The Apparent Consistency of Religion Clause Doctrine

Washington University Journal of Law & Policy, Forthcoming

Fordham Law Legal Studies Research Paper No. 106

49 Pages Posted: 30 Jan 2006

See all articles by Abner S. Greene

Abner S. Greene

Fordham University School of Law

Abstract

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.

Suggested Citation

Greene, Abner S., The Apparent Consistency of Religion Clause Doctrine. Washington University Journal of Law & Policy, Forthcoming; Fordham Law Legal Studies Research Paper No. 106. Available at SSRN: https://ssrn.com/abstract=878781

Abner S. Greene (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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