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Federalism And Faith, Ira C. Lupu, Robert W. Tuttle
Federalism And Faith, Ira C. Lupu, Robert W. Tuttle
GW Law Faculty Publications & Other Works
Should the U.S. constitution afford greater discretion to states than to the federal government in matters affecting religion? In recent years, a number of commentators have been asserting that the Establishment Clause should not apply to the states. Justice Thomas has embraced this view, while offering his own refinements to it. Moreover, the Supreme Court's decision in Locke v. Davey (2004) ruled that a state did not run afoul of the Free Exercise Clause when it refused to subsidize religious studies, in a context in which the Establishment Clause would have permitted the subsidy.
This paper offers a focused (re)consideration …
A Constitutional Hierarchy Of Religions? Justice Scalia, The Ten Commandments, And The Future Of The Establishment Clause, Thomas Colby
A Constitutional Hierarchy Of Religions? Justice Scalia, The Ten Commandments, And The Future Of The Establishment Clause, Thomas Colby
GW Law Faculty Publications & Other Works
If there is one principle of Establishment Clause jurisprudence that has enjoyed the unanimous support of all of the Justices of the Supreme Court over the last half century, it is that all religions are afforded equal status under the Constitution. With his dissenting opinion in the 2005 Ten Commandments cases, however, Justice Scalia has upset that consensus. According to Justice Scalia's dissent, the Establishment Clause affords greater protection to the believers of some religions (Christianity, Judaism, Islam) than others (Hinduism, Buddhism, no religion, everything else). Turning traditional constitutional law on its head, Justice Scalia's approach treats the Establishment Clause …