About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

15 Duke J. Const. L. & Pub. Pol'y Sidebar 1 (2020)

handle is hein.journals/dukjppsid15 and id is 1 raw text is: 





                             NEIL JOSEPH*


    The Supreme Court's Establishment Clause jurisprudence is in
shambles and has confounded the lower courts.' The Court does not
employ [an] analytically sequenced, tiered framework for judicial

review as it does in other constitutional contexts.2 The current justices
on the Court have widely divergent views on the Establishment
Clause's meaning,3 and the lone test that the Court created has been
panned by several justices.' Originalist judges, however, have had a
fairly consistent approach to interpreting the Establishment Clause.'

Copyright © 2019 Neil Joseph
* J.D. Candidate, Duke University School of Law, Class of 2020. The author would like to thank
the journal staff for their hard work in editing this article. He would also like to thank Professor
Stephen Sachs for his guidance on this piece.
    1. Utah Highway Patrol Ass'n v. Am. Atheists, Inc., 132 S. Ct. 12, 13 (2011) (Thomas, J.,
dissenting from denial of certiorari).
    2. Richard H. Fallon, Jr., Tiers for the Establishment Clause, 166 U. PA. L. REV. 59, 60
    3. Compare Dunn v. Ray, 139 S. Ct. 661, 662 (2019) (Kagan, J., dissenting from denial of
application to stay) (describing the Establishment Clause's core principle as denominational
neutrality) with Frank Ravitch, Judge Kavanaugh on Law and Religion Issues, SCOTUSBLOG
(July 30, 2018), https://www.scotusblog.com/ 2018/07/judge-kavanaugh-on-law-and-religion-
issues/ (describing Judge Kavanaugh's Establishment Clause approach as akin to Judge
Rehnquist's, who rarely agreed that government action violated the Establishment Clause) and
Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J., concurring) (showing Justice
Thomas' view that Establishment Clause interpretation might depend on whether the actor is the
state or federal government).
    4. See, e.g., Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993)
(Scalia, J., concurring) (describing the Establishment Clause test from Lemon v. Kurtzman, 403
U.S. 602, 614-615 (1971), as a ghoul in a late night horror movie); Corp. of Presiding Bishop of
Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 346 (1987) (O'Connor, J.,
concurring) (noting the difficulties with the Lemon test); Sch. Dist. of Grand Rapids v. Ball, 473
U.S. 373, 400 (1985) (White, J., dissenting) (expressing consternation with the Lemon test).
    5. See infra Part I (describing Scalia and Rehnquist's approaches).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.

Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most