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LET HISTORY REPEAT ITSELF:
SOLVING ORIGINALISM'S HISTORY
PROBLEM IN INTERPRETING THE
ESTABLISHMENT CLAUSE
NEIL JOSEPH*
INTRODUCTION
The Supreme Court's Establishment Clause jurisprudence is in
shambles and has confounded the lower courts.' The Court does not
employ [an] analytically sequenced, tiered framework for judicial
review as it does in other constitutional contexts.2 The current justices
on the Court have widely divergent views on the Establishment
Clause's meaning,3 and the lone test that the Court created has been
panned by several justices.' Originalist judges, however, have had a
fairly consistent approach to interpreting the Establishment Clause.'
Copyright © 2019 Neil Joseph
* J.D. Candidate, Duke University School of Law, Class of 2020. The author would like to thank
the journal staff for their hard work in editing this article. He would also like to thank Professor
Stephen Sachs for his guidance on this piece.
1. Utah Highway Patrol Ass'n v. Am. Atheists, Inc., 132 S. Ct. 12, 13 (2011) (Thomas, J.,
dissenting from denial of certiorari).
2. Richard H. Fallon, Jr., Tiers for the Establishment Clause, 166 U. PA. L. REV. 59, 60
(2017).
3. Compare Dunn v. Ray, 139 S. Ct. 661, 662 (2019) (Kagan, J., dissenting from denial of
application to stay) (describing the Establishment Clause's core principle as denominational
neutrality) with Frank Ravitch, Judge Kavanaugh on Law and Religion Issues, SCOTUSBLOG
(July 30, 2018), https://www.scotusblog.com/ 2018/07/judge-kavanaugh-on-law-and-religion-
issues/ (describing Judge Kavanaugh's Establishment Clause approach as akin to Judge
Rehnquist's, who rarely agreed that government action violated the Establishment Clause) and
Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J., concurring) (showing Justice
Thomas' view that Establishment Clause interpretation might depend on whether the actor is the
state or federal government).
4. See, e.g., Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993)
(Scalia, J., concurring) (describing the Establishment Clause test from Lemon v. Kurtzman, 403
U.S. 602, 614-615 (1971), as a ghoul in a late night horror movie); Corp. of Presiding Bishop of
Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 346 (1987) (O'Connor, J.,
concurring) (noting the difficulties with the Lemon test); Sch. Dist. of Grand Rapids v. Ball, 473
U.S. 373, 400 (1985) (White, J., dissenting) (expressing consternation with the Lemon test).
5. See infra Part I (describing Scalia and Rehnquist's approaches).](ViewImageLocal?handle=hein.journals/dukjppsid15&div=1&collection=&method=preview&ext=.png&size=3)
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