Religion Recovers Its History: The Court Puts the Establishment Clause on a New Path

For over a half-century, the First Amendment Establishment Clause jurisprudence was in disarray. Judicial decisions more often stemmed from social and cultural presumptions than from constitutional history. For years, if not decades, Supreme Court observers waited for a clarifying opinion on this troubled area of First Amendment law. In a 2022 decision upholding a football coach’s right to silently pray at mid-field after a game, the Court issued a momentous decision that not only overruled much of previous Establishment Clause jurisprudence but also suggested a new path forward.

Given the Court’s desire to base future doctrines on the historical meaning of the Establishment Clause, which focuses more on protecting religious liberty than on keeping religion out of the public square, the new path will likely lead the courts to fashion doctrines that are more accommodating to the role and presence of religion in civil society.