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Hastings Constitutional Law Quarterly

Abstract

In several federal cases concerning whether particular statutes or policies violate the First Amendment's prohibition of religious establishment, both the United States Supreme Court and other federal courts have rejected the constitutionality of these laws and policies on the grounds that they have an exclusively religious purpose. Part of the courts' analyses in some of these cases rely on the apparent religious motives of the statute's or policy's sponsors and/or citizen-supporters as the basis by which the courts infer that the law or policy in question has a religious purpose.

I argue in this paper that this sort of analysis may violate the no Religious Test Clause section of Article VI of the U. S. Constitution as well as the prohibition of punishing or rewarding citizens based on their beliefs. I also argue that the judiciary's failure to appreciate these possible violations is the result of embracing a mode of analysis, when applied to the origin and purpose of statutes and policies, that is based on a conflation of the terms "motive" and "purpose" as well as a mistake in thinking that the reasons employed to justify laws and policies are the same as the beliefs that motivate the persons who support them. And because of these confusions, the judiciary in effect limits the enumerated powers of legislators and provides a perverse incentive for both citizens and legislators to pretend that their motives are not religious in order to convince a skeptical judiciary that the laws and policies they support have secular purposes. Learning from the judiciary's example, activists now draw pejorative attention to the apparent religious motives of citizens and legislators in order to shore up popular support against, and influence future cases on, legislation they think violates the Establishment Clause of the First Amendment.

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