October 08, 2020 Rapid Response

The Decline of the Establishment Clause?

With its ruling at the close of the 2019-20 term that the Montana Constitution’s no-aid-to-religious-schools provision violates the Free Exercise Clause, disallowing “play-in-the-joints” even at the state level, the U.S. Supreme Court seemed to close the book on a long-held view that the Establishment Clause all-but-categorically prohibits the use of taxpayer funds to support houses of worship and parochial schools. This ruling did not emerge from nowhere. It is part of a sea change in which the courts have moved toward an “equal treatment” reading of the Establishment Clause under which taxpayer funds may flow to religious institutions where this is done on the basis of neutral principles that neither prefer one faith group over another nor make a preference between religious and secular institutions.

Similarly, the extent to which the Establishment Clause prohibits the placement of religious symbols on public property or government sponsored prayer as part of a state university graduation ceremony or legislative session has also proved to be a moving target, as the courts have thrashed out how to understand and apply the non-establishment principle in those circumstances.

Is this movement in interpretation of the Establishment Clause the end to what some have called an unwarranted “hostility toward religion?” Or, rather, does it reflect an untoward opening of the door toward majoritarian pressure in which a weakened First Amendment removes barriers to all but the most explicit establishment of a particular church or explicit coercive behaviors? Our panelists tell us what they think!

Panelists

  • Thomas C. Berg, James L. Oberstar Professor of Law and Public Policy, University of St. Thomas School of Law 
  • Steven K. Green Fred H. Paulus Professor of Law, Willamette University College of Law; Director, Center for Religion, Law & Democracy, Willamette University
  • Holly Hollman, General Counsel and Associate Executive Director, Baptist Joint Committee for Religious Liberty 
  • Asma T. Uddin, Senior Scholar and Faculty, Religious Freedom Center

Moderator

  • Marc Stern, Chief Legal Officer, American Jewish Committee

Resources

Transcript: The Decline of the Establishment Clause?

Thomas C. Berg and Douglas Laycock, Espinoza, Government Funding, and Religious Choice, Journal of Law and Religion (forthcoming)

Why Keeping the 40-foot Peace Cross Might be Good for Religious Minorities

The "Irrelevance" of Church-State Separation in the Twenty-First Century

SCOTUS decision masks significant shift in the law
The Hollman Report | August 19, 2020

Symposium: What’s “the use” of the Constitution’s distinctive treatment of religion if it is disregarded as discrimination?
SCOTUSblog | July 2, 2020

Symposium: RIP state “Blaine Amendments” – Espinoza and the “no-aid” principle
SCOTUSblog | June 30, 2020

Symposium: Decision does not support new Christian-only monuments
SCOTUSblog | June 21, 2019

Symposium: Ban on state funding of churches protects independence
SCOTUSblog | August 9, 2016

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