Making Sense of the Establishment Clause
Engage, Vol. 10, p. 4, 2009
4 Pages Posted: 13 Aug 2009 Last revised: 22 Sep 2009
Date Written: August 12, 2009
While the jurisprudence of the Establishment Clause may not make much sense (common or otherwise) as a substantive legal matter, it does make sense as a series of jurisprudential maneuvers by which the Court has sought to make more room for religion in civic life. In fact, there is a method to the “massive jumble... of doctrines and rules” that forms the law of church-state relations. It is the method of a somewhat disorderly retreat from the Constitution’s foundational principle of disestablishment. The accommodations made by the Court to religious belief and conduct have allowed for discrimination against non-religion, edging the Court ever closer toward a non-preferentialist perspective.
Keywords: establishment clause, supreme court, jurisprudence
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