Document Type

Working Paper

Publication Date

4-5-2009

SSRN Discipline

Legal Scholarship Network; PSN Subject Matter eJournals; *Humanities - Forthcoming Areas; Political Theory eJournals; Religious Studies Research Network; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Institutions eJournals; Humanities Network; Political Science Network

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 Circuits opinion in Adler v Duval County Adler involved a policy that permitted students to vote on whether to deliver opening andor 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 Countys policy I argue that the Eleventh Circuits analysis in Adler was wrong and indeed can be seen as little more than an act of willful resistance to the Supreme Courts opinion in Santa FeBeyond this simple doctrinal criticism however this Article suggests 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 Establishment Clause and the relationship between the Establishment Clause and the demographics of religion in local communities I argue that John Hart Elys representationreinforcement theory of judicial review presented in his influential work Democracy and Distrust can contribute significantly to our understanding of both of these issuesIn the first case Elys theory shows why majoritarian election processes that enable or encourage school prayer cannot generally insulate schools from Establishment Clause challenges In the second I argue that Elys theory can help dislodge the usual baseline assumptions about the religious pluralism 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 federal establishments of religion

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