a. Souter addresses two issues: (1) Whether the Establishment Clause applies to governmental practices that do not favor one religion or denomination over others, and (2) Whether state coercion of religious conformity, over and above state enforcement of religious exercise or belief, is a necessary element of an Establishment Clause violation.
b. As to the first issue, he says that there is no conclusive evidence in the history of the First Am. that the framers intended support for non-sectarian religion as opposed to no religion at all. Since there is no conclusive evidence, Souter holds that the Establishment Clause forbids support for religion in general no less than support for one religion or some. Besides, the Court should not be some “comparative theological board” that distinguishes between “sectarian” religious practices and those that would be sufficient enough to pass Establishment Clause muster.
c. As to the second issue, Souter says the state while coercion may sometimes be sufficient to make out an Establishment Clause violation, proof of coercion is not a precondition for an Establishment Clause violation.
1. Kennedy seems to really focus on coercion in this opinion and in Alleghany, but Souter suggests coercion is a sufficient, but not a necessary, element of an Establishment Clause violation.
d. Finally, Souter somewhat addresses the dissent’s arg. re religious phrases on money and in the pledge who do not violate the Establishment Clause. Souter argues these do not violate the Establishment Clause because they are rarely notice, ignored without effort, conveyed over an impersonal medium, and directed at no one in particular. They “inhabit a pallid zone worlds apart from official prayers delivered to a captive audience of public school students and their families.”
1. That last sentence sounds like it was lifted out of a Don DeLillo novel (perhaps Mao II)! Dave says Souter’s point is not altogether convincing. Is an audience at a school graduation really anymore of a “captive audience” than an audience at a swearing-in ceremony?
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