Document Type
Article
Publication Date
2020
Disciplines
Law
Abstract
In previous cases, the endorsement test had often been used to determine whether religious expression or symbols on public property violated the Establishment Clause. However, in American Legion v. American Humanist Ass'n, the Court turned to an historical traditions test, casting doubt on the future legitimacy of the endorsement test and the broader and older Lemon test, which has in recent years fallen into disfavor with the Court, given its foundations in the controversial Wall of Separation metaphor. Even though the American Legion Court upheld the religious symbol at issue, it did so on such narrow grounds as to give very little direction to future Establishment Clause cases involving even slightly different factual situations. Consequently, the decision does very little to clarify an already greatly confused Establishment Clause jurisprudence. On the other hand, while it may not have toppled the Wall of Separation, it did remove a brick from that Wall. And perhaps Lemon and its progeny can only be undone in small steps. This Article conducts the kind of thorough examination of the meaning and purpose of the Establishment Clause that many might have hoped from the American Legion opinion. In so doing, the Article seeks to bypass all the different tests the Court has used over the past decades and instead focus on the root meaning of the word 'establishment'-an endeavor the courts have never undertaken. Furthermore, America's steady drift to an increasingly secular society makes it even more important to understand the meaning of the Establishment Clause, especially the connection of that Clause to the overall protection of religious liberty.
Publication Title
Northeastern University Law Review
Volume
12
First Page
660
Recommended Citation
Patrick M. Garry, Establishment Clause Jurisprudence Still Groping For Clarity: Articulating a New Constitutional Model, 12 Ne. U. L. Rev. 660 (2020)