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Constitutional Law • First Amendment - Religion
CONLAW#158
Legal Definition
The 1st Amendment Establishment Clause prohibits laws respecting the establishment of religion. If a law contains a sect preference or discriminates against religious speech, it is subject to strict scrutiny. For laws or government actions without a sect preference, courts must now analyze them by reference to historical practices and understandings to determine if they align with the traditions and intentions of the Founding Fathers regarding the Establishment Clause.
Plain English Explanation
This rule used to be more clear to follow. Prior to 2022, there was something called the <Lemon Test>, which provided a framework to assess whether the government had crossed a line in favoring one religion over another. That test was abandoned when the Supreme Court ruled in Kennedy v. Bremerton School District. The new rule still follows that strict scrutiny is required if the government is explicitly supporting a specific religion (or specifically attacking a religion), but beyond that, it is now possible for religious beliefs to overlap into government activities if you can argue that such religious beliefs are part of a long held "tradition" dating back to the country's founding. We're not quite sure what that means yet, but critics have argued this basically is a loophole to favor Christianity over other religions by virtue of the fact that other religions so-happened to not be as prevalent amongst the white folks who are credited with founding the United States.
In other words, this rule is currently something like, "The government must treat all religions on the bus equally and fairly, but Christianity gets to sit in the front row and have first dibs on snacks, and no other religions get to sit in Christianity's seat because Christianity has traditionally always gotten to sit in the front, so it's fair... for... reasons."
In other words, this rule is currently something like, "The government must treat all religions on the bus equally and fairly, but Christianity gets to sit in the front row and have first dibs on snacks, and no other religions get to sit in Christianity's seat because Christianity has traditionally always gotten to sit in the front, so it's fair... for... reasons."
