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40 Val. U. L. Rev. 71 (2005-2006)
Does the Establishment Clause Require Religion to Be Confined to the Private Sphere

handle is hein.journals/valur40 and id is 79 raw text is: DOES THE ESTABLISHMENT CLAUSE REQUIRE RELIGION TO BE CONFINED TO THE PRIVATE SPHERE? Kevin Pybas* I. INTRODUCTION A recurring theme in the U.S. Supreme Court's Establishment Clause jurisprudence is the claim that the First Amendment requires religion to be confined to the private sphere.1 In the case that launched the Supreme Court's modern Establishment Clause jurisprudence, Everson v. Board of Education,2 Justice Rutledge, dissenting from the Court's approval of the use of public funds to reimburse transportation costs to families whose children attended Catholic schools, objected on the ground that religion and religious schooling is exclusively a private affair.3 Similarly, writing for the Court in Lemon v. Kurtzman,4 where the Court ruled that it was unconstitutional for New Jersey and Pennsylvania to supplement the salaries of teachers teaching secular subjects in parochial schools, Chief Justice Burger asserted that the Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice.. .. Thus, the privatization principle, if it may be called that, seeks to deny religion any role in public life.6 Department of Political Science, Missouri State University; University of Georgia, Ph.D.; University of Tulsa, J.D. 1 See Gerard V. Bradley, Dogmatomachy: A Privatization Theory of Religion Clause Cases, 30 ST. Louis U. L.J. 275 (1986); Richard W. Garnett, A Quiet Faith? Taxes, Politics, and the Privatization of Religion, 42 B.C. L. REV. 771 (2001); Richard S. Myers, The Supreme Court and the Privatization of Religion, 41 CATH. U. L. REV. 19 (1991). Bradley, as the title of his article suggests, focuses on the way the Supreme Court has used the First Amendment to minimize the role of religion in public life. Myers, on the other hand, focuses not only on religion cases but also substantive Due Process Clause cases and the extent to which the Court, or various members of it, have sought to limit the role of religious beliefs in lawmaking. Garnett argues that the limitation on political speech and activities imposed on religious institutions receiving tax exemptions wrongly communicates the message that religion is purely a private matter. 2 330 U.S. 1 (1947). 3 Id. at 53. 4 403 U.S. 602 (1971). 5 Id. at 625. 6 Noting this, Justice Scalia once heatedly accused some of his colleagues of treating religion like pornography, as some purely personal avocation that can be indulged entirely in secret... in the privacy of one's room. Lee v. Weisman, 505 U.S. 577, 645 (1992) (Scalia, J., dissenting).

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