Why a Coercion Test is of No Value in Establishment Clause Cases

Abstract

Courts have increasingly referred to some sort of ‘coercion’ test in resolving Establishment Clause cases. This is not surprising, given the references to coercion in other areas of the law, and the serious criticism received by other, familiar Establishment Clause tests. As it turns out, though, the literature of the social sciences and humanities, and of philosophy especially, show, initially, the discouraging complexity of trying to rely on any form of coercion test in the Establishment Clause cases. The crucial problem, however, is not precisely one of the complexity, in this context, of the idea of coercion. Rather, the idea of coercion turns out to be remarkably unclear, open, and in various ways crucially undeveloped and incomplete. What this means, unfortunately, is that courts must either leave the idea of coercion hopelessly unclear and underdeveloped, or must crucially flesh out the meaning of coercion in ways that inescapably depend upon the logic underlying other, rival tests for deciding Establishment Clause cases. Coercion tests in the Establishment Clause area thus crucially and inevitably rely on the logic of their rival tests, and offer no distinctive independent value in resolving the cases.