Passive Observers, Passive Displays, and the Establishment Clause

Mark Strasser, Passive Observers, Passive Displays, and the Establishment Clause, 14 Lewis & Clark Rev. 1123 (2010); Online at: http://www.lclark.edu/livewhale/download/?id=5620

This Article examines jurisprudence surrounding state action, and when that action does and does not violate the Establishment Clause. Division within the Court regarding what constitutes a “passive” state practice has complicated Establishment Clause analyses for lower courts, as evidenced by the chaotic case law on the issue. Because the Court has advanced very little clear guidance on Establishment Clause standards, lower courts issue widely varying opinions and reasoning on the matter, as explored by this Article.