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

See all articles by Jennifer Anglim Kreder

Jennifer Anglim Kreder

Northern Kentucky University - Salmon P. Chase College of Law

Date Written: July 16, 2013

Abstract

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

Kreder, Jennifer Anglim, Lessons for Religious Liberty Litigation from Kentucky (July 16, 2013). 19 Wash. & Lee J. of Civil Rights & Soc. Just. (2013), Available at SSRN: https://ssrn.com/abstract=2321391

Jennifer Anglim Kreder (Contact Author)

Northern Kentucky University - Salmon P. Chase College of Law ( email )

Nunn Hall
Highland Heights, KY 41099
United States
859-572-5889 (Phone)
859-572-5342 (Fax)

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