When Government Speaks Religiously
86 Pages Posted: 11 May 2013
Date Written: November 6, 1993
Religious ideas, symbols, and voices are woven extensively into the tapestry of American public tradition. When the inclusion of religious elements in public life is the result of government action, that tradition collides with constitutional doctrine. Government speaks religiously when it uses words or symbols to convey religious ideas or sentiments, such as the delivery of a prayer at a public event or the display of a religious symbol on public property. Such speech is restrained by the Establishment Clause, but drawing the establishment line between permissible and impermissible messages is enormously difficult.
An approach is needed that not only is faithful to the historic values expressed in the Establishment Clause, but also accounts for the unique difficulties related to official expression of religious sentiments in a religiously pluralistic society where government shapes many of the institutions of public culture.
This Article suggests a proper Establishment Clause jurisprudence for government religious speech. Part I discusses why government religious speech is analytically different from other forms of government support of religion and therefore justifies a unique approach to assessing its constitutionality. Part II criticizes the various tests the Supreme Court has applied to government religious speech and suggest that the Court has failed to formulate coherent standards for distinguishing between permissible and impermissible religious messages. Part III examines the colonial and founding periods for principles that may suggest why certain forms of government religious speech were not considered an “establishment” of religion. Part IV offers an alternative analytical approach that applies historic Establishment Clause values to official religious expression in a pluralistic society.
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