A survey of Establishment Clause doctrines and commentary reveals that the Clause is often interpreted as a minority rights provision, protecting religious and nonreligious minorities from being exposed in certain ways to society's dominant religions. This Article argues against such an interpretation. It portrays the Establishment Clause as a structural provision of the Constitution, concerned with democratic processes and limited government, much like the doctrines of federalism and separation of powers. This Article also asserts that democratic values and concern for majority rule constitute core values of the Establishment Clause. Whereas the Free Exercise Clause protects minority rights, the Establishment Clause protects the democratic, majoritarian aspect of religion. The Establishment Clause guards the side of religious freedom involving the right to gather into groups that in turn interact with the public sector of society. Hence, the Establishment Clause should not be interpreted in a way that limits the right of religious groups to publicly assert their messages or that confines their social outreach activities to some private sphere within society.
Garry, Patrick M.
"The Democratic Aspect of the Establishment Clause: A Refutation of the Argument that the Clause Serves to Protect Religious or Nonreligious Minorities,"
Mercer Law Review: Vol. 59:
2, Article 3.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol59/iss2/3