A Positive Rights Interpretation of the Establishment Clause
16 Pages Posted: 20 Oct 2010
Date Written: 2003
In this article, I use two Establishment Clause cases – the Ninth Circuit’s decision in Newdow v. U.S. Congress and the Supreme Court’s decision in Zelman v. Simmons-Harris – as vehicles for critiquing the Supreme Court’s Establishment Clause jurisprudence. My primary thesis is that the justices, liberal and conservative alike, set unduly modest goals for the Establishment Clause. I contend that the justices require only that governmental actions affecting church/state relations not be harmful – in other words, that the actions do not lead to religious strife, make members of society feel excluded, or corrupt either state or church institutions. I argue that the Court should go beyond asking whether governmental actions are harmful and ask more affirmatively whether they “do good.” I suggest that, even if a governmental action is not demonstrably harmful to church/state interests, it can still be unconstitutional if it does not help further the Establishment Clause’s larger goal of creating an inclusive society that welcomes all members, regardless of their religious affiliation or lack thereof.
Keywords: constitutional law, establishment clause, freedom of religion
JEL Classification: K19
Suggested Citation: Suggested Citation