Zachary Kimmel (Stanford Law School) has posted Establishment Clause Pluralism (Albany Law Review, forthcoming) on SSRN. Here is the abstract:
The Supreme Court’s recent abandonment of the Lemon Test in favor of an interpretive framework grounded in “history and tradition” has transformed federal Establishment Clause jurisprudence. Yet this shift raises an overlooked question: what becomes of the parallel establishment provisions contained in nearly every state constitution? This Article provides the first systematic examination of how state supreme courts have responded to the federal doctrinal revolution. Drawing on the principles of the New Judicial Federalism, this Article develops a novel three-part taxonomy of state Establishment Clause jurisprudence. The first category—dynamic lockstepping, exemplified by California—comprises states that track federal constitutional doctrine as it evolves, automatically incorporating subsequent changes in federal methodology into state constitutional interpretation. The second category—static lockstepping, illustrated by Oregon and Tennessee—consists of states that adopted federal doctrine only as it existed at a fixed historical moment; as a result, the Lemon test survives as a matter of state constitutional law notwithstanding its apparent demise at the federal level. The third category, exemplified by Hawaii and Utah, comprises states that have rejected federal methodology altogether in favor of independent approaches rooted in local constitutional history and political tradition. Beyond documenting these divergent paths, the Article contributes to a richer understanding of the mechanics of state constitutional lockstepping, particularly during a period of profound change in federal constitutional jurisprudence.
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