Government Religious Speech and the Establishment Clause

Abstract

The government says religious things.  From monuments and holiday displays to legislative prayers, religion saturates the government’s public voice.  But how can that be permissible when the Establishment Clause, at least in theory, indicates the government should be religiously neutral?

So far, the Supreme Court’s attempts to address the puzzle have come up short.  Early on, the Court suggested that seemingly all government speech must be secular, or that it refrain from ‘endorsing’ religion.  But the Court never consistently enforced those limits, struggling to reconcile them with America’s historical experience.  And in recent years, the Court has rejected those approaches outright, veering instead toward a focus on bare tradition. 

But what if there’s another way to think about the problem?  This Article proposes that several important strands of Founding-era history suggest an alternative principle: that the religious opinions of the populace are not proper objects of government action.  On this view, because each person possesses an equal right to private judgment in matters of religion, government generally lacks the power to dictate matters of religious opinion—through coercion yes, but also through its expressive power.  From this perspective, the problem with government religious speech is not that government speech must always be secular (it need not be), nor that government must avoid alienating anyone (a virtually impossible task).  Rather, the goal is identifying when government is moving beyond acknowledging or reflecting the religious makeup of the citizenry and instead using its power to foster religious conformity.  We suggest that this anti-conformity principle offers a more sensible approach to government religious speech—one with real but defensible limits—while also providing a more convincing explanation of current precedent than the Court itself has yet offered.

Keywords: Government religious speech, Establishment Clause neutrality, Establishment Clause, Founding-era principles, Anti-conformity principle, Religious opinion, private judgment, United States Supreme Court, religion jurisprudence