Establishment Clause Research Articles

Same-Sex Marriage, Second-Class Citizenship, and Law’s Social Meanings

Government acts, statements, and symbols that carry the social meaning of second-class citizenship may, as a consequence of that fact, violate the Establishment Clause or the constitutional requirement of equal protection. Yet social meaning is often contested. Do laws permitting same-sex couples to form civil unions but not to enter marriages convey the social meaning that gays and lesbians are second-class citizens, as some courts have held? Do official displays of the Confederate battle flag unconstitutionally convey support for slavery and white supremacy? Different audiences reach different conclusions about the meaning of these and other contested statements and symbols. Accordingly, to implement the existing cross-ideological consensus that the Constitution forbids at least some government acts, statements, and symbols that convey the social meaning of second-class citizenship, one needs some method for selecting the relevant audience. No method is perfect, but this Article tentatively advances a reasonable victim perspective as the presumptive starting point for constitutional analysis.

School Vouchers in a Climate of Political Change

Legal scrutiny of school voucher policies initially focused on the establishment clause concerning with allocating public dollars to schools sponsored by religious organizations. In recent years, advocates asserted that the exclusion of faith-based organizations from voucher plans that permit expenditures in secular private organizations violates equal protection and free exercise guarantees. In addition to legal arguments is today's imperative to reform education in ways that promote safe and effective learning environments. Proponents contend that open competition would place healthy pressure on both public and private schools, thus improving outcomes for all children. In contrast, opponents point to the diversion of tax dollars from public schools to support efforts to privatize and abandon the common school just to advance the interests of a small segment of the population. They also view voucher plans as highly divisive in fostering government entanglement with churches and serving as a catalyst for re-segregating public schools. The framework for initial analyses in this article is the evolution of voucher plans, including a historical account of the social unrest that increased demand for public support of privately sponsored schooling through the early 20th century. The perspective shifts from social and economic contexts to state and federal constitutional bases for legal challenges and the reluctance of courts to embrace free exercise and equal protection claims of voucher advocates. Next, there is a description of the legal strategies available to today's voucher rivals in the aftermath of Zelman v. Simmons-Harris (2002), which effectively eliminated federal barriers to voucher expansion. The final section describes the parallel course of early school finance lawsuits and our forecast of school voucher litigation in tandem with a discussion of the political struggles around school choice which offer the most promise for influencing judicial outcomes in state courts nationwide.

Doubt as Methodology and Object in the Phenomenology of Religion

The Holy Grail in the phenomenology of religion (and, to a lesser extent, the sociology of religion) is a definition of religion that actually works, but, so far, this seems to have been elusive. Classical definitions of religion—substantive (e.g. Tylor) and functionalist (e.g. Durkheim)—fail, in part because they attempt to be in three places at once, as it were: they attempt to distinguish religion from non-religion; they attempt to capture what religions have in common; and they attempt to grasp the 'heart', or 'core', of religion. Consequently, family resemblance definitions of religion replace certainty and precision for its own sake with a more pragmatic and heuristic approach, embracing doubt and putting forward definitions that give us a better understanding (Verstehen) of religion. In this paper, I summarise some 'new' definitions of religion that take this approach, before proposing and defending another one, defining religion as non-propositional and 'apophatic', thus accepting that doubt is central to religion itself, as well as to the analysis of religion.

The Reasonable Believer: Faith, Formalism, and Endorsement of Religion

The reasonable observer standard, used in Establishment Clause cases to determine whether government action endorses religion, marks a retreat by the Court from vigorous scrutiny of government purpose and effect. The standard, which examines whether a reasonable observer, familiar with First Amendment values and with the history and context of government action, perceives endorsement, embodies a shift toward formalism in Establishment Clause doctrine.This Essay argues that the reasonable observer standard, which bypasses the role of faith in perception, undermines the protection of a core Establishment Clause value - inclusion. The reasonable observer standard, representing the abstracted perspectives of a community of indeterminate faith, decreases the significance of the effect of government action, particularly on the nonadherent. Application of the standard thus tends to validate the perspective of the majority. The value of inclusion is best served by an inquiry into purpose and effect that considers the perceptions of both adherents and nonadherents.

