Sharpening the Prongs of the Establishment Clause: Applying Stricter Scrutiny to Majority Religions
43 Pages Posted: 31 Mar 2010
Date Written: July 1, 1989
Abstract
The First Amendment limit on the establishment of religion has not been taken seriously. Courts have focused in excruciating detail to draw lines with regard to the appearance of prominent religious symbols in state-identified forums, while virtually ignoring establishment problems with much greater practical implications such as the use of state police power to enforce rules based solely on the religious qualms of the majority. For example, Sunday “blue laws” (particularly Sunday bans on the sale of alcohol) and laws criminalizing sex acts such as fornication and sodomy generally have been viewed as consistent with the First Amendment.
The author argues that the “appearance of endorsement” analysis supported by Justice O’Connor in her concurrence in Lynch v. Donnelly would be good Establishment Clause doctrine if it were applied from the viewpoint of a “reasonable humanist” to demonstrate that the state has a justification independent of religious belief.
Traditionalist Supreme Court Justices reason that analysis focusing on the appearance of endorsement disfavors majority religions in comparison to less established faiths. The author agrees, but - unlike traditionalists - he applauds that development and argues for its extension in the form of stricter scrutiny of laws that coincide with majority religious beliefs. Perhaps anticipating the rationale of justices in Lawrence v. Texas that majority condemnation of a practice as immoral is not sufficient to uphold a law under Equal Protection or Due Process Clause analysis, the author argues that such condemnation is not a sufficient justification under the Establishment Clause of the First Amendment.
This “Note” reviews the original purposes behind the First Amendment as well as later judicial construction of the Establishment Clause. It criticizes the de facto grandfathering of long-established state practices identified with religion as well as the acceptance of newer practices that are no more identified with religion than these established examples.
This article views the Establishment Clause within the context of a working federal Constitution. It notes that the Constitution is largely a procedural document aimed to design a well functioning republican democracy, which properly tends to perpetuate the will of the majority at the cost of minority interests. The First Amendment and the rest of the Bill of Rights protect individual and minority rights that conflict with the will of the majority, providing a beneficial balance. Since religious sentiment is often passionately held and unaccommodating to compromise or dissent, minority interests are most vulnerable when they conflict with the majority’s religious beliefs. Establishment Clause jurisprudence would be more effective in achieving the goals underlying the First Amendment if it subjected laws coinciding with majority religious beliefs to stricter scrutiny regarding their valid secular purposes.
Keywords: establishment, religion, religions, establishment clause, first amendment, sodomy, fornication, blue laws, sunday closing laws, majority, moral, strict scrutiny
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