55 Pages Posted: 14 Dec 2009 Last revised: 31 Jan 2010
Date Written: 2009
The 2008 campaign for the presidency should remind Americans that mixing religion and politics can be dangerous. Polls show that more than half of American voters would hesitate to support a Mormon candidate. In terms of Establishment Clause doctrine, the entanglements prong of the Lemon test provides a mechanism for protecting political equality by ensuring against religiously-inspired political divisiveness. Yet, in recent years, numerous scholars and Supreme Court Justices have attacked the entanglements prong. Indeed, the Court has poked so many holes in the entanglements inquiry that it may no longer exist. This Article defends the political-divisiveness component of the entanglements prong. The political theory of pluralist democracy, the social science research documenting the power of religious identity, and the history of religious discrimination in the United States demonstrate that the importation of religious divisions into the political realm can thwart the pluralist democratic process. Pluralist democracy demands that each and every citizen be afforded a full and fair opportunity to participate, to assert his or her interests and values in the democratic arena. Citizens, then, must be willing to negotiate and compromise with other citizens, who are equally entitled to assert their interests and values. But religiously-inspired political positions sometimes cannot be compromised; they are absolutes. Moreover, when political stances form around religious orientations, religious outsiders inevitably lose merely because they are minorities. Throughout American history, dominant religious groups have translated their values into political goals and imposed them on minorities. Given this, the Court should promote political equality and protect religious minorities from the ravages wrought by religiously-inspired political divisiveness. To do so, the Court should interpret the Establishment Clause to proscribe governmental programs funding religious activities and institutions and governmental displays of religious symbols.
Keywords: elections, religious discrimination, Establishment Clause, entanglements prong, Lemon test
Suggested Citation: Suggested Citation
Feldman, Stephen Matthew, Divided We Fall: Religion, Politics, and the Lemon Entanglements Prong (2009). First Amendment Law Review, Vol. 7, 2009. Available at SSRN: https://ssrn.com/abstract=1522176