Establishment Clause and Strict Scrutiny

[Hamilton02 at aol.com]

Strict scrutiny fits uneasily (and therefore appears in only one case) in  
Establishment Clause doctrine, because the Establishment Clause is a 
structural  element of the Constitution more akin to the separation of federal 
powers than  the rights-bearing provisions of the Bill of Rights.  If one 
assesses the  doctrine as a whole, it is far more reminiscent of the separation of 
powers  doctrine than it is of the rights clauses.  Just as the separation 
of  powers cases are more complicated and less predictable than the Free  
Exercise or the Free Speech Clauses (even with the latter's minutiae), the  
Establishment Clause is as well.   The challenge to a  cleaner doctrine lies 
in the plasticity of power, which means that the  relevant players are 
constantly operating and changing to overtake the  power of the other.  At a 
fundamental level, church and state operate  no differently than do rival 
branches of the government.  
 
In my view, this is why the attempt to reduce the Establishment Clause to a 
 right of religious entities is a radical movement.  Such  an 
interpretation turns the Establishment Clause into a servant of the Free  Exercise 
Clause, rather than the Constitution's structural means of limiting  religious 
entities from overtaking the government (and vice versa), which was a  live and 
serious concern on the part of James Madison in the Memorial and  
Remonstrance.
 
On the shameless plug side, I have been working on this approach  for a 
decade now and originally in an exchange in the  Conn L. Rev.--  Power, the 
Establishment Clause, and Vouchers, 31  Conn. L. Rev. 807 (1999);  Reply, 31 
Conn L Rev 1001 (1999).  
 
Marci
 
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
 
 
 
 
 
I am curious whether there is any commentary on why Establishment
Clause  doctrine does not include a strict scrutiny framework.  Do list
members  think that the Establishment Clause does not include this
framework because  the clause is a structural guarantee and is thus
different from the many  constitutional provisions that have been
subject to a balancing of government  and individual interests? Or is
it because we just don't think that a  situation would arise in which
promoting religion would actually be necessary  to promote some
governmental interest?  Are there any other ideas about  why the
Establishment Clause is different?

Thanks.

-Jesse  Merriam

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