Twentieth-century courts play a major role in America's legal and political secularization, formulating and upholding interpretations of the First Amendment Establishment Clause that demand "public neutrality on the widest possible range of moral issues." Judicial inconsistency in how the Religion Clause is understood does little to remedy this secularization dilemma. Over the past century, courts have applied a variety of interpretations to the Establishment Clause. This Comment addresses these and other problems raised under current Establishment Clause tests, focusing on the accommodationist/separationist, unitary/disassociation, and rights-based/structural interpretive debates. It ultimately concludes that a structural unitary-accommodative approach to the Establishment Clause may p...
Introduction. I. History of the Supreme Court's Establishment Clause Jurisprudence. A. The Lemon Test. B. The Endorsement Test. II. The Freethought Decision: Facts and Analysis. A. The Facts of Freethought. B. The Third Circuit's Analysis III. Problems with the Freethought Decision A. The Freethought Court Misapplied the Endorsement Test 1. The court failed to distinguish between "history" and "context" in conducting its endorsement analysis. 2. The court erred by assigning unrealistic knowledge to the "reasonable observer". B. The Court Did Not Fully Apply the Lemon Test. C. The Court Overextended the Holding of Marsh v. Chambers. D. Comparison to Similar Cases in other Circuits. IV. De Minimis Violation of the Establishment Clause?. A. History of the Maxim. B. The Use of the De Minimi...
After discussing the relevant facts and lower court opinions of McCreary County v. ACLU and Van Orden v. Perry, this Article examines and evaluates the Supreme Court's Ten Commandments decisions, with particular attention given to the Court's use of the Founding Fathers and to the unannounced doctrinal alterations made in Establishment Clause jurisprudence. The Article also speculates as to how the Supreme Court might decide future Ten Commandments cases and other religious display cases in light of the appointments of Chief Justice John Roberts and Justice Samuel Alito to the bench.
... violates the First Amendment's Establishment Clause and an injunction requiring its removal. Ho... scheme of Establishment Clause jurisprudence, we think it not useful in dealing with the sort o...
Over the past two decades, the Supreme Court's approach to government funding of secular services provided by religious institutions has shifted from tight restrictions on aid to general approval of nondiscriminatory aid delivered through mechanisms of private choice. This shift stems partly from an influx of more conservative justices, but more fundamentally, from a realignment of religious conflict and political factions that reframed the issue and took the Court back to an alternative that had been available since the very origins of modern Establishment Clause jurisprudence. A decline in anti-Catholic sentiment and the emergence of a pro-aid coalition that includes evangelicals, black parents, and free-marketeers have helped key Justices to see the issue differently, to recharacteri...
Over the past few years, the American Civil Liberties Union has intensified its attacks on religious symbols throughout America, arguing that religious activities or symbols that are implicitly or explicitly sanctioned by the government are prohibited by the Establishment Clause of the U.S. Constitution. From local communities that display nativity scenes to city seals that bear religious insignia, no public display of religion is exempt. Most recently, the ACLU has targeted the Los Angeles County seal, which bears an image of the cross. The ACLU seems to aim at nothing short of a complete eradication of religion from the public sphere. The ACLU's war against religion reveals the unfortunate twist that Establishment Clause jurisprudence has taken in recent years. Instead of being read t...
The New York Court of Appeals held in Griffin v. Coughlin that mandated AA meetings as part of a prison treatment program for alcohol and substance abuse are a violation of the Establishment Clause. The decision represents an unwelcome deviation from previous Establishment Clause jurisprudence, one that will have a negative effect on the treatment of alcoholism and substance abuse, in which society has a compelling interest. The court relied on an inappropriate analogy with school prayer, despite the significant differences between a public school and prison environment.
In a presentation at the American Association of Law Schools' 2004 Law and Religion Section Meeting, Fred Gedicks, professor at the J Reuben Clark Law School of Brigham Young University, identified what he called a constitutional gag reflex, or the instinctive intellectual revulsion one might feel in response to the doctrine or holding of a case. Gedicks argued that over the last 20 years, the central question of Establishment Clause jurisprudence has shifted from a concern with the meaning of separation of church and state to a concern with treating religion neurally or equally with respect to secular activities. The problem with neutrality, Gedicks argued, is that, taken to its logical extreme, neutrality could justify outcomes that would trigger an Establishment Clause gag reflex. A ...
In the January 2007 issue of the Journal of LAW AND EDUCATION, Heather Cook, an Assistant District Attorney in the Bronx County District Attorney's Office, argued that the practices and policies of the United States Air Force Academy (USAFA) are in violation of the Establishment Clause.1 More specifically, Cook's multi-part article 1 cited various sources that reported consistent, continuing, and coercive proselytizing at USAFA, such that the dismissed former executive officer to the chief chaplain characterized evangelicalism as "the official religion of the [USAFA];"2 2 described the lawsuit filed by a 1977 alumnus of USAFA3 that the federal district court dismissed on October 27, 2006 and that is currently on appeal;4 3 highlighted the special, coercive characteristics of military co...
... Court's Establishment Clause jurisprudence for public schools;6 5) analyzed the case law conc...
... for interpreting the Equal Protection Clause to enter into dialogue with those who do. . Critic... not called for a wholly colorblind jurisprudence, appearances to the contrary notwithstanding. (60)... a cohesion-related account of establishment. Social cohesion-and the potential for political d...
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