Publication Date

2008

Abstract

This Article, a contribution to a symposium on the constitutional jurisprudence of the United States Court of Appeals for the Eleventh Circuit, focuses on the Eleventh Circuit's opinion in Adler v. Duval County. Adler involved a policy that permitted students to vote on whether to deliver opening and/or closing "messages" at high school graduation ceremonies. The Eleventh Circuit, sitting en banc, upheld the policy against an Establishment Clause challenge. After the Supreme Court remanded the case for reconsideration in light of its decision in Santa Fe Independent School District v. Doe, which outlawed a similar policy in the context of high school football games, the court, insisting that Santa Fe was distinguishable, again upheld Duval County's policy. I argue that the Eleventh Circuit's analysis in Adler was wrong, and indeed can be seen as little more than an act of willful resistance to the Supreme Court's opinion in Santa Fe. Beyond this simple doctrinal criticism, however, this Article sug- gests that both Santa Fe and Adler are fruitful subjects of study for what they say about two issues that have drawn relatively little sustained and serious attention: the role of majoritarian elections within the Establish- ment Clause, and the relationship between the Establishment Clause and the demographics of religion in local communities. I argue that John Hart Ely's representation-reinforcement theory of judicial review, presented in his influential work Democracy and Distrust, can contribute significantly to our understanding of both of these issues. In the first case, Ely's theory shows why majoritarian election processes that permit or encourage school prayer cannot generally insulate schools from Establishment Clause challenges. In the second, I argue that Ely's theory can help dislodge the usual baseline assumptions about the religious plu- ralism of the United States, which are accurate at the national level but collapse at the level of the overwhelmingly religiously homogeneous local communities in which many Establishment Clause cases arise. On this understanding, I argue that, contrary to some recent arguments, the Establishment Clause might best be understood as being more properly concerned with state and local establishments of religion than with fed- eral establishments of religion.

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