A Borderline Case: The Establishment Clause Implications of Religious Questioning by Government Officials
Does a border agent violate the Establishment Clause of the Constitution when he questions an individual about that person’s religious beliefs? The answer is unclear. The analysis that should be undertaken to reach that answer is similarly unsettled. This Comment addresses that gap in the literature. It considers whether policies under which government officials question individuals about their religion and religious practices violate the Establishment Clause. Because the Clause is more commonly used to consider government endorsement of religion (such as policies concerning school prayer and displays on government property), this is an underexplored area of the law. This Comment therefore addresses why this type of religious questioning is an appropriate topic for Establishment Clause analysis, proposes a new test for Establishment Clause compliance, and provides examples of how the test would apply to various factual scenarios.