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.