59 Pages Posted: 7 Oct 2013 Last revised: 11 Jun 2014
Date Written: October 5, 2013
Visual representations of religious symbols continue to puzzle judges. Lacking empirical data on how images communicate, courts routinely dismiss visual religious symbols as “passive.” This Article challenges the notion that symbols are passive, introducing insights from cognitive neuroscience research to Establishment Clause theory and doctrine. It argues that visual symbolic messages can be at least as active as textual messages. Therefore, religious messages should be assessed in a medium-neutral manner in terms of their communicative impact, that is, irrespective of their textual or visual form.
Providing a new conceptual framework for assessing religious symbolic messages, this Article reconceptualizes coercion and endorsement — the dominant competing approaches to symbolic messages in Establishment Clause theory — as matters of degree on a spectrum of communicative impact. This focus on communicative impact reconciles the approaches to symbolic speech in the Free Speech and Establishment Clause contexts and allows Establishment Clause theory to more accurately account for underlying normative concerns.
Keywords: First Amendment, Establishment Clause, free speech, government speech, religious symbols, religious displays, legislative prayer, neurolaw, cognitive neuroscience
JEL Classification: K10
Suggested Citation: Suggested Citation
Haupt, Claudia E., Active Symbols (October 5, 2013). 55 Boston College Law Review 821 (2014); Columbia Public Law Research Paper No. 14-395. Available at SSRN: https://ssrn.com/abstract=2336532