The Right to Learn: Intellectual Honesty and the First Amendment

Science education is one of the most hotly contested issues in public debate. Even after decades of jurisprudence and scholarly analysis, politicians still ignite public passions by suggesting that creationism or intelligent design theory be taught alongside of evolution in public school science classrooms. Despite political rhetoric, the Establishment Clause has been steadfastly used to prevent religion masquerading as science from entering the science classroom. However, public officials have launched attacks recently on other scientific theories, such as climate change, that are not religiously motivated. Students are left in these instances without resort to the Establishment Clause and are potentially forced to learn propaganda and non-science in science classrooms. This Article confronts the vexing problem that students are protected from non-science that is religiously based and not non-science that is politically motivated, even though they are both equally damaging to the students’ education. There is no intellectual or constitutional basis for banning some kinds of pseudo-science and allowing others within a compulsory public science class. This Article is the first to argue that students in public school science classrooms are entitled to an accurate and honest rendering of the scientific facts free from propaganda, proselytizing and politics under the Free Speech Clause of the First Amendment. Simply because a scientific theory is attacked for political motivations does not render it constitutionally permissible. So long as students are required by compulsory education laws to attend science class, the state is constitutionally required to protect the students’ right to learn. This “right to learn” is rooted in a long and distinguished line of cases. Not only does it have a judicial pedigree, but the right to learn rooted in the Free Speech Clause shifts the constitutional analysis from the difficult task of determining motivations to the pursuit of scientific accuracy.

Celebrating Holidays or Holy Days?

South Orange-Maplewood, N.J., is religiously and ethnically diverse community in the New York City suburbs. school district's policy for holidays requires secular, educational treatment. December concerts that featured Christmas and Hanukkah songs elicited few objections. However, after the December 2003 concert, mother complained in writing to the superintendent, pointing out that board policy prohibits music programs from having a orientation or focus on holidays. superintendent responded by saying that the concert didn't promote particular religion and that recognizing all religions in such concert would be difficult. That apparently didn't resolve the parent's concerns because she pressed board members about this issue. In March 2004, during the superintendent's performance review, the board called for stricter enforcement of its policy. By October 2004, the music director indicated in memo that musical groups would perform music that didn't celebrate holiday and discontinue selections associated with holidays, including the traditional winter performances of Christmas carols and the gospel choir. That prompted various parents, teachers, and other local figures to petition the board to honor what they termed religious tolerance. December 2004 concert included general music, such as Vivaldi's Gloria in Excelsio and the Hebrew folk song Hava Nagila, along with secular holiday songs, such as Jingle Bell Rock, Rudolph the Red-Nosed Reindeer, and Frosty the Snowman. After the December 2004 concert, parent Michael Stratechuk, with legal representation from the American Catholic Lawyers Association, filed suit in federal court, claiming that the district had violated 1) the First Amendment's Establishment Clause by conveying disapproval of and hostility toward religion, including Christianity, and 2) First Amendment freedom of expression by depriving him and his children of their rights to academic freedom and learning. district court eventually concluded that the board policy didn't violate the First Amendment establishment or expression clauses. Stratechuk appealed. Decision of the Court On Nov. 24, 2009, the Third Circuit affirmed the lower court's decision. (1) First, the court concluded that the district's policy and conduct did not violate either of the two leading judicial tests, or criteria, for applying the Establishment Clause. saving grace for the district was its decision to allow music in the and at the concerts, thus demonstrating neutral purpose rather than position that favored or disfavored religion. Second, the court more easily disposed of Stratechuk's freedom of expression claim, concluding that students have access to celebratory music in the classroom within the framework of the curriculum and that previous case law supported the board's action. On March 29, 2010, Stratechuk petitioned for U.S. Supreme Court review. Court has not yet announced whether it will grant the petition, but the odds are clearly against doing so. Lessons of the Case winter holidays present many situations in which public schools must balance the First Amendment's Establishment Clause and its opposite protections of free exercise of religion specifically and freedom of expression more generally. As this column has observed more than once, the variance in the local community's composition, the case's unique facts, and the individual judge's background all affect the outcome in religion cases. Nevertheless, the principal criterion is predictable: Would reasonable, dissenting student perceive the challenged activity as having primarily effect or being an endorsement of religion? protection is for the individual, not the majority; as the Third Circuit observed, The constitutionality of school board's policy toward religion cannot be decided by reference to popular opinion. …

