Toward a Meaning-Full Establishment Clause Neutrality

Abstract

Some form of government neutrality toward religion, in contrast to a more pro-religion stance or a turn toward nonjusticiability, is the only interpretation of the Establishment Clause that can potentially lead to a national consensus concerning the proper role of religion in American public life. But to achieve that goal, neutrality theory must acknowledge and engage the need for the expressions of deep meaning on public occasions and in the public square generally. Current neutrality doctrine promotes a silent and empty public square. This article proposes an interpretation of neutrality that would allow a symbol-rich, meaning-full public square without violating the Establishment Clause. While such morally substantive symbolic government speech is more easily justified as neutral when religious imagery is avoided, even the utilization by government of traditional religious language and symbols may be understood as neutral toward religion as long as the overall content of the public square is not religious. This more vibrant form of government neutrality invites more, rather than less, expression into public life. The article utilizes the context of legislative and high school graduation prayer to illustrate the difference between current neutrality doctrine and meaning-full neutrality.

Keywords: Establishment Clause, Separation of Church and State, Government Neutrality, Religion, Everson, Secularism, God, moment of silence, prayer