A Variation on the Hopwood Theme
VOLOKH at mail.law.ucla.edu
Wed Jun 28 23:08:41 PDT 2000
Be careful what you wish for! The Lemon "effects" test isn't such a
great success even on its native soil; I somehow doubt that it would bear
good fruit if transplanted . . . . Defenders of the Lemon test in the
Establishment Clause context are many fewer -- either on the Court or in the
academy -- than of the discriminatory intent test in the Equal Protection
Clause field. And for good reason.
Arthur Wolf writes:
> Thus litigants may need to press the Court again to reconsider
> its "intent" based approach to Equal Protection analysis. After all, the
> Supreme Court has allowed an "effects" analysis in the religion cases
> the First Amendment (assuming the Court did not disavow that approach in
> today's decision in the parochial school case).
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