Establishment Clause and Strict Scrutiny

[Steven Jamar]

I hope no one is seriously going to try to show that the Supreme Court  
establishment clause decisions are consistent or even decided on the  
basis of just one or a few principles consistently, even if the  
results are inconsistent.

The Court has done worse in this area than ad hoc -- it has feigned  
the use of principles and fidelity to precedent even as it does quite  
the opposite.

I think many of the so-called tests used by the courts, or the  
principles it brings to play in the cases, are not standard of review  
friendly.  They are either bright line or balancing of various factors  
in their very nature.  And the establishment caluse is, as the first  
poster noted, largely structural as opposed to a grant of an  
individual (or even group) right.  This changes the calculus.

Steve


-- 
Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute of Intellectual Property and Social  
Justice http://iipsj.org
Howard University School of Law           fax:  202-806-8567
http://iipsj.com/SDJ/

"I have the audacity to believe that peoples everywhere can have three  
meals a day for their bodies, education and culture for their minds,  
and dignity, equality and freedom for their spirits."

Martin Luther King, Jr., (1964, on accepting the Nobel Peace Prize)




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