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Pounding a Final Stake in the Heart of the Invidiously Discriminatory ?Pervasively Sectarian? Test

By Alliance Alert

This Article in Part I traces the rise and fall of the pervasively sectarian test from its creation in the 1970s through Justice Thomas's attack in Mitchell v. Helms, and highlights the ever-shifting standards and lack of clarity in this area of First Amendment jurisprudence. Part II focuses on the post-Mitchell confusion in the lower courts due to the Court's shifting standards and lack of clarity. Part III examines the executive branch's approach to the test as demonstrated in the Faith-Based and Community Initiative. Finally, Part IV considers the best hope to both eliminate the confusion in the lower courts and correct the flaws in the executive branch's approach, by following the Tenth Circuit's recent analysis in Colorado Christian University v. Weaver and driving the stake of neutrality through the heart of the invidiously discriminatory pervasively sectarian test

Full post as published by Constitutionally Correct on March 25, 2009 (boomark / email).