This liberty-focused principle recognizes that, in the early years of the Republic, all three branches of government welcomed devotional exercises to inaugurate their official business. The Founding Fathers encouraged this practice; they saw no inconsistency between ceremonial acknowledgments of the country's religious heritage and the Establishment Clause. Indeed, the Constitution they framed permits acknowledgment of religion as an inherent part of the ceremony that lies at the heart of the civic life of the Republic. The Oath Clauses contemplate that officials of the United States and of the several States may undertake an inherently religious act -- swearing an oath -- when they pledge to uphold the laws and Constitution of the United States. U.S. Const. Art. II, Section 1, Cl. 8; Art. VI, Cl. 3. As these provisions and other historical evidence show, the practice of the early Republic cannot be dismissed as a desultory gesture undertaken without attention to constitutional theory. A proper theory of the Establishment Clause must therefore embrace the validity of this practice and its modern counterparts, rather than treating them as anomalies. The proper approach recognizes that in this setting coercion is the touchstone of an Establishment Clause violation.The argument itself includes a multitude of examples of this, from oaths of office to opening prayers in Congress and the Supreme Court. The brief, in its main argument, even buys into the patently ridiculous notion that our nation has a "religious heritage", stating that "[t]he Founders encouraged civic recognition of the Nation's religious heritage."
The Framers who sanctioned civic acknowledgment of religion on occasions momentous to the Nation -- such as presidential inaugurations, sessions of Congress, and sessions of this Court -- can hardly have intended to bar it on more mundane occasions, such as public school graduations. Yet such a two-tiered system is nonetheless developing from the effort to follow both the approach in Marsh and the Lemon test. The tension can be resolved, and coherence in this area restored, by an approach that focuses on whether religious liberty is implicated by the challenged practice.
I'll just say that I want the words "[t]he problem, of course, is not the language or history of the First Amendment. The problem is Lemon," broadcast on every major network.