Reviewing Establishment Clause jurisprudence of the Supreme Court, this article notes that the current state of this area of law is in hopeless disarray and argues that the Court should resolve this confusion by employing a few proposed solutions. The article begins by reviewing and analyzing the confusion surrounding modern Establishment Clause jurisprudence. The article then discusses what interpretation of the Establishment Clause should be controlling: strict-separationism, nonpreferentialism, enhanced federalism, or the incorporation doctrine. Next, the article details what is wrong with modern establishment clause jurisprudence, namely, the Court’s inconsistent application of different tests to assess government action under the Establishment Clause and reviews the Lemon test, the endorsement test, the neutrality test, and the coercion test. Following this discussion, the article notes how the Supreme Court’s most recent Establishment Clause case, Town of Greece v. Galloway, failed to clarify any of the above doctrinal confusion. Finally, the article concludes by suggesting steps to improve clarity in Establishment Clause jurisprudence. It suggests 1) that the Court take steps to remedy its doctrinal jumble by clearly declaring a definitive test as well as overruling incorrect precedent and 2) that the Court adjust the level of scrutiny applied in these cases to rationale basis or intermediate scrutiny.
Krista M. Pikus,
Hopeful Clarity or Hopeless Disarray?: An Examination of Town of Greece v. Galloway and the Establishment Clause,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol65/iss2/11