Notre Dame Law Review

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Steven T. Collis*

For decades, scholars and jurists have debated over whether government violates the Establishment Clause when it endorses religion or if coercion is required.  In Kennedy v. Bremerton School District, the Supreme Court put this argument to rest, at least as to public employees.  It grounded its decision in some form of originalism.  While that will be sufficient to satisfy some readers, others will want to be assured of the wisdom of the rule originalism demands.  This Essay argues that a coercion test for the private religious exercise of public employees is appropriate for a pluralistic society.

It offers four reasons.  First, a no-endorsement test applied to private religious exercise would yield absurd results; namely, preventing those of minority faiths from pursuing public employment.  Second, a coercion test for public employees will ensure the public sector—most importantly, schools—reflects our religiously diverse society, which is important for preparing people to live in that society.  Third, a coercion test is administrable because it lacks the pliability of the no-endorsement test.  And fourth, a coercion test is more consistent with the principle of preserving religious voluntarism.

© 2024 Steven T. Collis.  Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review Reflection, and includes this provision in the copyright notice.

*Clinical Professor of Law, University of Texas School of Law, and faculty director of the Bech-Loughlin First Amendment Center.  I would like to thank Stephanie Barclay, Robin Fretwell Wilson, Stephen Greene, Jennifer Psirogiannis, Seth Smitherman, Adam Mackenzie, Michael Mudrow, and the Notre Dame student editors for helpful comments, research, and editing.