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Passive Observers, Passive Displays, And The Establishment Clause, Mark Strasser
Passive Observers, Passive Displays, And The Establishment Clause, Mark Strasser
Mark Strasser
A number of factors are thought relevant when deciding whether a particular state practice implicating religion violates constitutional guarantees: the age of the individuals who will be exposed to the practice, whether the practice at issue requires participation, whether the state is seen as endorsing religion, and whether the practice is coercive or proselytizing. What the current jurisprudence does not make clear, however, is whether the passive nature of a practice is an additional factor to be considered or whether, instead, describing a practice as “passive” is simply to use a conclusory term indicating that the practice does not violate …
The Protection And Alienation Of Religious Minorities: On The Evolution Of The Endorsement Test, Mark Strasser
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, …