Rick Esenberg has a new article in print that explores tensions within the Supreme Court’s Establishment Clause jurisprudence.  In light of the recent, controversial decision overturning the National Day of Prayer, Rick’s topic could not be more timely.  As Rick observed earlier this week, the Day of Prayer opinion is consistent with a long line of cases that attempt to achieve a level of government neutrality as to religion that seems unrealistic and overly ambitious.  The article argues that “subtle expressive injury” cannot be entirely avoided when the government speaks, and suggests that the Establishment Clause jurisprudence would be much improved by abandoning any pretense to complete expressive neutrality.

The article, entitled “Must God Be Dead or Irrelevant: Drawing a Circle that Lets Me In,” appeared at 18 Wm. & Mary Bill Rts. J. 1.  The abstract appears after the jump. 

Some scholars claim that current Establishment Clause doctrine can increasingly be explained in terms of substantive neutrality — that is, the idea that government ought to treat religion and irreligion (or comparable secular activities) in the same way. Whether a product of the Court’s commitment to the idea or an artifact of the positions of the “swing” Justices, this proposition has considerable explanatory power. The Supreme Court has, in recent years, permitted the government to make financial support equally available for religious uses, as long as it is done on a neutral basis and through the private choice of the recipients. It has required the government, in its superintendence of general and limited purpose public forums, to treat comparable religious and secular speakers identically.

But the Court has continued to insist upon a substantial degree of secularity with respect to government speech. Some have argued that this is consistent with substantive neutrality as well. Government has but one voice and, while money and facilities can be made available in a way that respects individual choice, prayers and messages concerning religion cannot. Substantive neutrality, the argument continues, requires government silence on religious matters.

The problem is that modern government is not — and probably cannot be — silent on such matters. In addition, current doctrine is ambitious. It seeks to prevent even very subtle injury to dissidents. As a consequence, it cannot protect religious objectors to secular speech with religious implication in the same way it seeks to protect even secular objectors from even the most bland of religious speech.

I argue that this asymmetry is not substantively neutral. Drawing, in part, on the insights of post-liberal theology, I suggest that it permits the precise expressive harm that Establishment Clause doctrine claims to seek to prevent — that is, permits religious dissidents to feel they are disfavored members of the political community and allows the state to influence religious formation. Drawing on theories regarding the value of mediating institutions, including the Catholic notion of subsidiarity and the Calvinist idea of sphere sovereignty, I maintain that this asymmetry is undesirable and offer a less ambitious paradigm. Because we cannot protect the religious and secular from subtle expressive injury in the same way, we ought not to try.