ABSTRACT

Cooper v. Eugene School District No. 4J (1986)

❖ One of the perennial dilemmas of constitutional law, a dilemma made especially acute by the scope of governmental programs in the modern administrative state, is how to reconcile the principle that government may not establish any official religion with the principle that government may not prohibit the free exercise of religion. The efforts of the United States Supreme Court in this area have produced a body of cases that is widely viewed as confusing, inconsistent, and mind-numbingly detailed.

Does Hans Linde's legal philosophy point to a better way? In this case, Linde's opinion focuses on real consequences, not legal forms. It avoids, for example, labeling the job of public-school teaching as a "privilege," and it denies that the prohibition against religious dress can be justified as a regulation of conduct rather than belief. Moreover, the opinion spends less time on grand principles than on the specific text and history of the Oregon Constitution. Finally, it assumes the good faith of the Oregon legislature and honors its judgment about how to protect the religious freedom of school children. Whether this apparent practicality and intellectual modesty result in a decision that is significantly better than (or even different from) decisions of the federal courts is a question about which readers will disagree. ❖