A Look at the Establishment Clause Through the Prism of Religious Perspectives: Religious Majorities, Religious Minorities, and Nonbelievers

Abstract

This article traces the Court’s Establishment Clause jurisprudence through several decades, examining a number of landmark cases through the prism of religious minority perspectives. In so doing, the Article aims to demonstrate the significance of religious perspectives in the development of both the doctrine and rhetoric of the Establishment Clause. The Article then turns to the current state of the Establishment Clause, expanding upon these themes through a close look at the 2004 and 2005 cases Elk Grove Unified School District v. Newdow, Van Orden v. Perry, and McCreary County v. American Civil Liberties Union of Kentucky. The article concludes that the ongoing debates among Supreme Court Justices over the relevance of religious minority perspectives contribute to more general divisions that continue to characterize the current state of the Court’s Establishment Clause jurisprudence.

Keywords: Religion, law, McGowan, Torcaso, Watkins, Maryland, Engle, Vitale, Schempp, Abington Township, Post-Lemon cases, religious diversity, jurisprudential division, Marsh, Lynch, Marsh v. Chambers, Chambers, Lynch v. Donnelly, Donnelly, Wallace v. Jaffree, Wallace, Jaffree, County of Allegheny, Allegheny

JEL Classification: K30,K39, K40, K49