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15 Wm. & Mary Bill Rts. J. 1 (2006)


Thirty-five years ago, in his landmark Lemon v. Kurtzman opinion, Chief Justice Warren Burger declared that state actions could "excessive[ly]"—and, therefore, unconstitutionally—"entangle" government and religion, not only by requiring or allowing intrusive monitoring by officials of religious institutions and activities, but also through their "divisive political potential." He worried that government actions burdened with this "potential" pose a "threat to the normal political process and "divert attention from the myriad issues and problems that confront every level of government." And, he insisted that "political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. " Accordingly, he concluded that the parochial-school-funding programs under review in Lemon were unconstitutional, not only because they "foster[ed] an impermissible degree of entanglement" between government and religion, but also because they were likely to "intensif[y]" "[p]olitical fragmentation and divisiveness on religious lines."

As I have described in detail elsewhere, Chief Justice Burger's view that the First Amendment not only authorizes, but also invites, judges to look to their observations and predictions of political division along religious lines for the enforceable content of the Establishment Clause has, since Lemon, been endorsed and employed by many scholars, judges, commentators, and citizens, in many cases and contexts. More generally, the claims that America is divided and religion is divisive are unavoidable in—indeed, they animate and shape—much of what is said and written today about law, politics, religion, and culture.

The distinguished contributors to this symposium examine and unpack the many empirical, doctrinal, and normative presuppositions and assumptions implied by its title, "Religion, Division, and the Constitution."



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