The document discusses the various approaches the Supreme Court has taken in Establishment Clause cases regarding the separation of church and state. It outlines seven approaches: 1) Separationism 2) Accommodationism 3) Neutrality 4) Endorsement 5) No Coercion 6) Strict Neutrality 7) Equal Treatment/Evenhanded Neutrality. For each approach, it provides a brief overview of the logic and examples of associated Supreme Court cases.

1. RELIGION AND THE
AMERICAN
CONSTITUTIONAL
EXPERIMENT
Chapter 7
Modern Establishment Law

2. Mapping the Doctrinal Terrain

One of the most distinctive principles of the
American constitutional experiment in religious
liberty is the prohibition on establishments of
religion.

Many founders argued that disestablishment of
religion was ultimately the best way to protect
all the essential rights and liberties of religion.

3. Bringing an Establishment Clause
Case

At the heart of an establishment case is a
claimant’s challenge that the government has
made a law establishing religion or
“respecting” the same.

The challenge posed by an establishment
clause litigant is that the government has
improperly funded, supported, or endorsed
religion.

4. Mapping the Establishment Clause
Cases


The Court has developed a number of unique,
approaches in its establishment cases.
From 1947 to the mid-1980s:
1.
2.
3.

Separationism
Accommodationism
Neutrality
Since the mid-1980s:
4.
5.
6.
7.
Endorsement
Coercion
Equal treatment
History and tradition

5. Separationism

A key principle at work in modern establishment
law is the separation of church and state.

This principle has firm historical roots in the
writings of eighteenth-century Enlightenment and
Evangelical groups.

Separationist logic found its most consistent
application in a long series of cases outlawing
religious officials, texts, ceremonies, and symbols
from public schools.

6. Accommodationism

Accommodationists are the modern heirs of
Puritan and Civic Republican founders.

Both Puritan and Civic Republicans argued that
every polity must support some form of public
religion, some common morals and mores to
undergird and support the plurality of protected
private religions.

Accommodationist logic found its strongest hoed
in some of the Court’s cases on the place and role
of government in religious schools.

7. Neutrality



Beginning in the early 1960s, the Court made
neutrality itself a new operative principle of
establishment.
The Court argue that strict separation between
church and state is impossible in today’s
society in which government plays such a
pervasive role in day-to-day affairs.
Since the mid-1980s, individual justices have
begun to experiment with alternative
approaches to establishment.

8. Endorsement

The endorsement approach to the
establishment clause was largely the creation
of Justice Sandra Day O’Connor.
 She
argued that the establishment clause forbids
governmental endorsement or disapproval of
religion.
 Government accommodations of religion, if
applied without discrimination for or against any
one religious person or group, are acceptable.

9. No Coercion


Justice Kennedy has occasionally lifted up
“coercion” as a central concern of the
establishment clause.
He argued that the establishment clause is
designed to protect liberty of conscience and
the autonomy of religious groups, and not to
purge the public square or public policy of all
religion.

10. Strict Neutrality

According to Justice Souder, the endorsement
approach is too unpredictable, and the coercion
approach is too narrow to outlaw more subtle
forms of religious discrimination or favoritism that
are forbidden by the establishment clause.

Justice Souder has used his neutrality approach to
challenge various governmental accommodations of
religion or cooperation with religious officials in the
public school or the public square, for such actions
favor religion over nonreligion.

11. Equal Treatment/Evenhanded
Neutrality


The “equal treatment” or “equal access” or
“evenhanded neutrality” approached overlaps
heavily in terminology with the neutrality
approach and is somewhat consistent with the
endorsement approach.
Equal treatment exponents allow government
funding or alliances with religion so long as
nonreligious parties that are similarly situated
receive comparable treatment.

12. History and Tradition

In a few recent cases, the Court has used
tradition or history to uphold a practice against
an establishment clause challenge,
disregarding all other approaches in the
process.

The Court has used arguments from history
and tradition as part of broader rationales for
upholding religious tax exemptions and
Sabbath Day laws.