Separation of Church and State: Transfers of Government Land As Cures for Establishment Clause Violations
Paul Forster, 85 Chi.-Kent L. Rev. 401 (2010)
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This article examines how courts should treat remedial sales in light of current case law. This note will argue that, given certain requirements, even the Supreme Court’s strictest Establishment Clause tests should permit defendant governments to sell land in order to cure Establishment Clause violations arising from permanent displays that include religious imagery. Section I of the note discusses the Supreme Court’s struggle to produce clear and consistent Establishment Clause standards and describes several tests that the courts use–or may in the future use–in Establishment Clause cases. Section II explains how these various tests apply to permanent physical displays on public property. Finally, Section III uses the Lemon-endorsement line of cases to illustrate issues likely to arise from a remedial sale of land. The section assumes an Establishment Clause violation caused by a permanent physical display on public land and analyzes how a defendant government might use a sale of land to remedy the violation.
