsburgh Chapter (1989), justices found a stand-alone Nativity scene inside a courthouse to be unconstitutional but upheld an outdoor Chanukah menorah that stood next to a Christmas tree and a sign to be permissible. The presence of other displays (or lack thereof) featured heavily in some justices’ reasoning, but for present purposes note that Chanukah menorah displays on public land are of very recent origin. Indeed, in his concurring opinion in this case, Justice Anthony Kennedy specifically observed that the fact that “displays commemorating religious holidays were not commonplace in 1791” does not entail that such displays are inconsistent with the values underlying the Establishment Clause.

　　Even originalists disagree about whether some practices are sufficiently analogous to founding era hallmarks so as to be unconstitutional.

　　A related argument made by those who would remove religion from the public square is that old religious monuments are fine while new ones are not. Such an approach may be reasonably attributed toJustice Stephen Breyer, who stated in oral arguments that for American Legion v. American Humanist Association:“History counts. And so, yes, okay, but no more.” His concurring opinion in the case, which was joined by Justice Elena Kagan, suggests that this may well be the position of both justices.

　　There are at least two major difficulties with this argument. First, as Dennis Wieboldt pointed out in a recent Law Liberty essay, America’s Protestant majorities routinely discriminated against Roman Catholics in America from the early colonies well into the twentieth century. As such, there are few “old” monuments on public property that feature Catholic images. Relatedly, as I argued in another Law Liberty essay, an old-is-fine-but-new-is-not standard discriminates against non-Christian religions. The rule would permit massive crosses now on public property, but not Stars of David or passages from the Hebrew Scriptures found at many holocaust memorials.

　　Supreme Court justices have long claimed to be interpreting the Establishment Clause in light of the evils it was meant to prevent, but from 1947 through the 1980s they relied on faulty history and, after 1971, the flawed Lemon Test, to find many government practices to be unconstitutional. Fortunately, since the 1980s, a majority of the justices drifted away from Lemon, and in Kennedy v. Bremerton the Supreme Court clearly abrogated Lemon in favor of an approach grounded in “historical practices and understandings.” In Shurtleff v. City of Boston (2022), Justice Gorsuch, drawing from an influential law review article written by Michael McConnell, explained:

　　Beyond a formal declaration that a religious denomination was in fact the established church, it seems that founding-era religious establishments often bore certain other telling traits. First, the government exerted control over the doctrine and personnel of the established church. Second, the government mandated attendance in the established church and punished people for failing to participate. Third, the government punished dissenting churches and individuals for their religious exercise. Fourth, the government restricted political participation by dissenters. Fifth, the government provided financial support for the established church, often in a way that preferred the established denomination over other churches. And sixth, the government used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function. Most of these hallmarks reflect forms of “coerc[ion]” regarding “religion or its exercise.”[citations removed]

　　Under this approach, if a government practice is challenged on Establishment Clause grounds, the first question justices ask is whether it may be characterized as one of the hallmarks of a religious establishment. If so, it is presumably unconstitutional, although, as my colleague Christian Edmonds has argued, that presumption can be “rebutted only with strong historical parallels.” But if a practice does not resemble a traditional hallmark of an establishment, it is presumably constitutional—an argument that can be strengthened by showing that there is a long history and tradition of governments engaging in the act.

　　So, for instance, if a state passed a law requiring everyone to attend church services on Sunday morning, justices would recognize that this is the sort of hallmark of a religious establishment the founders understood the Establishment Clause to prohibit and so would declare it unconstitutional. On the other hand, including a Star of David in Ohio’s Holocaust Memorial is not identical or even analogous to any of the hallmarks and so is presumably constitutional. Indeed, as Nathan Chapman and Michael McConnell observe, “no one—to the best of our researches—ever claimed at the founding that the display of religious symbols was a form of religious establishment.”

　　In addition to demonstrating that the Establishment Clause was not originally understood to prohibit religious images/language on public property, defenders of Ohio’s Holocaust Memorial might also argue that there is a long history and tradition of governments (local, state, and national) erecting monuments containing religious images and language. But they would not be expected or required to show that there is a long history and tradition dating from the 1790s of governments erecting Stars of David on public property. No justice has ever insisted on this use of history and tradition.

　　The Supreme Court’s shift from Lemon to a history and tradition-based approach to interpreting the Establishment Clause will not solve all interpretive difficulties. Even originalists disagree about whether some practices are sufficiently analogous to founding-era hallmarks to be unconstitutional (compare this article with this one). But advocates and jurists alike need to pay attention to what the Court has actually said is required by a history and tradition approach rather than distort its requirements to advance contemporary agendas.