Unconstitutional Conditions: Unrecognized Implications for the Establishment Clause

In this Article, Professor McConnell contends that the courts' treatment of funding of religious and secular institutions conflicts with the analysis of government funding schemes almost universally accepted in other contexts. In doing so, the author accepts that the crude distinction between penalties and subsidies now employed in constitutional law is misleading and will not work. The author's thesis is that the Supreme Court's test for an establishment of religion, set forth in Lemon v. Kurtzman, relies squarely on this crude and misleading distinction and must before be rejected or reinterpreted.