Summary
Presser comments on Kent Greenawalt's arguments on how the court is transforming previous Establishment Clause jurisprudence and threatening core ideas of separation of church and state. Greenawalt is concerned that the Court may not be enforcing separation between church and state as effectively as he believes is necessary to protect the rights of outsiders.
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Extract
Outsiders, Swing Justices, and Original Understanding: Can the Religion Clauses Be Saved? A Comment On Greenawalt
I have known Kent Greenawalt for many years and have great admiration and respect for him. He is a wonderful colleague, a kind and generous man, and an exceptionally dedicated scholar. In his piece,1 he does a splendid job articulating the recently-dominant Supreme Court doctrines with regard to free exercise and establishment, and I have no quarrel with his exposition. Where I differ with him is over what I take to be his plea for the revival or reinvigoration of these doctrinal tests for determining whether unconstitutional actions have occurred. In particular, Greenawalt embraces the Lemon test2 for determining if establishment clause violations have occurred, and the recently-rejected "compelling interest" test for determining if "free exercise" rights have bee...
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