Originally uploaded at SSRN.

Abstract

The Establishment Clause forbids the government from engaging in the same religious exercise that the law protects when performed by a private party. Thus, an establishment case often turns on whether religious activity is "state action." Too often, however, courts ignore the state action analysis or merge it with the substantive Establishment Clause analysis. This muddles both doctrines and threatens individual religious liberty.

This Article argues that the state action doctrine should account for the government's distribution of private rights. Accordingly, the Constitution applies to the government's distribution of rights, but not to a private party's use of those rights.

This account of state action sharpens the substantive constitutional question in a variety of constitutional contexts, but it is an especially powerful tool in religious liberty cases. For instance, in Town of Greece v. Galloway the Court focused on whether the prayers offered by chaplains before town meetings ran afoul of the Establishment Clause because either they were too "sectarian" or the setting was too coercive. The distribution principle, however, demands a more precise attribution of responsibility. Greece was responsible for hosting prayers and choosing chaplains. By contrast, the chaplains were responsible for the content of their prayers. The content of any given prayer — including whether it was too "sectarian" — should not have been attributed to the government. A better factual description of what occurred is this: Greece distributed the right to offer a ceremonial prayer. The proper constitutional analysis, therefore, would focus on whether that distribution comported with the Establishment, Speech, and Free Exercise Clauses.

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