Distorting the Establishment Clause Into an Individual Dissenter’s Right

Abstract

The one point on which nearly all scholars agree is that the Establishment Clause jurisprudence is in a state of confusion and disarray. One of the reasons for this confusion and disarray is that Establishment Clause doctrines, when being formulated in the 1960s and 1970s, were detached from their historical roots. As a result, there has been much distortion from the original meaning.

One of the more significant distortions has caused the Establishment Clause, particularly in connection with cases involving public displays of religious symbols or expressions, to be turned into a kind of individual right. Moreover, this individual right has become a dissenter’s right — or, in terms used with the Free Speech Clause, a heckler’s veto. This dissenter’s right is asserted on behalf of individuals who are offended by or uncomfortable with a public presence of religion. Therefore, even though the Establishment Clause was never intended to represent or protect an individual right, it has often been so applied.

This article will briefly outline the ways in which the Establishment Clause has been applied as an individual dissenter’s right. It will argue that such a right contradicts the original meaning and purpose of the Establishment Clause. The article will also describe how this individual dissenter’s right evolved out of a misinterpretation of separationism, as well as how it is used to achieve a kind of secularization not intended by the ratifiers of the Establishment Clause.

Keywords: Free Speech Clause, First Amentment Rights, Establishment Clause, Dissenter's Rights, Separatationism

JEL Classification: K1, K10, K19, K3, K30