Whether the accompanying policy would be discredited under the Establishment Clause would be, minimally, a matter of debate.evidence that an Establishment Clause violation has occurred.
This is in no small part due to her belief that the Establishment Clause bars any policy initiative that implicates religion, overtly or covertly, at any level of government.
The connections to her general reading of the Establishment Clause are obvious.
What sorts of broad public accommodations might the Constitution provide for religious groups?
As with the marriage debate in this country, much of the argument involves money.
Policy must determine the distribution of material benefits.
That religious believers are coercing non-believers? That only a tendentious reading of the Establishment Clause can save us from a regressive collapse into rule by religious clerics, or religious fundamentalists? Mallally noted that all anti-abortion movements are characterized by “religious fundamentalism, fake news, propaganda and hysteria.” I take this to be an example of the radical divergence of views that I mentioned above, for it seems to me very much the case that Greenhouse is engaging in her own secularist version of all these pathologies. Her reading would render free exercise largely meaningless.
Perhaps the reason why there is “no chance” the Court will “be receptive to Establishment Clause arguments” is because they are good enough scholars to know that Greenhouse’s arguments have little to do with the Establishment Clause.
Does she honestly believe that a proper reading of the Establishment Clause, either in historical construction or in case law, results in the “high wall” of separation she clearly favors?
In any case, the dismissive claim that “God’s will cannot be a constitutional justification for a law that erases an individual right” has little to do with any serious understanding of the Establishment Clause.