Rick asks an excellent question; the doctrinal answer seems to be
that some behavior -- such as coercion of religious practice -- is
categorically unconstitutional, with no strict scrutiny exception, but
the Court often talks about rights as being absolute and then turns
around and sets up some strict scrutiny exception (even if it concludes
that exception is inapplicable). Compare, e.g., Everson's talk of no
preference among religions with Larson v. Valente's strict scrutiny for
denominational discrimination (under the Establishment Clause, in fact).
The tough question is to come up with a concrete example of where
some compelling interest would indeed be in play. Rick, what examples
did you have in mind?
Eugene
________________________________
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Sunday, July 22, 2007 12:07 PM
To: Law & Religion issues for Law Academics
Subject: EC & Compelling Interest
A question for this august body of learned friends:
When a state violates the EC, is this absolutely
unconstitutional or may the state attempt to show a compelling interest
to justify an establishment? Does any SCt case clearly focus on this
issue? Are there good law review articles addrsssing it?
Does it matter what kind of EC violation the state has
committed?
Cheers, Rick Duncan
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"It's a funny thing about us human beings: not many of us doubt
God's existence and then start sinning. Most of us sin and then start
doubting His existence." --J. Budziszewski (The Revenge of Conscience)
"Once again the ancient maxim is vindicated, that the perversion
of the best is the worst." -- Id.
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