St. Mary's Law Journal


Instead of continuing down the path of confusing, contradictory, and inconsistent nonestablishment clause decisions, the Court should opt for a new approach—benign neutrality. The Court currently follows one of three general approaches when deciding nonestablishment clause issues—Wall of Separation theory, Strict Neutrality theory, or the Accommodation theory. None of these three approaches has led to any clear standards or principles. The Wall of Separation theory has been argued to be the most historically accurate representation of the Framer’s intent, but that is inaccurate. Instead, the Framers pursued religious freedom instead of complete separation in order to partially avoid usurpation by the federal government of the state’s authority in religious matters.   The three-prong test that has emerged from recent case law is inadequate—both in historical and modern understandings of what is constitutionally allowable under the First Amendment, including the language of the First Amendment itself. The test provides virtually no guidance for determining the proper interplay between church and state, and its absolutist approach is a barrier, rather than an aid, to enlightened constitutional analysis. The three current nonestablishment theories used by the Court have led to great difficulty adjudicating church-state matters due to the conflicting and unprincipled decisions by the Court. Instead of relying on the three existing dysfunctional theories, the Court should adopt Benign Neutrality as the new approach to nonestablishment clause issues. Benign neutrality remains faithful to constitutional text and history, it is consistent and workable, and it is harmonious with the free exercise clause.


St. Mary's University School of Law