Establishment Clause and Strict Scrutiny

[Christopher Lund]

Very odd, I agree.  In fact, backwards.  And that's what I tried (pretty
inarticulately) to get at in the last line of my initial post.
 
But putting Larson aside, I think maybe the reason why Lemon and the
endorsement test can stay so absolutist in tone (i.e., no
compelling-interest exception) is because of their malleability in
practice.  If a court sees a compelling interest in a law, it's easily
to find a secular purpose and a secular effect, it's easy to simply say
no endorsement.  In this way, the compelling-interest exception is sort
of tacitly built into the other Establishment Clause tests.  
 
In fact, I sometimes wonder how much of that is actually happening in
cases like Marsh, Lynch, and Van Orden.  I mean, can't Breyer's opinion
in Van Orden properly be read as a statement that avoiding divisiveness
is sometimes a compelling interest that justifies not enforcing the
Establishment Clause out to its natural boundary?
 
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





>>> Jesse Merriam <jmerriam at gmail.com> 6/30/2009 11:19 AM >>>


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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