Law Commons^™

When Churches Divide: On Neutrality, Deference, And Unpredictability, Mark Strasser

Mark Strasser

Predictions that the Anglican Communion would be torn asunder have proven false, at least for now. Nonetheless, continuing disagreements about whether Bishop Gene Robinson should be a bishop and about whether same-sex unions should be recognized provide an ever-present reason for a possible break within that Communion. Were there such a break, there might well be numerous suits regarding the ownership of various properties.

Historically, churches have split off from their denominational affiliations for a whole host of reasons including disagreements over property ownership, church leadership, or member equality. When such divisions take place, the ownership of particular buildings or …

The Coercion Test: On Prayer, Offense, And Doctrinal Inculcation, Mark Strasser

Mark Strasser

Several different tests have been proposed to determine whether a state practice violates the Establishment Clause, including the Lemon test, the Endorsement test, and the Coercion test. While no test yet commands the consistent support of members of the Court, it is clear that several members of the Court favor some version of the Coercion test. Interpretation and evaluation of that test are rather difficult, however, because Court members differ greatly both about what kind of coercion triggers the relevant protections and about what the test is designed to prevent. The great disparity in views both about the reach and …

The Protection And Alienation Of Religious Minorities: On The Evolution Of The Endorsement Test, Mark Strasser

Mark Strasser

The Endorsement test is one of the tests currently used by the United States Supreme Court to determine whether a particular state practice implicating religion passes constitutional muster and has been described as the test to make that determination. While commentators have noted that the current test is difficult for lower courts to apply and is likely to result in relevantly similar cases being decided dissimilarly, too little attention has been paid to the ways that the test itself has evolved. The Court’s more recent applications of the test have conveyed a message far different from the one previously communicated, …

Religion In The Schools, Mark Strasser

Mark Strasser

This Article traces the development of modern Establishment Clause jurisprudence with respect to religion in the public schools, noting how the Court’s analyses and justifications have changed over time, protestations to the contrary notwithstanding. The Article examines how the logic of the Court’s current approach would permit practices long thought to violate Establishment Clause guarantees, concluding that the current approach is radically misconceived as a matter of both constitutional law and good public policy.

State Funding Of Devotional Studies: A Failed Jurisprudence That Has Lost Its Moorings, Mark Strasser

Mark Strasser

The Court’s attitude toward the public funding of devotional studies can best be described as ambivalent. Not long ago, devotional studies were viewed as one of the few kinds of study that the state clearly could not fund. Then, the Court did an about-face, implying that public funding of devotional studies does not violate constitutional guarantees, because that kind of study cannot be distinguished for constitutional purposes from other kinds of permissibly funded areas of study. Still more recently, the Court has changed course yet again, suggesting that states may but need not refuse to fund such studies, reverting to …

Death By A Thousand Cuts: The Illusory Safeguards Against Funding Pervasively Sectarian Institutions Of Higher Learning, Mark Strasser

Mark Strasser

Death by a Thousand Cuts: The Illusory Safeguards against Funding Pervasively Sectarian Institutions of Higher Learning

Tilton v. Richardson, Hunt v. McNair, and Roemer v. Board of Public Works are often thought to offer a coherent view of the Establishment Clause limitations on funding religiously affiliated institutions of higher learning. But the decisions themselves offer inconsistent analyses of Establishment Clause limitations and, further, were the analyses in these cases applied more generally, Establishment Clause guarantees would be even less robust than they are currently thought to be.

The difficulties for the Court in offering a coherent approach to public funding …

Repudiating Everson: On Buses, Books, And Teaching Articles Of Faith, Mark Strasser

Mark Strasser

Ever since deciding Everson v. Board of Education, the Court has wrestled with the proper way to characterize the limitations imposed on the states by the Establishment Clause. Many of the cases have involved the extent to which the state can give aid to the parents of children attending primary and secondary sectarian schools. The Court’s understanding of the limits on this kind of aid has changed markedly over the past sixty years, having first involved an analysis of the degree to which the state would be aiding religious teaching and then having changed to an analysis of whether the …