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It is customary to begin a discussion of the Establishment Clause of the Constitution with a lament about the problematic state of jurisprudence in this important and controversial constitutional field. The typical claim we encounter holds that Establishment Clause doctrine is inconsistent or confusing at best, if not incoherent and contradictory at worst. As long ago as 1985, then–Associate Justice Rehnquist argued in Wallace v. Jaffree, “[I]n the 38 years since Everson our Establishment Clause cases have been neither principled nor unified.”1 This was particularly evident, he said, in school-related cases: For example, a State may lend to parochial school children geography textbooks that contain maps of the United States, but the State may not lend maps of the United States for use in geography class. A State may lend textbooks on American colonial history, but it may not lend a film on George Washington, or a film projector to show it in history class. A State may lend classroom workbooks, but may not lend workbooks in which the parochial school children write, thus rendering them nonreusable. A State may pay for bus transportation to religious schools but may not pay for bus transportation from the parochial school to the public zoo or natural history museum for a field trip. A State may pay for diagnostic services conducted in the parochial school but therapeutic services must be given in a different building; speech and hearing “services” conducted by the State inside the sectarian school are forbidden, . . . but the State may conduct speech and hearing diagnostic testing inside the sectarian school. Exceptional parochial school students may receive counseling, but it must take place outside of the parochial school, such as in a trailer parked down the street. A State may give cash to a parochial school to pay for the administration of state-written 1 Wallace v. Jaffree, 472 U.S. 38 (1985), at 107 (dissenting opinion). See also Justice Scalia’s view of Establishment Clause jurisprudence in n. 11 and its relevant text in chap. 4 supra. 143 Chapter 5 The Concept of Coercion in Establishment Clause Jurisprudence tests and state-ordered reporting services, but it may not provide funds for teacher-prepared tests on secular subjects. Religious instruction may not be given in public school, but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws.2 By 2006, two decades later, nothing seemed to have changed. Among scholars, this example is representative of the usual criticism: Few areas of U.S. Supreme Court interpretation have attracted such strong and universal criticism as the Court’s Establishment Clause jurisprudence. Over the half century that the Court has been deciding cases under the Clause, its muddled and inconsistent decisions have confounded scholars, lower courts, and at times, even members of the Court itself. So far, this tangled body of doctrine has resisted every attempt to bring clarity, predictability , and coherence to the constitutional standard for evaluating state action under the Clause.3 According to Steven Gey, one of the most interesting commentators on the constitutional and political theory of religion-clause jurisprudence, “It is by now axiomatic that the Supreme Court’s Establishment Clause jurisprudence is a mess—both hopelessly confused and deeply contradictory .”4 If we are to have any hope of overcoming this problem, an attempt to clarify the contested and confusing state of Establishment Clause jurisprudence must begin with a recurrence to and restatement of first principles. My purpose in this chapter is not to propose a new test for deciding cases, but to begin to identify and unpack the substantive principle embodied in the Establishment Clause that would underlie any such test. The first element of that principle involves the concept of coercion, typically associated with a free-exercise rather than establishment violation . This chapter seeks to explore the way the Court has used the concept of coercion and to develop a richer version that can explain how and why an establishment violation affects religious freedom. Such first principles are both formal and substantive in nature. Formal principles have to do with the logic of constitutional interpretation, of which there are two dimensions. First, we do well to recall the distinction between statutory construction and constitutional interpretation, which is the distinction between application and authority. The central issue in statutory construction is always the question of how a given statute 2 Wallace v. Jaffree, at 110–11, footnotes...

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