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Religion / State: Where the Separation Lies
ExpressO (2012)
  • Vincent J. Samar, Chicago-Kent College of Law

The article traces the history of the establishment clause including various court tests that have been used to interpret it, discusses various contemporary justifications for the clause, and culls from those justifications why the “accommodationist” approach sometimes used by the Court must be rejected.

I then introduce the ethical Doctrine of Double Effect to reconsider other tests the Court has applied (total separation, endorsement, neutrality and coercion), ultimately to justify a new neutrality test that provides a clearer understanding of the principles behind non-establishment. I show how the new neutrality test could be used in resolving future cases, for example, the constitutionality of the Obama administration’s recent set of directives about employers providing health insurance coverage for contraception.

Publication Date
August 2, 2012
Citation Information
Vincent J. Samar. "Religion / State: Where the Separation Lies" ExpressO (2012)
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