This week, the en banc Sixth Circuit will hear Bormuth v. County of Jackson. The case illustrates how broken establishment-clause jurisprudence has long been. But as Becket and Stanford Law School professor Michael McConnell argue in our amicus brief, it’s also a great case for recognizing that the fix is now at hand. And it may well open up an avenue for the Supreme Court to ensure the fix is final.
Readers of Bench Memos well know that the Supreme Court broke the establishment clause about 45 years ago with its decision in Lemon v. Kurtzman. That decision exiled standard constitutional analysis and its focus on historical understanding, and replaced it with a vague, stitched-together purpose/endorsement/entanglement test. As Seventh Circuit judge Frank Easterbrook noted in a 2012 dissent, Lemon’s concoction was simply “made up by the Justices.” And judicial consensus quickly developed that the concoction was inherently unstable and impracticable, leaving courts — to quote now-Justice Gorsuch (who was himself quoting a Sixth Circuit opinion) — in “Establishment Clause purgatory.”
And it’s not like courts cannot figure out what the establishment clause means. Earlier this year, in fact, Tenth Circuit judges Paul Kelly and Timothy Tymkovich drew on Town of Greece and Professor McConnell’s historical research to identify six “general features” of an historical establishment of religion: “‘(1) [state] control over doctrine, governance, and personnel of the church; (2) compulsory church attendance; (3) financial support; (4) prohibitions on worship in dissenting churches; (5) use of church institutions for public functions; and (6) restriction of political participation to members of the established church.’” State action that presents these features will normally violate the establishment clause, and if they are absent, the state action will not constitute an impermissible establishment.Read More