The Future of the Establishment Clause in Context: A Response to Ledewitz

Abstract

Throughout a body of work, Bruce Ledewitz has argued for a different approach to the Establishment Clause. Ledewitz suggests that our society would better off if courts were more permissive of governments putting up religious symbols or offering religious messages. Nonbelievers have been deeply offended by these things. But such offense is unnecessary, Ledewitz says, as nonbelievers can focus on the deeper humanistic and essentially non-religious (or super-religious, if you will) messages that religious imagery conveys. And when nonbelievers choose to take offense at these kinds of things, they only deepen the religious/secular divide that is rattling our society's foundations.

This piece reviews Ledewitz's work. There is much to praise. Ledewitz is a thoughtful and empathetic person, trying to find some common ground between believers and non-believers that can enable them to live together in peace. But Ledewitz's approach has some significant drawbacks. Ledewitz criticizes the Supreme Court for drawing silly lines. But because Ledewitz still wants courts to declare outrageous endorsements of religion unconstitutional, he simply draws other silly lines. More fundamentally, Ledewitz would dilute the idea of religious neutrality beyond recognition, an idea that I take to be essential for reasons I try to briefly express.

Keywords: The First Amendment, Establishment Clause, Free Exercise Clause, separation of church and state, religious symbols, prayer, neutrality, equality, religion