Lessons for Religious Liberty Litigation from Kentucky
19 Wash. & Lee J. of Civil Rights & Soc. Just. (2013)
42 Pages Posted: 7 Sep 2013 Last revised: 13 Nov 2013
Date Written: July 16, 2013
Most litigation in the religious liberty arena has focused on the Establishment Clause. At its heart, however, such litigation is about discrimination, and many of the most prominent recent cases concern ostracism of nonbelievers. Because the legal theory does not suit the harm, judicial interpretation of the Establishment Clause is inconsistent and unpredictable. Moreover, recent turnover on the Supreme Court has the potential to lead to a more permissive legal standard when it comes to the government itself conveying religious speech and symbolism. This creates a daunting legal landscape for nonbelievers and other increasingly ostracized groups seeking to challenge the divisive injection of God into government in the wake of 9/11 and in the age of terrorism. As a solution, nonbelievers and others seeking to utilize courts to protect the church-state divide should raise new constitutional challenges to government-sponsored religion, such as litigating under the Equal Protection Clause or the Religion Test Clause. New avenues need to be hewn to avoid inconsistent and additional regressive Establishment Clause jurisprudence.
Keywords: religion, religious liberty, Establishment Clause, Constitutional Law, discrimination, religious speech, religious symbolism, nonbelievers, church-state, Religion Test Clause
JEL Classification: K10
Suggested Citation: Suggested Citation