Document Type
Article
Publication Date
1980
Publication Information
27 UCLA L. Rev. 1195 (1979-1980)
Abstract
During its 1979 Term, the Supreme Court of the United States passed the ten-year mark in its employment of the so-called "excessive entanglement" test of the religion clauses. During the past decade this concept has developed from a simple expression of one of the accepted policy considerations underlying interpretation of the religion clauses to an identifiably separate test in establishment clause analysis. In this latter role, the Court has employed the concept to accomplish two distinct, although analytically related, objectives. First, it has sought to identify those legal and administrative relationships between civil and religious authorities which are likely to cause religiously-based discord or lead to an unacceptable degree of governmental support for religion. It has also attempted to isolate those broader religious-civil relationships which might well lead to religiously-based political divisiveness in our society. In the last several Terms of Court, moreover, the Justices have explicitly incorporated this concept into free exercise analysis. There it has been employed both as an important governmental interest to be weighed against free exercise claims and as a measure of the free exercise claim itself.
Anniversaries are traditional occasions for reflection and reassessment. This particular anniversary presents an especially suitable occasion for such critical evaluation since, during this last Term, the Court itself noted quite candidly that, at least with respect to the establishment clause, it plans to engage in such a reassessment at its own conference table. The purpose of this Article is to contribute to this reappraisal by addressing three essential aspects of any such doctrinal re-evaluation. First, the Article will critically evaluate the impact of the entanglement concept on the jurisprudence of the religion clauses. Next, it will identify the practical problems inherent in the implementation of this test. Lastly, the probable future directions of "excessive entanglement," assuming it remains a viable analytical tool, are tentatively appraised.
Recommended Citation
Kenneth F. Ripple,
The Entanglement Test of the Religion Clauses -- A Ten Year Assessment,
27 UCLA L. Rev. 1195 (1979-1980).
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/457