Eviscerating a Healthy Church-State Separation

51 Pages Posted: 20 Dec 2018 Last revised: 23 Sep 2019

See all articles by Erwin Chemerinsky

Erwin Chemerinsky

University of California, Berkeley - School of Law

Barry McDonald

Pepperdine University - School of Law

Date Written: 2019

Abstract

In June of 2017, the U.S. Supreme Court issued one of its first major church-state rulings in some time. In Trinity Lutheran Church of Columbia, Inc. v. Comer, it held that the federal Free Exercise Clause required the State of Missouri to provide direct funding to an arm of a church despite an anti-establishment clause in the Missouri Constitution which barred it. This article argues that the decision was contrary to American constitutional history at both the federal and state level, was not faithful to Court precedent in this area, and was contrary to sound constitutional policy in the area of church-state relations. Most importantly, it argues that the Court’s reasoning will open the door to increased governmental funding of churches and other devotional communities, all to the detriment of a healthy separation of church and state that is vital for religion to thrive and the state to properly perform its functions.

Keywords: church-state separation, church-state relations, religious freedom, public funding of religious institutions, Trinity Lutheran Church of Columbia, Inc. v. Comer, Locke v. Davey, Free Exercise Clause, Establishment Clause, anti-establishment clauses, First Amendment, individual rights, constitutional

Suggested Citation

Chemerinsky, Erwin and McDonald, Barry, Eviscerating a Healthy Church-State Separation (2019). 96 Wash. Un. L. Rev. 1009; Pepperdine University Legal Studies Research Paper No. 2018/20. Available at SSRN: https://ssrn.com/abstract=3304235

Erwin Chemerinsky

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

HOME PAGE: https://www.law.berkeley.edu/our-faculty/faculty-profiles/erwin-chemerinsky/

Barry McDonald (Contact Author)

Pepperdine University - School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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