25 Const. Comment. 273 (2008-2009)
This paper is the author’s contribution to a roundtable conference, held in October of 2008 at Notre Dame Law School, devoted to Prof. Kent Greenawalt’s book, Religion and the Constitution: Establishment and Fairness. It is suggested that Greenawalt’s admirably context-sensitive approach to church-and-state questions might lead us to think that the best course for judges is to find (somehow) some bright-line, on-off “rules” and “tests”, constructed to identify and forbid the most obvious violations of the Religion Clause’s core (whatever that is), and to give up on -- or, perhaps, “underenforce” -- the rest.
Richard W. Garnett,
Judicial Enforcement of the Establishment Clause,
25 Const. Comment. 273 (2008-2009).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/91
Reprinted with permission of Constitutional Commentary.