Establishment Clause and Strict Scrutiny

Tue Jun 30 10:48:58 PDT 2009

It is a puzzle.  But I can't think of a case where they squarely reject a compelling interest exception either, although they hinted at it.  Mostly, they just never talked about it.

As Chris Lund suggested, part of the answer might be the structure of Lemon itself.  The compelling interest test is implied into rights that are textually absolute.  Lemon is not textually absolute and never was.  There must not be a principal or primary effect that advances or inhibits religion, and there must not be excessive entanglement.  That always left them some wiggle room -- although they didn't use that particular source of wiggle room much; they used other theories to create all the exceptions to the no-aid rule in the 70s.

The compelling interest test wouldn't come up much, because government can't pursue religious interests, and there are few secular interests that can't be pursued without religious means.  But there are some, especially if equal treatment of all citizens without regard to religion is counted as part of the interest.  The best candidate for a compelling interest exception to the Establishment Clause would have been Aguilar v. Felton (1985), invalidating federal funds for remedial education for low-income students in low-income neighborhoods, including such students in religious schools.

Shameless plug:  I talked about this in passing in a 1981 Columbia Law Review article.  Absolutely nothing came of it, but it starts at n.113 for anyone who might still care.

Quoting Jesse Merriam <jmerriam at gmail.com>:

> 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[1[1]]
>>>>> 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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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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