Laws Intentionally Favoring Mainstream Religions : an Unhelpful Comparison to Race

In various articles spanning the past thirty years, Jesse Choper has argued for a rather indulgent approach to laws adopted to favor one or more religions.' According to Choper, intentional government preferences for religion should survive Establishment Clause review as long as they are not likely to "impair religious freedom,"2 by which he means not likely to make people either (1) act contrary to their religion, (2) engage in a religious activity that, though not barred by their religion, they would not otherwise have engaged in, or (3) contribute financial support to religion.3 Applying this approach, Choper has, for example, argued that the Supreme Court erred in striking down a Kentucky statute that required public schools to post the Ten Commandments in all classrooms 4 and an Arkansas statute that prohibited public schools from teaching evolution.5 He also has made clear that, as long as the costs to the government are relatively minimal, he has no difficulty with the government's putting up creches or other religious holiday displays. 6