28 Duq. L. Rev. 445 (1989-1990)
Beyond the Plastic Reindeer Rule: The Curious Case of County of Allegheny v. American Civil Liberties Union

handle is hein.journals/duqu28 and id is 459 raw text is: Beyond The Plastic Reindeer Rule: The Curious
Case of County of Allegheny v. American Civil
Liberties Union
George M. Janocsko*
The United States Supreme Court has long wrestled with the
task of giving meaning to the Establishment Clause1 of the First
Amendment of the Constitution in modern American society. De-
spite over forty years of labor,2 the Court's efforts to fashion a
clear, predictable and consistent framework for drawing the line
between governments and religion have been largely unsatisfying.
Scholarly commentary critical of the Court's Establishment Clause
jurisprudence abounds.' Even individual justices on the Court have
expressed dissatisfaction and chagrin at the development of consti-
tutional doctrine in this area.3
* B.A. University of Pittsburgh, 1974; J.D. Duquesne University School of Law 1977.
Second Assistant Solicitor, County of Allegheny. Co-Counsel in County of Allegheny v.
American Civil Liberties Union.
1. The Establishment Clause states: Congress shall make no law respecting an estab-
lishment of religion . . . U.S. CONST. amend. I.
2. The modern era of Supreme Court interpretation of the Establishment Clause be-
gan with the case of Everson v. Board of Education, 330 U.S. 1 (1947). Prior to Everson,
there were only a handful of cases involving the Establishment Clause. See, e.g., Cochran v.
Board of Education, 281 U.S. 370 (1929); Selective Draft Law Cases, 245 U.S. 366 (1918);
Quick Bear v. Leupp, 210 U.S. 50 (1908); Bradfield v. Roberts, 175 U.S. 291 (1899); Davis v.
Beason, 133 U.S. 333 (1890).
3. The Establishment Clause was made applicable to the states through the Due Pro-
cess Clause of the Fourteenth Amendment in the Everson case. See Everson, 330 U.S. at 8,
4. See, e.g., Marshall, We Know It When We See It: The Supreme Court and Es-
tablishment, 59 S. CAL. L. REV. 495 (1986); Tushnet, Reflections on the Role of Purpose in
the Jurisprudence of the Religion Clauses, 27 WM. & MARY L. REV. 997 (1986); Valauri, The
Concept of Neutrality in Establishment Clause Doctrine, 48 U. PrrT. L. REV. 83 (1986);
Paulsen, Religion, Equality and the Constitution: An Equal Protection Approach to Estab-
lishment Clause Adjudication, 61 NOTRE DAME L. REV. 311 (1986); Kurland, The Religion
Clauses and the Burger Court, 34 CATH. U. L. REV. 1 (1984).
5. See, e.g., Edwards v. Aguillard, 482 U.S. 478, 639, (1987) (Scalia, J., dissenting) (Es-
tablishment Clause jurisprudence is embarrassing); Wallace v. Jaffree, 472 U.S. 38, 91
(1985) (White, J., dissenting) (it would be quite understandable if we undertook to reassess
our cases ... dealing with the Establishment Clause); Id. at 107 (Rehniquist, J., dissent-

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