Atmospheric Harms in Constitutional Law

Abstract

Prepared for the University of Maryland Constitutional Law Workshop, this essay uses Proposition 8 to frame how nontangible or "atmospheric" harms are treated differently by Establishment Clause doctrine than by other areas of constitutional law. The essay concludes that the greater tendency of Establishment Clause doctrine to credit actions based on atmospheric harms suggests that despite the doctrinal normalization of much Religion Clause jurisprudence, religion remains distinct from other constitutionally protected activities.

Keywords: atmospheric harm, constitutional law, Establishment Clause, Free Exercise, Proposition 8, religion