Undoing Neutrality? From Separation to Tolerance in Establishment Clause Jurisprudence

Abstract

This essay argues that post-incorporation Religion Clause doctrine is the story of a long shift from a dominant norm of strict separation of church and state, to one of religious neutrality, to the brink of a new norm of “Judeo-Christian tolerance” - that is, a doctrine that permits special legislative protections for religious exercise, and that constitutionalizes civil religious practices like government references to deity, so-called “nonsectarian” government prayer, and other government-sponsored religious displays and symbols.

Nearly 50 years ago, Philip Kurland proposed a “religious neutrality” norm for the Religion Clauses. The Court did not take his advice; within a decade, the dominant Establishment Clause norm was the strict separation of church and state, though the special disabilities that separation imposed on religion under the Establishment Clause were balanced by constitutionally compelled exemptions giving special protection to religion under the Free Exercise Clause. Eventually, however, the Court shifted to religious neutrality as the dominant norm of both Religion Clauses, abandoning most of the special disabilities imposed by strict separation, as well as the special protections of religion afforded by exemptions.

Nevertheless, neutrality has remained the dominant norm only for Establishment Clause questions raised by the distribution of government benefits to religion. Neutrality has been substantially undermined by a statutory revival of religious exemptions that has reinstituted special protection for religious exercise, and by growing acceptance of government endorsement or appropriation of religious symbols and practices, so long as these do not entail coercion of belief.

The convergence of three doctrinal developments creates the possibility that tolerance might wholly displace neutrality as the dominant Establishment Clause norm, just as neutrality once displaced separation: the emergence of “acknowledgment” of religion as constitutionally permissible under the Establishment Clause, the Supreme Court’s elaboration of a “government speech” principle that may remove even religious government messages from First Amendment scrutiny, and the likely replacement of “endorsement” by “coercion” as the principal touchstone for measuring Establishment Clause violations.

Keywords: acknowledgement, church/state, endorsement, Establishment Clause, Free Exercise Clause, government speech, Judeo-Christian, Kennedy, Kurland, separation, tolerance