The Lawless Rule of the Norm in the Government Religious Speech Cases
20 Wash. & Lee J. Civil Rts. & Soc. Just. 405 (2014)
52 Pages Posted: 11 May 2014
Date Written: March 10, 2014
Various forms of speech by the government implicate religion in one way or another. These include nativity scenes and Ten Commandments displays in town halls and courthouses, the words “Under God” in the Pledge of Allegiance, the printing of “In God We Trust” on money, and so on. Over the past three decades, the Supreme Court has attempted to analyze these questions under various “tests:” the government should not “endorse” religion; should not “coerce” religious compliance; should in all ways act “neutrally.” But none of these tests has enjoyed consensus on the Court. The leading test has never commanded the support of more than five justices, and its subscribers have often disagreed internally over how the test should be applied. The “tests,” at this point, have very little predictive value.
This Article explores the Court’s struggle to impose tests on the question of government religious speech. I argue that outcomes in these cases depend less on the elements of any particular test than on majority bias and the sum of the voting Justices’ gut reactions. I then explain how an upcoming legislative prayer case offers the Court an opportunity to begin to let go of “tests” altogether, and to adopt an approach that is even more deferential to governments and the sensibilities of religious majorities.
Keywords: Constitutional Law, Establishment Clause, First Amendment
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