In June 2022, the Supreme Court decided three blockbuster constitutional cases. The ones you have surely heard about are Dobbs and Bruen, which, respectively, reversed Roe v. Wade and dramatically expanded Second Amendment gun rights. The third was an establishment...
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In June 2022, the Supreme Court decided three blockbuster constitutional cases. The ones you have surely heard about are Dobbs and Bruen, which, respectively, reversed Roe v. Wade and dramatically expanded Second Amendment gun rights. The third was an establishment of religion clause decision, Kennedy v. Bremerton School District. It made far fewer headlines than did Dobbs and Bruen. It deserves much attention nonetheless, for in it the court announced a revolutionary turn in how it would view questions of religion and public life.
Kennedy concerned a public high school football coach’s practice of praying briefly on the field after each game. He did not invite anyone to join him. But join him they did, especially the players he coached. The spectacle drew the unfavorable attention of school authorities, who thought it amounted to a public adoption of the Christian religion, in violation — they further thought — of the First Amendment’s ban on religious “establishments.” (Coach Kennedy was and is a convinced Christian.) Kennedy lost his job when he refused to abandon his post-game ritual.
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The Supreme Court first considered school prayer as possibly unconstitutional in 1962, when it threw out (in the case of Engle v. Vitale) a teacher-led nondenominational invocation that students were not required to join. The court has taken up school prayer in other contexts several times since, the results of which have varied. The opinions in these cases, however, have been invariably unsatisfying, and often incoherent.
In Kennedy, Justice Neil Gorsuch wrote for the majority that the court’s longstanding doctrinal approach to school prayer cases — as well as to all establishment clause questions — was too “abstract, and ahistorical.” Gorsuch announced that the court was “abandon[ing]” the “Lemon” test. (This test was called “Lemon” not because it doesn’t work well, although that is true, but rather after the 1971 case that minted it, Lemon v. Kurtzman.) All too briefly, that set of standards required each government action to have a “secular” purpose, avoid effectively advancing religion, and steer clear of “excessive entanglements” between public authorities and religion.
No doubt the Lemon test had to go, if only because (as we shall soon see) it was deeply at odds with the founding and the whole constitutional tradition up until around World War II. Judges and lawyers and professors had moved from criticizing Lemon to lamenting it and then, finally, to lampooning it. Justice Antonin Scalia, more than thirty years ago, wrote that “like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our establishment clause jurisprudence once again, frightening the little children and school attorneys.” The commentary had grown more caustic in the decades since.
Henceforth, it was to be all history all the time. The Kennedy Court wrote that the establishment clause must instead be interpreted by “‘reference to historical practices and understandings.’… ‘[T]he line’ that courts and governments ‘must draw between the permissible and the impermissible’ has to ‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’” The justices propose to ride bareback across the early national era, checking to see what the founders thought and did about specific “church–state” issues — like legislative prayer, public support of religious schools, oaths, and public religious monuments.
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Some good outcomes would be obtained in establishment clause cases if the court seriously engaged with the founders’ “practices and understandings.” To do so, however, the court will have to confront, disentangle, and correct an unforced error it made decades ago. It is a mistake that impenetrably blocks the justices from understanding the founders’ “understanding,” for central to that “understanding” is the inestimable place of natural religion — truths about divine realities that reason can grasp without resort to revelation — in it.
Wrapping one’s mind around the salience of natural religion is essential to “understanding” the “practices” of the founders for four reasons.
First, and as historian Owen Anderson aptly wrote, “The United States was founded on natural religion.” From the beginning of our existence as one country (and even before, for that matter) public authorities across the land forthrightly affirmed the truths of natural religion. The “Laws of Nature and of Nature’s God” emboldened the revolutionaries in Philadelphia. Before and after the founding, civil governments in America affirmed truths such as God’s eternal existence and creation of all that there is; God’s providential care for humankind, including promulgation of the moral law for guidance of human affairs; and some form of the afterlife in which the guilty suffered and the virtuous prospered, or what the founders almost always rendered as a “future state of rewards and punishments.”
In the Declaration of Independence, our founders declared, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” Nearly two centuries later, in the 1963 Bible-reading-in-public-schools case School District of Abington Township v. Schempp, the Supreme Court said that the “fact that the Founding Fathers believed devotedly that there was a God and the inalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself.”
