March 28, 2019
Religious minorities, like all Americans, want the law to protect their right to the free exercise of religious beliefs in the public square. But the Lemon test and its related cases and doctrines have led to the scrubbing of religious practice from the public square and do not adequately protect them.
Instead, an Establishment Clause doctrine that, in Thomas Jefferson’s words, reflects the clause’s meaning at the “time when the Constitution was adopted” and “recollect[s] the spirit manifested in the debates” benefits everyone. This is the originalist approach. It ensures judicial objectivity and empowers the political branches to accommodate religious minorities.
Critics of the originalist approach argue that the Lemon test and related cases should stay in place. Yet they shouldn’t, for they are not faithful to the Constitution and fail to protect religious liberty, including for religious minorities. Moreover, the cases we have discussed and the laws and executive action we have highlighted show that the courts should not be the first stop in protecting religious freedom. In fact, they should be the last.
A historical approach for the courts and a reliance on the flexibility and responsiveness of the political branches is the best formula for a robust protection of religion—all religions—in the public square.
This blog series is based on an article in the Federalist Society Review by Alexandra M. McPhee, “Can a New Establishment Clause Jurisprudence Succeed in Protecting Religious Minorities Where Lemon Has Failed?”