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The Democratic Aspect of the Establishment Clause: A Refutation of the Argument that the Clause Serves to Protect Religious or Nonreligious Minorities

31 Pages Posted: 8 May 2008  

Patrick M. Garry

University of South Dakota - School of Law

Abstract

The Article relies on constitutional history to argue that the proper interpretation of the Establishment Clause - one that reconciles the Establishment and Free Exercise Clauses - is as a majority-rights provision, protecting the freedom of religious associations to assert themselves in the social arena in accordance with the strength of their numbers.

A survey of Establishment Clause doctrines and commentary reveals that the Clause is often viewed as a minority rights provision, protecting religious and nonreligious minorities from being exposed in certain ways to society's dominant religions. This Article argues against such an interpretation. It portrays the Establishment Clause as a structural provision of the Constitution, concerned with democratic processes and limited government, much like the doctrines of federalism and separation of powers. The Article also asserts that a respect for majority rule constitutes a core value of the Establishment Clause. Whereas the Free Exercise Clause protects minority rights, the Establishment Clause protects the democratic, communal side of religious freedom. Essentially, the Establishment Clause protects the freedom of association - a freedom that includes not only the right of individuals to align themselves with religious institutions, free of any restrictions caused by a state - mandated religion, but also the right of those institutions to reflect and represent their members' desires for public action and involvement. Consequently, the Endorsement Clause should be applied in a way that will leave as broad an opportunity for the involvement of religious organizations in civil society.

Keywords: First Amendment, Establishment Clause, Free Exercise Clause, Religious minority, Religious majority, Constitution

JEL Classification: K1, K3, K10, K19, K30, K39

Suggested Citation

Garry, Patrick M., The Democratic Aspect of the Establishment Clause: A Refutation of the Argument that the Clause Serves to Protect Religious or Nonreligious Minorities. Mercer Law Review, Vol. 59, No. 2, 2008. Available at SSRN: https://ssrn.com/abstract=1130303

Patrick M. Garry (Contact Author)

University of South Dakota - School of Law ( email )

414 E. Clark Street
Vermillion, SD 57069
United States

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