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St. Thomas Law Review

First Page

53

Document Type

Comment

Abstract

The notion of separating Church and State is one that is deeply rooted in American history. Although simple on its face, as the American population grows more diverse, the idea of separation has become a convoluted concept difficult to apply. In an attempt to create a “one-size-fits-all” solution to issues regarding government intruding on the individual’s religious freedoms, the Supreme Court developed a tripartite test to determine whether a statute violated the Establishment Clause. In Lemon v. Kurtzman, the Court combined several tests originating in prior case law to develop the singular, infamous Lemon test. However, in June 2022 with a 6–3 decision in Kennedy v. Bremerton School District, the Court officially abolished the Lemon test and replaced it with a familiar, albeit vague, “history and tradition” test. The Court concluded that an approach emphasizing a “reference to historical practice and understandings” would be more appropriate to determine whether a law violates the Establishment Clause. Although for decades adversaries criticized the Lemon test for being highly subjective and entirely unpredictable, at least it had structure. The new “history and tradition” test now directs judges in lower courts to decide constitutional issues about religion by looking to historical practices and understandings, without further guidance. The unfortunate result of the new test is that judges will cherry-pick moments in history that support their predetermined positions while ignoring the rest of the evidence. As of late, the Supreme Court has increased its reliance on tradition as its guide in decision-making, emphasizing that the only rights that deserve protection are those with a history of judicial safeguards. However, “[w]hat has been done in the past cannot answer normatively what the law should be in the future.” Because the Constitution is meant to protect core values, basic liberties, and equality, for ages to come, the shifting focus on historical practices prevents the Constitution from growing and inhibits essential constitutional evolution. As such, this Comment proposes a new standard for evaluating Establishment Clause issues which combines the Lemon and the “history and tradition” tests to create a multifactorial subjective-objective test. Part II will study the history of the Establishment Clause, the reasons for its enactment, and its application to “moment of silence” laws. Part III will apply the “history and tradition” test to Florida’s recent “moment of silence” statute § 1003.45. Finally, Part IV will introduce the new subjective-objective test and demonstrate why it is a preferred method for effectively resolving Establishment Clause issues.

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