Establishment Clause and Strict Scrutiny

[Christopher Lund]

It may not be as deliberate as all that.  At least one Establishment Clause case * Larson v. Valente, 456 U.S. 228 (1982) * actually did apply a strict scrutiny framework.  Larson involved a law that distinguished between religions; the Court struck it down, and famously said that "the clearest command of establishment clause is that one religious denomination cannot be officially preferred over another."
 
This has always been a mystery to me.  Why strict scrutiny here and not other places?  And if denominational discrimination is the core of the Establishment Clause, why would there be a compelling interest exception for it * but not to the Lemon test or the endorsement test or anything else?  I've always had trouble with the disconnect between Larson and the rest of the cases.

Best,
Chris
 
______________________
Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 

>>> 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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