P.S. Untold Stories and the Cross National Monument

This Article was submitted as a preliminary draft due to its potential relevance to the Salazar v. Buono remand. It is now superseded by Cross National Memorial: At the Intersection of Speech and Religion, (SSRN 1856844) (June 1, 2011). It remains posted here based on the remote chance that it was used during October 2010-June 2011. Original Abstract: This Article offers an interesting post script to the Supreme Court’s Salazar v. Buono Establishment Clause decision. It presents some surprising non-record facts and additional issues raised by Congress’s 2002 designation of the Mojave Cross as a “National Memorial.” This Act deserves more exploration, particularly because it appears wholly extraneous to the government policy approved by the Supreme Court plurality: ending the appearance of government endorsement of religion, while simultaneously “avoid[ing] the disturbing symbolism associated with the destruction of the historic monument.” Included in the new information is evidence that National Memorial status is not as lofty or rare as it would seem, the cross does not appear to be the sole WWI memorial for the nation, and in the past, Congress has abolished National Memorial status upon transferring the land. The Article also looks at the intersection of historic preservation law and Congress’ requirement that the Secretary of the Interior fund and install a new replica cross on Sunrise Rock.

Cross Purposes: Remedying the Endorsement of Symbolic Religious Speech

Justice O’Connor’s “perception of endorsement” standard governs the analysis of religious displays on public property for purposes of the Establishment Clause. The test rests on the perceptions of an “objective observer,” endowed with essentially perfect factual information, who assesses whether the display of religious imagery reasonably implies official endorsement of its message. Applying this standard, a well-developed jurisprudence unambiguously proscribes the permanent placement of religious symbols on public land. The remediation of these violations, however, is an ad hoc and often superficial exercise. This Article proposes a framework to realign the remedial inquiry with the rigorous assessment of the proscription itself. The proposal rests on the premise that O’Connor’s observer not only discerns the violation but must also arbitrate its remedy. Framing the analysis from the vantage of an essentially omniscient observer yields important insights. Most generally, the analysis so framed requires that a proposed remedy withstand exacting review to assure that it does not subtly perpetuate religious preference. To survive such scrutiny, a remedy must accomplish two interrelated objectives – it must create evident and substantial physical separation between government and the display, and it must do so through means that are strictly neutral with respect to the religious expression at issue. Application of this analysis to the remedies proposed and enforced in recent litigation highlights significant deficiencies in existing law as well as a continuing effort by defendants to dilute the consequences of the constitutional proscription. The most troubling of the proposals – and the handful of decisions sanctioning them – trivialize rather than vindicate the endorsement prohibition.

Moment of Silence

The paper looks at the establishment of religion clause in the First Amendment to the US Constitution, and cases, e.g. Brown v. Gilmore, followed by Croft v. Perry and Sherman v. Koch, cases that relate to the concept of the “moment of silence” in educational institutions in which it was claimed that such events constitute a breach of the establishment clause. Courts have been inconsistent in their decision-making, which may indicate a lack of transparency not only in the interpretation of the relevant phrase in the Constitution but also in the judicial interpretation of the “three-pronged test” with regard to “excessive entanglement” as laid out in Lemon v. Kurtzman of 1971. The paper discusses the “moment of silence” within the framework of a model of silence in which this type of silence would be labeled as either textual or situational silence.

Justice Rutledge's Appendix

Much disagreement and dispute have occurred since the Supreme Court inaugurated the modern era of Establishment Clause doctrine in 1947 in Everson v. Board of Education. Yet rather than turn elsewhere, this article argues that the best path to clarification of this doctrine lies in a return to basics, a return to what that case put forward as the basis of the meaning of the Establishment Clause - Madison’s role in the religious liberty struggle in Virginia in the 1780’s and, above all, in his Memorial and Remonstrance. But this examination focuses on what the justices in Everson did not - the principle of equal religious liberty that underpins that document and Madison’s view of church/state relations generally.

Sharing Sacred Secrets: Is It (Past) Time for a Dangerous Person Exception to the Clergy-Penitent Privilege?

