Coercion and Choice Under the Establishment Clause

In recent Establishment Clause cases the Supreme Court has found nondenominational, state-sponsored prayers unconstitutionally coercive -although attendance at the events featuring the prayer was not required by the state; religious dissenters were free to choose not to say the challenged prayers; and dissenters who so chose, or who chose not to attend the events, suffered no state-enforced sanction. Part I of this Article lays out the historical background that gave rise to the coercion test, traces the development of that test in the Court\u27s case law, and isolates the core elements in the vision of coercion that animates the test. Part II proposes a new reading of coercion under the Establishment Clause that keeps faith with the conceptual boundaries of coercion while also responding to the particular constitutional concerns that gave rise to the coercion test and to the particular holdings in the Supreme Court cases that have deployed it. Finally, Part III suggests that the coercion test, as reconstructed, could be the basis for restoring internal coherence and external predictability to constitutional analysis under the Establishment Clause