The State Action Doctrine and the Establishment Clause
123 Harv. L. Rev. 1278 (2010)
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Of course, the state action doctrine does not answer all Establishment Clause questions–in particular, it does not help identify whether an activity is religious in nature. This Part argues, however, that when the sectarian nature of constitutionally questioned activity is determined, the state action doctrine furnishes courts with a clearer and more coherent legal framework for evaluating Establishment Clause cases than does automatic application of the Lemon test. Section A provides a theoretical justification for the application of the state action doctrine to Establishment Clause jurisprudence, and the following sections examine Cooper, Americans United, and Community House–three cases that demonstrate why and how the state action doctrine should be applied.
