The "Clearest Command" of the Establishment Clause: Denominational Preferences, Religious Liberty, and Public Scholarships That Classify Religions

Authors

Richard F. Duncan, University of Nebraska College of LawFollow

Date of this Version

2010

Citation

South Dakota Law Review (2010) 55(3): 390-412.

Comments

Copyright 2010, South Dakota School of Law. Used by permission.

Abstract

The purpose of this article is to analyze the Supreme Court's doctrine prohibiting denominational preferences with a view toward mapping out the boundaries of the doctrine in light of its animating principle of free religious competition. I will then attempt to apply the "clearest command of the Establishment Clause" to the facts of a recent free exercise decision of the Court, Locke v. Davey. Although the Court in Davey rejected a free exercise challenge to a state scholarship program that denied funding to students pursuing college degrees in "devotional theology," I will suggest that this exclusion creates a denominational preference that appears to violate the Establishment Clause and the teachings of Larson. Indeed, I will argue that Larson applies with particular force in cases in which religious lines are drawn by funding laws in which the benefit "if applied uniformly to all religions" would comply with the Establishment Clause.