Establishment Clause and Strict Scrutiny

[Anthony Picarello]

The Establishment Clause analysis in Larson v. Valente involved strict scrutiny.  Perhaps it should be limited to EC cases involving denominational preference, perhaps not.  But in any event, strict scrutiny does apply in at least some EC cases.  I suppose that fact would have to be accounted for in any theory explaining the absence of strict scrutiny analysis elsewhere in EC jurisprudence.  

Anthony R. Picarello, Jr.
General Counsel
U.S. Conference of Catholic Bishops
3211 4th Street, NE
Washington, DC  20017-1194

>>> Jesse Merriam <jmerriam at gmail.com> 6/30/2009 10:32 AM >>>
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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