TABLE OF CONTENTS INTRODUCTION I. PURPOSE AND HISTORY OF THE CLERGY-PENITENT PRIVILEGE A. Rationale for the Privilege B. History of the Privilege II. STATE STATUTES TODAY A. The Discipline Enjoined Requirement B. Types of Protected Communications C. Who Holds the Privilege? D. Who Constitutes a Cleric? III. THE EVOLVING FEDERAL PRIVILEGE IV. CLERGY OBLIGATIONS WITH RESPECT TO DANGEROUS PERSONS: LESSONS LEARNED FROM THE MANDATED REPORTING STATUTES V. LESSONS LEARNED FROM THE OTHER PROFESSIONS: THE HOMICIDAL SPOUSE EXAMPLE A. Responsibilities of the Psychotherapist B. Responsibilities of the Attorney C. Responsibilities of the Clergy VI. CLOSING THE GAP VII. CONSTITUTIONAL CONSIDERATIONS A. The Free Exercise Clause B. The Establishment Clause CONCLUSION Nothing is concealed that will not be revealed, and nothing hidden that will not become known. (1) INTRODUCTION The growing crisis of pedophilia in the Roman Catholic Church (2) has cast renewed focus on the clergy-penitent privilege in America. (3) As many state legislatures scramble to consider proposed amendments to their child abuse reporting statutes that would designate clergy as mandated reporters, (4) the scandal has prompted widespread debate about whether information learned from otherwise privileged communications should be excluded from the statutory obligation to report. (5) This debate has highlighted the tension between respecting clergy confidences and protecting the public welfare. In this Article, I suggest that it is time to revisit the clergy-penitent privilege, and to question seriously whether its presently broad application truly serves the public interest. The clergy-penitent privilege is deeply engrained in American culture. (6) Although the privilege has its origins in the seal of the confessional of the Roman Catholic Church, (7) statutory forms of the privilege in most states now protect any confidential communications with a clergy member for the purposes of penitential confession or spiritual advice from compelled disclosure. (8) In recent years, another area of growth in the doctrine has been in the expanding definition of who constitutes a cleric for purposes of the privilege. (9) Many nonhierarchical religions rely on peer counseling rather than counseling by ordained ministers. (10) Other churches are experiencing a scarcity of ordained clergy, and increasingly are relying on lay ministers to perform certain spiritual functions previously performed only by the officially ordained. (11) Just as courts and legislatures over the past several decades have expanded the definition of what constitutes a protected communication, many states have taken a similarly broad view of who constitutes a clergy member for purposes of their clergy-penitent privilege statutes. (12) As a consequence of this interpretive growth, more types of religious officers and functionaries are now recognized as ministers, and more types of communications, such as marital counseling sessions, are recognized as falling within the ambit of spiritual counseling or advice. (13) This expanding application of the privilege during the twentieth century has been motivated in part by a growing respect for the diversity of religious affiliation and spiritual belief in our society, if not an explicit concern for potential collision with the Free Exercise and Establishment Clauses of the First Amendment. (14) The doctrinal creep of the clergy-penitent privilege described in this Article has come with serious collateral costs. (15) Whenever more types of conversations with more types of religious or quasi-religious functionaries are protected from disclosure, society pays a price in terms of relevant and highly probative evidence being excluded from the fact-finding process. (16) Because ministers are often intimately involved in the lives of many citizens, they frequently have relevant and highly probative evidence to offer a judicial tribunal on a wide variety of subjects including, among others, paternity, domestic violence, child abuse, child custody, and will contests. …

Beyond the Jurisprudence of Politeness: On the Relativity of Religious Neutrality

It is a well known lament of conservatives that the intellectual classes have, through the courts alongside other means, instituted a regime, perhaps a religion, of secularism or secular humanism, the advancement of which is predicated upon the disparagement of traditional religion and its devotees. While some liberals would agree that the courts have at times been insufficiently sensitive to the nature and needs of religion, the liberal instinct is to dismiss as extravagant these more robust claims to the effect that the public schools have been infiltrated by an evangelizing, quasi-conspiratorial secular humanism, or that the Establishment Clause has become a tool of oppression operating surreptitiously in the service of this and other plots. To these claims, secular liberals respond that, assuming some sense can be given to the notion of a secular religiosity, this is a label best reserved for countries like Turkey or France, which have sometimes directly suppressed certain forms of religious self-expression, like the wearing of headscarves. But since such policies and the attitudes underlying them would never be tolerated in the United States, warnings about the encroachment of an ideological secularism are dismissed as merely another iteration of conservatism’s politically expedient false populism.But these dismissals are, I argue, facile. For doctrinal disagreements about what qualifies as genuine religious neutrality – as opposed to, say, “hostility toward religion” or a “religion of secularism” – are necessarily a function of a broader set of philosophical and historical disagreements concerning whether secularity is best conceived as the bare elimination of religion – what Charles Taylor calls “subtraction stories” – or instead as the outgrowth of – as the secularization of – particular religious traditions, which, though having become secularized, retain an underlying religiosity. Conservative grievances about the surreptitious encroachment of “secular humanism” or a “religion of secularism” become more intelligible when interpreted against the backdrop of this second theory of secularity, which casts the case law in a different light than does the first.

