While the Supreme Court struggles to find solid footing for its Establishment Clause jurisprudence, it is rare that attention is given to this particular inconsistency. Instead, courts in the Establishment Clause context have done exactly what they condemn in the free-exercise context: evaluate the veracity of a claimant’s sincere beliefs. This Note attempts to reconcile this conflict between the hands-off approach to the Free Exercise Clause and the hands-on approach to the Establishment Clause. Part I of this Note summarizes current Free Exercise and Establishment Clause jurisprudence, and, in doing so, highlights this point of conflict between the Clauses. Part II proposes a rule to reconcile these clauses by eliminating judicial consideration of the veracity of a claimant’s beliefs in all First Amendment cases. Part III assesses the practical implications of this rule and how it stands up to scholarly criticisms of existing Supreme Court jurisprudence.
To read this Note, please click here: Religious or Not Religious? That is Not the Establishment Clause Question