Establishment Clause and Strict Scrutiny

[Jesse Merriam]

Isn't there something odd here in that the clearest command of the
Establishment Clause is subject to balancing but more ambiguous
commands are not subject to such balancing?  So the government may
favor one denomination over others if it has a compelling reason for
doing so, but the government may never directly fund religious
activities,  no matter how strong the government's interest in such
funding?

-Jesse

On Tue, Jun 30, 2009 at 11:15 AM, Christopher Lund<Lund at mc.edu> wrote:
> 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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