Litigating the Schism: Orthodoxy and Property in the Episcopal Church USA – Reforming the Dennis Canon

This paper assesses the abilities of courts currently to resolve property disputes in the Episcopal Church USA, arguing that current establishment clause jurisprudential limitations necessitate that churches seek internal resolution of these matters and rely less upon secular courts as a result. It makes various suggestions towards improving the current practices.

Lawsuit Challenges Income Tax Preferences for Clergy

Sections 107 and 265(a)(6)(B) of the Internal Revenue Code are unconstitutional because they are narrow income tax preferences for clergy that violate the First Amendment’s Establishment Clause. They are analogous to the Texas sales tax exemption for religious literature struck down in Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989). Federal taxpayers should be held to have standing to challenge these sections under Flast v. Cohen, 392 U.S. 83 (1968), and Winn v. Arizona Christian School Tuition Organization, 562 F.3d 1002 (9th Cir. 2009), cert. granted, May 24, 2010. Winn was correctly decided.Under section 107, clergy receive tax-exempt housing allowances from their churches and obtain the use of housing on a tax-exempt basis. These are exceptions to the taxation of compensation income. Under section 265(a)(6)(B), clergy are allowed to deduct mortgage interest and property taxes paid from, and allocable to, tax-exempt housing allowances. Clergy are thus granted tax privileges denied to taxpayers generally. Taxpayers other than clergy cannot ordinarily receive tax-exempt housing allowances and they cannot deduct expenses allocable to tax-exempt income. Only clergy and members of the military are allowed deductions for expenses allocable to tax-exempt income.In Freedom From Religion Foundation v. Geithner, a California district court correctly denied the federal government’s motion to dismiss the plaintiff taxpayers’ claims that section 107 is unconstitutional. The court correctly concluded that the plaintiffs have standing to sue as federal taxpayers and the complaint could not be dismissed for failure to state a claim. The court incorrectly granted the government’s motion to dismiss the plaintiff taxpayers’ claims that section 265(a)(6)(B) is unconstitutional; the court incorrectly held that the complaint failed to state a claim upon which relief can be granted.

From Substance to Shadows: An Essay on Salazar v. Buono and Establishment Clause Remedies

Most disputes about the Establishment Clause center on its substantive meaning; whether, for example, a state subsidy promotes religion, the phrase “In God We Trust” can appear on currency, or a display of the Ten Commandments is unconstitutional. Often overlooked and lurking behind these substantive disputes is a question about what remedies are available when an Establishment Clause violation is found. Typically, an injunction prohibiting the subsidy, practice, or display is the choice. In Salazar v. Buono, however, the Supreme Court was confronted with an unusual case for two reasons. First, the doctrine of res judicata formally barred the Court from reaching the substantive finding that a Latin cross on federal property violated the Establishment Clause. Second, because the district court had declared invalid a federal statute transfering the land to a private party, and--unable to address the substantive ruling--the Court was forced to address the law of remedies in an *290 atypical posture. Reversing the lower courts, in Buono a plurality of the Court held that the district court erred when it invalidated the land transfer. This Essay critically analyzes Buono and argues that the plurality failed to appreciate the remedial significance of the challenge to the land transfer. The plurality, it seems, attempted to re-litigate the substantive Establishment Clause violation despite the res judicata bar. In so doing, I argue, the Court put form over substance and ignored the essential command of the Establishment Clause--government neutrality. To make my case, I draw on political theory to clarify the concept of neutrality, and propose a novel way of thinking about Establishment Clause remedies by drawing on decisions considering the extent of Congress's Section 5 Enforcement Power under the Fourteenth Amendment. I conclude by trying to blur the sharp distinction the plurality draws between public and private space. Buono is a significant case, but not because it contributes to or clarifies the law regarding the Establishment Clause. Instead, Buono is significant because it demonstrates how important remedial flexibility is to ensuring rights, while at the same time exemplifying the perils of remedial formalism.

