The Supreme Court’s Dilemma Respecting Establishment Clause Jurisprudence
The Supreme Court’s Dilemma Respecting Establishment Clause Jurisprudence
Monte Kuligowski, 38 Cumb. L. Rev. 245 (2008)
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When this article refers to the Court’s neutrality doctrine, it does so in context of the Court’s unilateral amending of the Establishment Clause, which made incorporating the clause into the Fourteenth Amendment possible. Without the lingual reconstruction, the principle of separation of church and state certainly was applicable to the federal Congress. Even the broader concept of neutrality has a limited range of applicability. At a minimum, the Establishment Clause prevents the federal government from establishing a national church. At a maximum, we may discern language of the First Congress’s ratification debates to conclude that the Establishment Clause was also meant to prevent the federal government from favoring one religious sect over another; thus remaining neutral in matters of the states’ religions
The problem with the doctrine of government neutrality, as applied to the states, is the inevitable result: Religion may not be favored over non-religion. Once the distinction of federal neutrality between sects is lost, a compelling basis for the clause is thrown out with the bathwater. Professor Donald Beschle aptly sums up the consequence of neutrality jurisprudence: “The most lasting legacy of Everson would be the confident assertion that government must maintain a strict neutrality, not merely among religions, but between religion in general and irreligion.”