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Conference Proceeding


The Establishment Clause Mess, 69 Oregon Law Review 495 (1990)


Tonight's lecture is entitled The Establishment Clause Mess. Before I get into it too deeply, I would like to sketch out two distinctions: one descriptive, one normative. The descriptive point that I would like to make is that to call the establishment clause a mess—as I believe that it is—is to make an analytical claim. My intention is to criticize establishment clause jurisprudence, and you will hear me do so. But that is not the same as saying that no establishment clause is needed. The distinction is between referring, on the one hand, to an establishment clause, the theoretical argument for a form of separation of church and state, and, on the other hand, to The Establishment Clause, capital T, which is shorthand for the particular doctrinal baggage with which our establishment clause has been saddled. That is my descriptive distinction.

The normative distinction that I want to draw is really by way of laying out my own interpretive position. I am quite certain that the first amendment's establishment clause should be read at a minimum to prohibit certain entanglements between government and religion (it is unnecessary at this point to specify which) and, in particular, that the clause outlaws efforts by government to coerce religious belief. That explains, for example, why the Supreme Court's decisions forbidding public schools to conduct organized classroom prayer led by a teacher are plainly right, even though most Americans continue to oppose them. But to say that an establishment clause is necessary is not the same as saying that the one we have—that is, the one that the federal courts have given us—is the one that we need. I shall argue tonight that it is not.

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