Establishment and the Limits of Neutrality
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.