Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 2 of 2
Full-Text Articles in Entire DC Network
Religion, Division, And The First Amendment, Richard W. Garnett
Religion, Division, And The First Amendment, Richard W. Garnett
Richard W Garnett
Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that …
Judicial Enforcement Of The Establishment Clause, Richard W. Garnett
Judicial Enforcement Of The Establishment Clause, Richard W. Garnett
Richard W Garnett
This paper is the author’s contribution to a roundtable conference, held in October of 2008 at Notre Dame Law School, devoted to Prof. Kent Greenawalt’s book, Religion and the Constitution: Establishment and Fairness. It is suggested that Greenawalt’s admirably context-sensitive approach to church-and-state questions might lead us to think that the best course for judges is to find (somehow) some bright-line, on-off “rules” and “tests”, constructed to identify and forbid the most obvious violations of the Religion Clause’s core (whatever that is), and to give up on -- or, perhaps, “underenforce” -- the rest.