1.30 Establishment continued

1.30 Establishment continued - Establishment Clause cont...

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1/30/08 Establishment Clause cont…. What are the competing theories of the Establishment Clause Choice of the approach determines the outcome- what arguments matter? Ex. Allegheny County vs. ACLU-p1491 Two cases: nativity scene and menorah in front of city building- Three theories: Strict Separation- to the greatest extent possible, gov’t should be secular-TJ Neutrality theory- says the government must be neutral among religions and between secular activities and religious activities. The establishment clause makes sure gov’t stays neutral through religion. P1487- neutrality theory- gov’t cannot symbolically endorse religion, or a particular religion- is the government endorsing religion or a particular religion? P 1488- Symbolic test- how does it pertain to religion? Nativity scene ruled by O’connor et al that nativity scene was a violation of Est. Clause, but Menorah was not. “I know it when I see it” the symbolic test in the Establishment Clause- Justice Potter Stewart “I can’t define it, but I know it when I see it” is symbolic test really “I know it when I see it?” “look at the symbol from the perspective of a reasonable viewer” p 1488- religious property is tax exempt, is that a violation of est clause? Universities are too. Under tax code- members of the gospel can claim a tax free housing allowance- professors, etc don’t get it. Is this favoring religion over non-religion? 3. Accomodationist Theory-Gov’t violates the Establishment clause only if it establishes a chuch and coerces the adherence to religion- sometimes called the Coercion test- these people say that religion is an integral part of society and that we need to accommodate religion in government and government in religion at times- Justice Kennedy- in Allegheny County case- 1493-1494 What does it mean to coerce religious participation? Is it looking at symbols? Clergy offering prayer at public school graduation ceremonies? This view says it only was meant to prevent gov’t from creating a “Church of England” type church- and to keep from coercing
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Roger Williams- Strict Separationist; did it mean gov’t must be neutral? Originalism supports accomodationist theory. What symbols are allowed? Gov’t will have majority of religions. What is prayer in schools? The same that is in adherence with the majority. If est. clause is meant to protect the minority, then this view is bad because allows for majority. What are advantages of Accomodationist theory? Since we are a democracy and if the majority wants the symbol there, then it should be there. Public school prayer? Scalia’s dissent “so much talk about the people who don’t want it there, but what about those who do want it there?” or is that taking legislature into judicial realm? Scalia believes very little violates the Free Exercise and Establishmet Clause-
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1.30 Establishment continued - Establishment Clause cont...

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