In Rob We Trust

In 1990, the Illinois legislature changed the name and wording of its meditation statute. Silent Reflection Act, which dates back to 1969, changed to Silent Reflection and Student Prayer Act. The 1969 version provided that public school teachers observe a period of silence. ... not as a religious exercise but ... as an opportunity for or for reflection on the anticipated activities of the The amended version added this provision: Student ... [S]tudents in the public schools may voluntarily engage in individually initiated, nondisruptive that, consistent with the Free Exercise and Establishment Clauses of the United States and Illinois Constitutions, is not sponsored, promoted, or endorsed in any manner by the school or any school employee. In 2007, the legislature amended the first sentence so that public school teachers shall observe a period of silence, thus making it mandatory. As a result, Township High School District 214 in the northern Chicago suburbs began implementing the new law by announcing a moment of at the start of each school day. Robert I. Sherman, on behalf of his daughter, who was a in the district, sued both the district and the state in federal court, claiming the statute violated the Establishment Clause and was unconstitutionally vague. The Court's Rulings On Nov. 15, 2007, the federal district court granted Sherman's motion for a preliminary injunction and denied the defendants' motion for dismissal. (1) Soon thereafter, the court granted the motion for two organizations to appear as amici curiae--the ACLU of Illinois for the plaintiff, Sherman, and the Alliance Defense Fund for the defendants. On March 28, 2008, the court granted Sherman's motion to certify the suit as a bilateral class action, which means that it affected students generally and Illinois districts generally. (2) The defendants submitted expert reports to the court on the effects of the statute on schoolchildren of various ages. In addition, the state superintendent provided results of a survey he conducted of the 873 districts in Illinois on how they interpreted and observed the statute's mandates. On Jan. 21, 2009, the court issued a summary judgment in Sherman's favor. (3) First, the court concluded that the amended statute violated the Establishment Clause for two alternative reasons: 1) The plain language suggests an intent to force the introduction of by requiring the teacher to explain to students the limited boundaries of silent prayer and silent reflection, and 2) the legislative history evidences this fatal intent by first adding student prayer to the title of the act and then changing the primary provision from permissive to mandatory. The court also concluded that the act was unconstitutionally vague because it provides no direction as to how the 'period' of silence would be implemented, how long the period should last, and whether pupils would be permitted to pray in a manner that was either audible or required movement. In reaching its conclusions about the Establishment Clause, the court credited the plaintiff's expert, a child and adolescent psychiatrist who opined that elementary school students will not understand reflection in relation to prayer; middle school students will be subjected to peer pressure to pray; and that high school students may act out in defiance. Conversely, the court found the defendant's expert report of negligible value because the psychologist had little experience with children and adolescents, and her opinion that some students could benefit from the statute didn't change the applicable analysis under the Establishment Clause. The defendants' appeal is pending at the Seventh Circuit. The odds appear to favor Sherman's side, but objectivity and certainty are difficult in religion cases. …

From the Classroom to the Courtroom: Intelligent Design and the Constitution

Although the Supreme Court of the United States has never developed a single clear test for determining what kinds of state action violate the Establishment Clause of the First Amendment, schools that attempt to teach or introduce intelligent design as a purportedly scientific alternative to evolution likely fall afoul of the First Amendment's commands. Under the Court's most relevant precedent, Edwards v. Aguillard, teaching intelligent design violates the Establishment Clause because, among other things, there is an enormous disconnect between the purpose of teaching intelligent design and its effect. Moreover, public school teachers do not possess any First Amendment right of academic freedom to disregard the clear instructions of a school principal or district not to teach or introduce intelligent design in their classrooms.

