Supreme Court decisions based on the establishment clause in the U.S. Constitution have often drawn arbitrary lines. For example, although a state may lend secular, state-approved textbooks to children attending religious schools, it may not lend the same students maps, erasers, charts, or any other kind of educational materials. This Article explains how the Supreme Court has reached the point where it is drawing such arbitrary lines and suggests a new analysis. The author argues that this new analysis would lead to more consistent results in parochial school aid cases and would safeguard the important interests that the establishment clause should protect. He suggests that the core concern of the establishment clause is religious liberty, and argues for religious liberty as the benchmark of establishment clause analysis. He applies this analysis to governmental efforts to assist parochial schools and concludes that religiously neutral parochial school aid programs do not violate the establishment clause.
Eric J. Segall,
Parochial School Aid Revisited: The Lemon Test, the Endorsement Test and Religious Liberty,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol28/iss2/3