Indeterminacy and the Establishment Clause
Frederick Mark Gedicks
Brigham Young University - J. Reuben Clark Law School
April 18, 2009
Constitutional Commentary, Vol. 25, p. 279, June 2009
Prepared for a symposium on Kent Greenawalt, 2 Religion and the Constitution: Establishment and Fairness (Princeton, 2008), this essay responds to Professor Greenawalt's criticism of my argument in The Rhetoric of Church and State (Duke, 1995), that Establishment Clause doctrine is the incoherent residue of conflicting rhetorical discourses of religious communitarianism and secular individualism. Not only are the Supreme Court's Establishment Clause decisions inconsistent at the margins, but there is no identifiable core meaning that can account for these decisions. The essay concludes that, contra Greenawalt, the thesis of conflicting rhetorical discourses remains the most powerful explanation of the Court's doctrine in this area.
Number of Pages in PDF File: 5
Keywords: discourse, establishment clause, financial aid, indeterminacy, neutrality, religious communitarianism, religious symbols, rhetoric, secular individualismAccepted Paper Series
Date posted: November 25, 2008 ; Last revised: September 24, 2009
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