Of Football, ‘Footnote One,’ and the Counter-Jurisdictional Establishment Clause: The Story of Santa Fe Independent School District v. Doe

This article is a chapter in the forthcoming collection First Amendment Stories. It tells the story of Santa Fe Independent School District v. Doe, a case in which the United States Supreme Court struck down a school policy establishing an election mechanism that enabled student-led prayers before football games. It offers both a doctrinal and a human perspective on the case. In particular, this article focuses on two issues. First, it argues that the first footnote in the Supreme Court’s opinion in Santa Fe, recounting the strenuous efforts that both school officials and private citizens undertook to “ferret out” the identity of the anonymous plaintiffs in the case, deserves greater attention. “Footnote One” speaks volumes about why the election mechanism the school district tried to employ as a “circuit-breaker” between government speech and private speech failed, and more broadly about the meaning of the Establishment Clause in overwhelmingly religiously homogeneous jurisdictions. Second, it argues that for similar reasons, there are good grounds for thinking about the Establishment Clause in a “counter-jurisdictional” fashion: that is, despite its own language, the Establishment Clause should, if anything, be more strictly maintained at the state and local level than at the national level. This suggestion, which follows from the lumpy rather than even nature of religious diversity in the United States, runs counter to an increasing trend on the Court and in legal scholarship in favor of a “jurisdictional” reading of the Establishment Clause which would apply it more loosely at the state and local level than at the national level.

Exposing the Underground Establishment Clause in the Supreme Court’s Abortion Cases

In Roe v. Wade, the Supreme Court held that women have a constitutional right to abortion based on the Due Process Clause. To arrive at this conclusion, the Court implicitly relied on concepts that properly belong to the Establishment Clause - in particular, the Establishment Clause requirement that all laws must be supported by secular purposes, not religious ones. This Article is the first attempt to describe and critically evaluate the Court’s use of Establishment Clause ideas in Roe and later abortion cases. Some brief background is essential in order to grasp the structure and significance of the underlying Establishment Clause dynamic of Roe. The Due Process Clause allows the government to restrict fundamental constitutional liberties (such as abortion) if it has a compelling reason for doing so. States have defended their abortion laws by arguing that protecting unborn human life against homicide is a compelling reason to restrict abortion. This argument, advanced in Roe, directly presented the Supreme Court with the question of whether fetuses are human beings entitled to protection against homicide. The Court, however, refused to answer the question and provided a convoluted, ambiguous explanation for its refusal. Careful interpretation of these ambiguous passages reveals the Court’s underlying concern that neither the judiciary nor the legislature may decide the question of fetal humanity because it is a controversial religious question. When the Court’s rationale is clarified and plainly stated in this way, it becomes clear that Roe’s method of analysis - rejecting the state’s interest not because it is false or unimportant, but because it is religious and therefore an inappropriate basis for political judgment - is identical to the Establishment Clause requirement that legislation must be based on a secular purpose. However, the Court’s analysis is problematic, because Establishment Clause principles are consistent with governmental protection of fetal life. The humanity of the fetus can be plausibly supported, not only on religious grounds, but also on the secular grounds of philosophical, historical, and experiential reasoning. To be clear, I do not argue that these secular grounds prove beyond dispute that fetuses are human beings. Instead, I defend the more modest proposition that a debatable secular case can be made for viewing fetuses as human beings. This conclusion is not strong enough to justify criminalization or restriction of abortion (which is beyond the scope of this Article), but it does prove that such criminalization or restriction would not violate the Establishment Clause. Thus, the Court should revisit the fundamental question that it evaded in Roe and later cases: is the fetus a human being, such that legislatures have a compelling interest in protecting fetal life against abortion?

Assisted Suicide, Morality and Law: Why Prohibiting Assisted Suicide Violates the Establishment Clause

Laws that criminalize assisted suicide should be struck down under the First Amendment’s Establishment Clause. These laws fail the secular purpose strand of the Lemon test and the anti-coercion strand that Lee v. Wiseman established under the accommodation test. While it is true that laws against assisted suicide don’t involve performance of a religious ritual, they codify a highly specific interpretation of Christian doctrine. This article uses an historical analysis to demonstrate that prohibitions against suicide and assisted suicide emerged from a conception of Christianity that defined actions as moral only if they served a higher purpose. In the modern world, this conception has been replaced by a rival morality centered on individual self-fulfillment, which accepts rather than condemns an individual’s decision to end his or her life under certain circumstances. The advent of the new morality clarifies the specificity of the prior morality and highlights its religious origin. Based on this analysis, it seems clear that according to an historically and contextually established definition of religion in our contemporary society (the only defensible type of definition) laws against assisted suicide are efforts to compel obedience to a particular religious ideology, and should be struck down on that basis.