A Theory of Establishment Clause Adjudication: Individualism, Social Contract, and the Significance of Coercion in Identifying Threats to Religious Liberty
Posted on 25. May, 2009 by James Miller
|Title||A Theory of Establishment Clause Adjudication: Individualism, Social Contract, and the Significance of Coercion in Identifying Threats to Religious Liberty|
|Publication Type||Journal Article|
|Year of Publication||1992|
|Journal||California Law Review|
The Supreme Court has struggled to produce a coherent and consistent Establishment Clause jurisprudence to regulate the interaction between religion and government. This Comment suggests that a specific value-religious liberty-should animate the Court's decisions in the area. The Comment begins by highlighting the analytic shortcomings and logical inconsistencies in the major Establishment Clause cases. It then argues that while contractarian political philosophy and an overriding concern with freedom of conscience lie at the root of the Establishment Clause, existing judicial tests do not adequately protect the corresponding core value of religious liberty. The Comment suggests that an alternative test, one based on the presence of coercion, better promotes religious liberty. The Comment explores the difficulties with previous formulations of a coercion-based test and suggests how a superior test might be drafted. It then articulates a new standard under which government actions are deemed to establish religion if they impermissibly coerce individuals' religious beliefs or activities. Finally, the Comment demonstrates the proposed test's usefulness by applying it to specific fact patterns.