The Constitution of Religious Liberty: Religion, Power and the Birth of the Secular Purpose Test, 1844-1971 Open Access

Latterell, Justin Jon (2014)

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This dissertation analyzes antecedent forms of a legal doctrine known as the "secular purpose test" as a case study in secularization theory. The primary focus is on cases argued in the U.S. Supreme Court and lower courts of constitutional review between 1844 and 1971. Constitutional law contributes to the process of separating the social spheres of government and religion, and specifying distinct forms of organization, moral understanding, reasoning, and imagination for each sphere. The secular purpose test is a controversial standard of constitutional review that U.S. courts presently use to evaluate religious liberty claims pursued under the First Amendment's Establishment Clause. This dissertation describes the test's historical and conceptual underpinnings, its implications for the differentiation of religious and legislative spheres, and its potential effects on the forms and functions of religious expression in legislative spheres. The secular purpose test was first introduced in 1963. It conflated the Supreme Court's conclusion, in previous cases, that "secular education" served legitimate "public purposes" into a blunt requirement that laws must have a "secular legislative purpose" in order to pass constitutional review under the Establishment Clause. The secular purpose test subsequently displaced longstanding methods of constitutional review by which courts had measured the purposes of contested laws not in terms of their secularity, as such, but in terms of the specific powers of legislative bodies to promote a range of social goods, or legislative ends. This innovation yields a novel form of functional and institutional differentiation between religious and legislative spheres via constitutional law, rendering legislative spheres definitively secular, and implicitly privatizing religious moral norms and idioms. As such, the secular purpose test forestalls potentially valuable forms of legislative and moral discourse between religiously and non-religiously diverse constituencies.

Table of Contents

Preface: Notes on an Address from David Josiah Brewer: 2

Introduction: Secularization and the Constitution of Religious Liberty: 7

Section 1: Legislative Powers and Disestablishment Norms: 32

Chapter 1: Orphans, Education, and Infidelity: 36

Chapter 2: Remember the Sabbath (without Keeping it Holy): 69

Chapter 3: The Sisters of Charity and their Secular Hospital: 89

Section 2: Legislative Powers and the Free Exercise of Religion: 120

Chapter 4: The Priest, the Parishioners, and the Police Powers: 124

Chapter 5: Polygamy and the Enlightened Sentiment of Mankind: 150

Chapter 6: The Foreign Preacher and His Labor: 183

Section 3: The Birth of the Secular Purpose Test: 208

Chapter 7: An Emerging National Tradition: Religious Liberty in American Legal Thought, circa 1900: 212

Chapter 8: The Centralization of Religious Liberty, 1900-1947: 247

Chapter 9: Birth of the Secular Purpose Test, 1947-1971: 281

Conclusion: Here Comes the Post-secular Purpose Test: 329

Bibliography: 367

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