Northwestern University School of Law
December 1, 2001
Virginia Law Review, Vol. 88, 2002
Northwestern Public Law Research Paper No. 02-01
Part I of this Article will describe the secular purpose doctrine and the objections that have been offered against it. It will then describe the counterarguments of Justice Sandra Day O?Connor, the only member of the Court who has responded to these objections, and show how Justice O'Connor's defense of the doctrine fails. Part II will explain that there must be a secular purpose requirement, because government may not declare religious truth.
This part will examine the idea that some laws are only intelligible within a particular sectarian tradition and thus implicitly declare religious truth. These are the paradigmatic violations of the secular purpose requirement. If the basis of the secular purpose requirement is understood in this way, then it is easy to answer most of the objections that have been raised against it.
Part III will address the deepest of the objections to the secular purpose requirement, which claims that it forces the government to treat religion with callous indifference. The answer, I will argue, is to define the secular purpose requirement as permitting government to favor religion in general, so long as its support does not violate the axiom that government may not declare religious truth. Part IV will show that the theory of secular purpose that I offer fits the case law well. In particular, it will show how the theory of the Establishment Clause developed in Part III can explain the perennial puzzle of tax exemptions for churches. It will conclude by reexamining the secular purpose cases and showing how my account makes sense of most of them.
The cases that the theory cannot defend, I argue, are in fact wrongly decided.Part V will consider the implications of this argument for other areas of religion clause doctrine and for constitutional law generally.
Number of Pages in PDF File: 81
Date posted: January 13, 2002 ; Last revised: May 10, 2009