When public authority affirmed that there is a God in the national motto (“In God We Trust”) or in the Pledge of Allegiance (“one nation under God), or as did Lincoln throughout his Second Inaugural, lawmakers did not abandon a proper concern for the common good of the polity. Yes, some would say today that affirming the truths of natural religion would be an unalloyed religious act, without any proper “secular” purpose at all. Not so. For one thing, the tenets of natural religion — true propositions about divine realities and the connections between those realities and humankind that can be known through the use of unaided reason — are really truths of philosophy, not religion. They are no more mysterious or dreamy or impractical and no less metaphysical (if you will) than our nation’s founding beliefs in human equality or inalienable rights.
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Besides, the founders did not forsake “secular” law-making purposes when they affirmed natural truths about divine things. In fact, they did not use the term “secular” when they discussed religion and the polity. They knew that there was this world (of time and space and suffering) and that there was a subsequent very different world of final universal justice. Death marked a passage between the two. But that did not establish a hard boundary, in either thought or action, between the “secular” and the “religious.” For the founders, the border between the two realms was porous, with lots of traffic to and fro. God reigned in both worlds. God revealed Himself in the heavens and to the minds of the prophets and in the public ministry of Jesus. God gave to humankind a natural moral law “written on the heart,” according to the apostle Paul. The standard meaning of “secular,” however, is the absence of God, or at least living as if there were no God. This “secularism” was just not part of the founders’ world.
The Founding Fathers firmly believed that governmental care for religion, including public witness to the existence of a Creator God who providentially guides human affairs, was part of the temporal common good. If the founders were pressed further to articulate this arrangement, they likely would have said that religion is a distinct and incommensurate part of human experience, and that public authority has a limited but still important duty to foster religion. There was nothing meaningfully “secular” about it.
The second reason to understand natural religion in the founders’ worldview is that it enables us to appreciate the distinction they drew between it and the particularities of the various “sects.” Before and after 1776, anyone could see that the many churches and religious groups were distinguished one from the other mainly by what each added to natural religion. Some of these additions were matters thought to have been revealed by God to humankind, chiefly by and through divine communication with the prophets and, then, in the public ministry of Jesus of Nazareth. Others were humanly established conventions and rules, accouterments of religious living, both solo and in community. Therefore, one could — and the founders did — contrast “natural religion” with “revealed” and “positive” religion.
The founders wisely judged that their polity could flourish without enforced unanimity about, or a top-down settlement of, these questions. The common good did not require, for example, that the government show favor to a particular form of liturgy. Nor did it necessitate authoritative adoption of any one church’s creed. Theologians might contend over the details of faith and worship, but the lawmaker adhered to an authoritatively stipulated incompetence when it came to matters of religious doctrine, church discipline, modes of worship, and manner of a religious community’s internal governance. The truth or falsity of these matters — even recognizing that they were the kinds of things that could be true or false — was strictly beyond the ken of public authority.
This was the original understanding of the establishment clause. As the Supreme Court expressed it in one nineteenth-century case: “The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.” Just so — and none of it touches the central, public place of natural religion in the founders’ “understandings” and “practices.”
The court smudged that distinction right after World War II and obliterated it in the 1960s. The justices treated matters as different as pronouncing ours a nation “under God” and giving, say, the Episcopal Church exclusive government patronage as indistinguishably, univocally “religious.” Thus did the court render invisible (to the justices, at least) the distinction essential to grasping the original understanding of the establishment clause.
The third reason it is important to understand natural religion according to the founders is that it restores to the religious question open-minded reasoning based upon evidence and argument. The court has for many decades regularly described religion as a noncognitive, subjective, and even fantastical enterprise. The most emblematic statement of this unfortunate descent into religion-as-superstition is from the 1981 case Thomas v. Review Board, in which the court declared that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others” to merit constitutional protection. There is a sense in which that improbable observation fits into a sound legal train of thought. But my reference to it here illustrates what the court has steadily maintained for many decades: when you enter the realm of religion, you have left behind the realm of reason.
Fourth, there was no more widespread conviction among the founding generation than that they lived in a morally ordered universe; thus, the founders recognized the “Laws of Nature and of Nature’s God.” Even the most skeptical among them (such as the quasi-deist Thomas Jefferson) never doubted that there was a transcendent source of meaning and value for human actions. The balance of natural religion — monotheism, human equality, and so on — supplied the additional premises to conclude, with confidence and based upon reason, that there was an objective, universal moral law, and that there was an end to it.
Our Supreme Court declared in a 1992 abortion case (Planned Parenthood v. Casey) that the “heart of [constitutional] liberty” was the right of everyone to make up his or her (or, today, their or its) own mental and moral universe. This acidic subjectivism cum solipsism is not only a cancerous growth on our body politic. It is an utter repudiation of all that the founders thought and practiced.
Gerard V. Bradley is professor of law at the University of Notre Dame.
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