Wednesday, October 05, 2005

Anthony Kennedy and the Establishment Clause

This web page provides an overview of the Supreme Court's application of the Establishment Clause of the First Amendment. Anthony Kennedy may soon be the swing vote in such cases (if Harriet Miers is confirmed). Here is an excerpt on how he may change the analysis:

Coercion test
Some justices propose allowing more government support for religion than the Lemon test allows. These justices support the adoption of a test outlined by Justice Anthony Kennedy in his dissent in County of Allegheny v. ACLU and known as the “coercion test.” Under this test the government does not violate the establishment clause unless it (1) provides direct aid to religion in a way that would tend to establish a state church, or (2) coerces people to support or participate in religion against their will. Under such a test, the government would be permitted to erect such religious symbols as a Nativity scene standing alone in a public school or other public building at Christmas. But even the coercion test is subject to varying interpretations, as illustrated in Lee v. Weisman, the 1992 Rhode Island graduation-prayer decision in which Justices Kennedy and Antonin Scalia, applying the same test, reached different results.

It hard to imagine how the 15 second announcement and invitation to do further reading outside of class contained in the Dover policy in the Kitzmiller case would violate such a coercion test.


At October 05, 2005 1:42 PM, Blogger Mike said...

Like your site - you're dead on. It seems reality has smacked you in the face, just as it has me!

Checkout my blog:


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