GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2023

Status

Working

Abstract

For 75 years, the Supreme Court’s opinions have reflected stark conflict between two competing narratives about the Establishment Clause’s meaning and legal foundation. One view holds that the Constitution requires a separation between church and state. The other view asserts that the government may promote religion. The former view—which we call separationism—is based on the framers’ understanding of the nature of civil government, and on a political theory of liberal pluralism. The latter view—which we call religionism—is usually grounded in tradition, and principally has its roots in the Second Great Awakening of the nineteenth century and its urge to transform political society to serve religion.
This conflict has a definite trajectory. From the middle of the twentieth century until the 1980s, the separationist view almost always prevailed in the Court’s decisions. Starting in the 1980s, the alternative, religionist view began to displace the separationist view. This trend has recently accelerated.
We seek to provide a comprehensive account of the development of the religionist view of the Establishment Clause. Proponents of the religionist account typically claim that “history and tradition” support their approach, but they have not explained why tradition is a sufficient normative basis for current constitutional understandings. This turn toward tradition as a preferred normative methodology demands critical evaluation. When tradition becomes the source of adjudicative norms, courts must answer difficult questions about the choice, scope, age, duration, and depth of the claimed tradition. In addition, reliance on tradition requires consideration of the role that contemporary interpreters play in reconstituting the past when they seek to address present issues. Traditions are not found; they are created, because interpreters have deemed some past practices worthy of persisting normative force. Proponents of the religionist account have not explained why the practices that they elevate are more worthy of normative respect than other practices that cannot be reconciled with their claim of tradition.
The Court’s construction of a religionist Establishment Clause narrative coincides with the rise of an aggressive form of Christian nationalism in our politics. Both ultimately rely on a mythology that imagines a special relationship between the United States and God, in which God’s blessing depends on the American people’s reverence for God and obedience to divine law. We can step back from the civil conflict that this mythology threatens to foment only by recommitting to separationism—and its core principle that religion and civil government ought to occupy distinct spheres.

GW Paper Series

2023-55

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