Caroline Mala Corbin
89 Texas L. Rev. See Also 125
Professor Richard C. Schragger has identified current underenforcement of the Establishment Clause. However, he may not have identified the right reasons for this underenforcement, Professor Corbin argues. Rather, state actions with persuasive secular justifications may not implicate the Establishment Clause to the extent that Professor Schragger believes. Moreover, apparently problematic statements of government officials may be protected as private speech. Finally, fear of backlash against minorities may animate underenforcement.
Furthermore, Professor Corbin is unconvinced that decentralization is the answer given the benefits of disestablishment, costs of abandoning disestablishment norms, Professor Schragger’s privileging of conflict avoidance over other Establishment Clause norms, and the potential for backlash against religious minorities.
Professor Corbin argues that these observations may lead to different conclusions than those of Professor Schragger.