This Article argues that the Establishment Clause prohibits public actors or agencies from adopting religious messages and symbols. The limitation is explicitly stated in the First Amendment, which restricts government from encroaching on religious belief and ritual. Separation between private and public spheres protects thought, belief, and practice under the Free Exercise Clause and prevents official orthodoxy under the Establishment Clause. One religion clause requires government to respect deeply held personal beliefs that are parallel to beliefs in God, while the other clause prohibits government from participating in sectarian conduct. Government speech can describe, explain, contextualize, and characterize religious rituals without actually engaging in them. While the Establishment Clause prohibits government intrusion into individual autonomy, the Free Exercise Clause safeguards beliefs of persons but not of government entities.
The Article first defines government speech, distinguishes it from sincerely held beliefs of individuals who work in government, and discusses examples of legitimate public communications about religion. It further critiques cases arising from claims that government speech violated the Establishment Clause by having religious monuments on public property and organizing sectarian prayer before legislative sessions. Next, the Article reviews current Establishment Clause jurisprudence and the resulting tests used to evaluate governmental speech, asserting that the existing tests should be thought of as levels of scrutiny. It also explains whether and how each test engages the overarching question of whether the government speech is religious or about religion, the core distinction between government participation in and government tolerance of religion. Finally, the Article advocates for the (now unwisely overturned) “excessive government entanglement” test of Lemon v. Kurtzman as the best mode of analysis of these two contextual features of the First Amendment.
a. Visiting Professor of Law, George Washington University Law School; Professor and Raymond & Mary Simon Chair in Constitutional Law, Loyola University School of Law, Chicago; Cambridge University Press Studies on Civil Rights and Civil Liberties, General Series Editor; Oxford University Press Theoretical Perspectives in Law, General Series Editor. I am grateful for feedback on this draft from Helen Norton and Martin Redish.
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