A Positive Rights Interpretation of the Establishment Clause

Alan E. Garfield

Widener University - Delaware Law School


Temple Law Review, Vol. 76, 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.

Number of Pages in PDF File: 16

Keywords: constitutional law, establishment clause, freedom of religion

JEL Classification: K19

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Date posted: October 20, 2010  

Suggested Citation

Garfield, Alan E., A Positive Rights Interpretation of the Establishment Clause (2003). Temple Law Review, Vol. 76, 2003. Available at SSRN: https://ssrn.com/abstract=1694194

Contact Information

Alan E. Garfield (Contact Author)
Widener University - Delaware Law School ( email )
4601 Concord Pike
Wilmington, DE 19803-0406
United States
HOME PAGE: http://law.widener.edu

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