Law, College of
Nebraska Law Bulletin (Selected Issues)
Date of this Version
3-23-2024
Document Type
Article
Citation
Nebraska Law Bulletin (March 23, 2024)
Abstract
Clause jurisprudence has strayed far from its original roots, leaving a string of nonsensical decisions, on every topic, in its wake. Kennedy v. Bremerton School District can serve as the North Star, guiding courts back to a consistent standard of history and tradition, but it alone will not be sufficient. Courts should return to the original force and funds view of the framers by making actual legal coercion the cornerstone of Establishment Clause standards. This clear-cut standard would save the courts from subjectivity and help heal the fractured precedent, leaving room for reasonable and consistent application. If the Court returned to this perspective, “every acknowledgment of religion would not give rise to an Establishment Clause claim, [and] [c]ourts would not act as theological commissions, judging the meaning of religious matters.” Actual legal coercion could provide a predictable answer for most Establishment Clause cases, leaving individuals confident in their ability to enjoy religious liberty and freedom of conscience. The United States has been known for its freedom of religion, even when it includes a possibility of religious strife. Courts cannot allow that practice to be stifled.
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