The Apparent Consistency of Religion Clause Doctrine
Washington University Journal of Law & Policy, Forthcoming
49 Pages Posted: 30 Jan 2006
Religion clause doctrine under the Rehnquist Court achieved a kind of consistency. The Court permitted government to benefit religion - so long as the benefit was part of a larger package that included secular recipients. And the Court permitted government to burden religion - so long as the burden was a neutral law of general applicability. On the other side of the ledger, the Court invalidated laws that benefited or harmed religion specially. But there were some outlier cases - Amos, Cutter, and Davey - which reveal that the apparently consistent doctrine cannot fully or properly explain how the religion clauses relate to each other. Under the Court's Establishment Clause jurisprudence, the purpose and endorsement tests properly prohibit dominant majorities from using the power of government to advance, expressly, preferred doctrinal positions. The Court should, in turn, read the Free Exercise Clause to compensate religious citizens, through exemptions, for the partial inability to advance through legislation what they believe to be true.
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