The Death and Resurrection of Establishment Doctrine

Authors

Gerard V. Bradley

Abstract

Lead Article

The biggest news of the Supreme Court's 2021-22 term was the Court's "abandonment" of Lemon v. Kurtzman as the default test for Establishment Clause jurisprudence. For a full half-century, Lemon v. Kurtzman defined what our constitutional separation of church and state meant. But now the Court has definitively laid it to rest. The important question of church-state relations stands at a strategic fork in the road that the Court has not faced since 1962, and perhaps not since 1947. Justice Gorsuch complained that Lemon demonstrably failed as law. That it was a judicial tool that flopped by every measure of institutional usefulness. But this indictment leaves the most important part out. What's missing from his story is the dark protagonist of the piece: secularism. It is (was) the beating heart of Lemon and the ground-norm of the church-state corpus it animated for decades. It was incompatible with our history and traditions and current practices. The whole story behind Lemon is told by the Justices as if beheld very dimly. It is like a garbled communication that nonetheless succeeds, if most carefully reconstructed, in communicating its message. This Article is that reconstruction. It is a charitable interpretation of the Court's narrative, stating the most coherent sense of what the Court says for the sake of going forward into this new dawn of Establishment law. The subject of Part II is the ambitious secularity of Lemon. It's two norms about government action it must have a "secular" legislative purpose and it must not have the "primary" effect of advancing religion embody that secularity. It is these which have been "ignored" and bypassed in so many cases. Part III investigates whether the Supreme Court starting in 1947 even claimed to find this normative secularism in the Establishment Clause. Spoiler alert: it made no such claim. Part IV continues this detective story by answering the question: if not in the Constitution, then whence came the judicial secularizing project? Finally, Part V compiles a series of candid confessions that the Establishment Clause "merely" prohibits preferences among churches and denominations. Ultimately, the meaning of the Clause has been hiding in plain sight all along.

First Page

1

Recommended Citation

Gerard V. Bradley, The Death and Resurrection of Establishment Doctrine, 61 Duq. L. Rev. 1 (2023).
Available at: https://dsc.duq.edu/dlr/vol61/iss1/2