Publication Date

1989

Publication Title

Catholic Lawyer

Abstract

For almost a decade observers have predicted that the Supreme Court would reconsider its approach to interpreting the religion clauses of the first amendment. For some, this was an outcome to be feared; for others, it was to be welcomed. Optimist and pessimist alike, the Court has repeatedly proven them wrong. Once again, the Court appears on the verge of change. Maybe this time it will come to pass.

If doctrinal confusion and incoherence are predictors of doctrinal change, then change is surely on the way. Consider two recent decisions. According to the Supreme Court, the Constitution permits the State of Nebraska to hire a Presbyterian minister to deliver official prayers at the beginning of each meeting of the legislature.1 The same Constitution forbids the State of New York from sending public school teachers onto the premises of an inner city parochial school to teach remedial English and math to children needing special help.2 It is tempting to imagine that the Clerk of the Court got the files in these two cases mixed up-that the Court really meant to say that the state cannot hire legislative chaplains, but that remedial teachers are unobjectionable. It is equally tempting, and more realistic, to hope that results such as these will cause the Court to rethink its position.

It is conceded by most observers, whatever their substantive perspective, that the present state of Supreme Court doctrine is a muddle. My intention in this Article is to explore the causes and potential remedies for this doctrinal confusion. This requires me first to recount the recent history of twists and turns in religion clause doctrine. This section will unavoidably contain reflections on cases in which I have participated as an advocate.3 While I strive to be objective, readers should be alert lest I fall short of that ideal at times. In the second section I will put forward a more theoretical explanation for the current doctrinal confusion. The third section will outline the logical alternatives for resolving that confusion. Finally, in the fourth section I will explore in greater depth the alternative that, to me, holds the greatest promise for religious freedom.


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