In Defense of the Secular Purpose Status Quo

Note — Volume 102, Issue 8

102 Va. L. Rev. 2075
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The secular purpose rule, one prong of the Supreme Court’s interpretation of the Establishment Clause of the First Amendment, requires that government action be justified by a primary, genuine secular purpose. Government actions supported only by religious beliefs, therefore, are unconstitutional. A debate about the morality of the secular purpose rule has emerged, with the main arguments tending to view religious beliefs as either permissible or impermissible. This Note argues that rather than decide purely for or against the secular purpose rule, courts should maintain the current status quo, which is underenforcement of the rule.

To justify this approach to resolving the secular purpose debate, this Note analyzes common arguments made for and against the rule, and distills each argument to its core animating political value. The arguments against the secular purpose rule are motivated by the value of political access, while arguments for the secular purpose rule are motivated by the value of political legitimacy. Underenforcement creates equilibrium between these political values.

Some may worry that underenforcement will change the underlying meaning of the secular purpose rule. But a constitutional requirement can retain its full meaning and be legally binding even if underenforced. Another possible objection is that underenforcement would be tantamount to nonenforcement. To respond to that objection, this Note attempts to canalize underenforcement by marking out situations in which the secular purpose rule should be fully enforced. When, for example, underenforcement would allow discrimination against vulnerable groups, the secular purpose rule should be enforced. 

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