Lost In The Forest of the Establishment Clause: Elk Grove v. Newdow

Abstract:     
This article assesses the possible impact of the Supreme Court's Elk Grove v. Newdow decision which challenged the constitutionality of the Pledge of Allegiance. While the end analysis of this article is that the Supreme Court failed to provide guidance in this ambiguous area of constitutional law, some lessons may be gleamed from the opinion. First, it is clear that the Court will not utilize a strict Lemon test in the future cases involving the Establishment Clause. Second, no clear consensus exists among the current justices as to which one of the multiple alternatives to Lemon should be utilized. Third, there is good reason to believe that, give the right set of facts, at least five justices appear willing to find instances of ceremonial deism, which involve references to religion in public activities, constitutionally permissible. Lastly, it would appear the Justice Kennedy may be the most important "swing vote" in this area of jurisprudence.

Number of Pages in PDF File: 47

Accepted Paper Series