As a number of commentators have observed, the Supreme Court's record in adjudicating the free exercise claims of religious minorities—in particular, unfamiliar and unpopular religious minorities—is vulnerable to the critique that the Court's rhetoric and, at times, the Court's holdings demonstrate an inability or unwillingness to look beyond majoritarian religious perspectives. Building on this scholarship, this article analyzes the Court's adjudication of Establishment Clause cases in the context of different religious perspectives, including those of religious minorities, religious minorities, and nonbelievers.
In exploring these questions, this article traces the Court's Establishment Clause jurisprudence through several decades, examining a number of landmark cases through the prism of religious minority perspectives. In so doing, the article aims to demonstrate the significance of religious perspectives in the development of both the doctrine and rhetoric of the Establishment Clause. The article then turns to the current state of the Establishment Clause, expanding upon these themes through a close look at the 2004 and 2005 cases Elk Grove Unified School District v. Newdow, Van Orden v. Perry, and McCreary County v. American Civil Liberties Union of Kentucky. The article concludes that the ongoing debates among Supreme Court Justices over the relevance of religious minority perspectives contribute to more general divisions that continue to characterize the current state of the Court's Establishment Clause jurisprudence.
Samuel J. Levine,
A Look at the Establishment Clause through the Prism of Religious Perspectives: Religious Majorities, Religious Minorities, and Nonbelievers,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol87/iss3/5