Rick Esenberg has two interesting recent additions to the SSRN database of scholarly papers, both of which develop his theory of “a more modest Establishment Clause.”  Here is the abstract of the first paper, entitled “Of Speeches and Sermons: Worship in Limited Purpose Public Forums”:

Recent decisions of the United States Supreme Court have held that governments who create limited purpose public forums may not exclude even “quintessentially religious” speech that is otherwise within the purpose of the forum. Nevertheless, governments frequently attempt to exclude religious speech that might be characterized as “worship” from such forums and the Ninth Circuit Court of Appeals, in conflict with the Second and (arguably) Seventh Circuits, has upheld such exclusion.

This article addresses whether worship can be regarded as a separate category of speech that may be constitutionally excluded from limited purpose public forums. To assess the idea that worship is “different,” it briefly assesses mainstream Christian theology concerning worship and concludes that worship is likely to communicate ideas about life in the world that are within the boundaries of most broadly defined public forums. Exclusion of such speech would be inconsistent with the Court’s insistence upon neutrality between religion and irreligion and is unnecessary to avoid the risk or appearance of establishing religion.  

The paper is forthcoming in the Mississippi Law Journal. 

Here is the abstract of the second paper, entitled “You Cannot Lose If You Choose Not to Play: Toward a More Modest Establishment Clause”:

Much of our Establishment Clause jurisprudence and commentary strives to achieve neutrality among religions and between religions and irreligion. Moreover, judges and scholars have sought a neutrality that protects religious dissenters from injuries which, however real, are far removed from the coercion and imposition of legal disabilities traditionally associated with the creation of state churches. The ambition of this sort of Establishment Clause neutrality is captured in former Justice O’Connor’s “endorsement” test – a doctrine that seeks to save the dissenter from even exposure to state-sponsored messages that may make her feel like a “disfavored member of the political community. ”

This paper argues that such neutrality is impossible. When “religious” is properly understood as a way of life which impacts and is impacted by ways of life and messages that are not limited to worship or theistic assertions, it becomes clear that modern government can hardly avoid engaging in activities or sending messages that will make some religious dissenters feel “disfavored.”

The paper considers various responses to this failure of Establishment Clause ambition and concludes that the best option is surrender. While neutrality, in the sense of avoiding undue support for or hostility toward religions or irreligion, remains a useful guiding principle, the ambition of Justice O’Connor’s nonendorsement principle (or similar doctrinal formulations) cannot be achieved and the attempt to do so results in unacknowledged bias.

The paper appeared in print at 12 Roger Williams U. L. Rev. 1 (2006).