Part I of this Article provides an account of the Van Orden and McCreary opinions (and, in so doing, lays the foundation for the remainder of the Article). Part II describes the predominant Establishment Clause principles - neutrality and accommodation. Then, using the Van Orden and McCreary opinions, it identifies the supporters and opponents of each principle (as of last term) and, thus, shows which principle enjoyed majority support; sets forth the justifications given by the Justices for their positions; and illustrates the principles' outcome determinative nature. Part II concludes by considering whether the death of Chief Justice Rehnquist and the retirement of Justice O'Connor will have a significant impact on the Court's approach to Establishment Clause issues. In other words, it examines whether the appointment of Chief Justice Roberts and Justice Alito will result in the embrace of a new guiding principle by a majority of the Court. Part III demonstrates that, heretofore, the Court has not consistently applied any one principle; concludes (based on the results in, among other cases, Van Orden and McCreary) that neutrality is more faithful than accommodation to the purposes underlying the Establishment Clause (and, thus, to the Framers' intent); and argues for the consistent and honest application of the neutrality principle. Part IV begins by using Van Orden (specifically, the dissenting opinions and Justice Breyer's concurring opinion therein) to show that, on occasion, followers of the same principle - in Van Orden, the neutrality principle - resolve Establishment Clause challenges differently. However, Part IV then demonstrates (through an analysis of the aforementioned opinions) that faithful adherence to the tenets of the neutrality principle and the purposes underlying the Establishment Clause should circumscribe such occurrences with respect to followers of that approach. Part IV concludes by proposing a new approach for addressing Establishment Clause challenges that is consistent with the neutrality principle. The Article itself then concludes by resolving the hypothetical posed at the outset and offering some parting remarks.
Christopher B. Harwood,
Evaluating the Supreme Court's Establishment Clause Jurisprudence in the Wake of Van Orden v. Perry and McCreary County v. ACLU,
71 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol71/iss2/2