The Confusion of Fusion: Inconsistent Application of the Establishment Clause Nondelegation Rule in State Courts
By: Jun Xiang
It seems almost beyond dispute that if the Federal Establishment Clause prohibits anything, it prohibits religious institutions from wielding governmental power. So thought the U.S. Supreme Court in Larkin v. Grendel’s Den, Inc. when it announced that the delegation of governmental power to churches amounted to an impermissible “fusion” of government and religion. Subsequent applications of the nondelegation rule have been less clear, however. A number of state courts have wrestled with the issue of whether the nondelegation rule prohibits religiously affiliated universities from employing state-empowered campus police officers. Though the state courts are now in nominal agreement—the use of campus police by religious universities does not offend the Establishment Clause—the evolution of this line of cases illustrates that what at first appears to be a straightforward, uncontroversial rule is in fact a doctrinal conundrum. This Note argues that the nondelegation rule has introduced needless confusion into the already complicated Establishment Clause jurisprudence. The rule’s mischief might be tolerable if there were some cases that the rule is uniquely suited to address. As this Note shows, however, the nondelegation rule has no such saving grace: Any analytical insights it might contain are already captured by clearer, better-credentialed Establishment Clause doctrines.
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