Bad History, Bad Opinions: How ‘Law Office History’ Is Leading the Courts Astray on School Board Prayer and the First Amendment

Abstract

The last two years have seen an explosion of judges and lawyers adopting flawed history in cases involving prayer at public school board meetings. At least eleven federal circuit court judges have written or joined opinions relying on fallacious history that they have accepted and repeated without question. This article traces that now pervasive bad history — “law office history” — to a single amicus brief written by the Family Research Council. It examines the history and find that it has no factual basis. It then looks at the wider use of law office history in cases involving the First Amendment religion clauses, focusing on the original Supreme Court case to elevate history over legal principle, Marsh v. Chambers. It concludes with suggested fixes. This article seeks to correct serious errors in the academy and to stop judges from employing self-interested, counterfactual history, which reflects poorly on our legal system.

Keywords: History, Religion, Religious Freedom, Religious Liberty, Church State Separation, First Amendment, Establishment Clause, Religion Clauses, Free Exercise Clause, School Board, Prayer, Government Prayer, Law Office History