You Cannot Lose If You Choose Not to Play: Toward a More Modest Establishment Clause

Abstract:     
Much of our Establishment Clause jurisprudence and commentary strives to achieve neutrality among religions and between religions and irreligion. Moreover, judges and scholars have sought a neutrality that protects religious dissenters from injuries which, however real, are far removed from the coercion and imposition of legal disabilities traditionally associated with the creation of state churches. The ambition of this sort of establishment clause neutrality is captured in former Justice O'Connor's "endorsement" test - a doctrine that seeks to save dissenter from even exposure to state sponsored messages that may make her feel like a "disfavored member of the political community. "

This paper argues that such neutrality is impossible. When religious is properly understood as a way of life which impacts and is impacted by ways of life and messages that are not limited to worship or theistic assertions, it becomes clear that modern government can hardly avoid engaging in activities or sending messages that will make some religious dissenters feel "disfavored."

The paper considers various responses to this failure of establishment clause ambition and concludes that the best option is surrender. While neutrality, in the sense of avoiding undue support for or hostility toward religions or irreligion, remains a useful guiding principle, the ambition of Justice O'Connor's nonendorsement principle (or similar doctrinal formulations) cannot be achieved and the attempt to do so results in unacknowledged bias.

Keywords: establishment clause, religion, religious dissent, religious neutrality, nonendorsement

JEL Classifications: K1, K19, K4

Accepted Paper Series