The Establishment Clause crisis exists due to the Supreme Court’s promise that America would have a secular government—meaning one which was neutral between religion and irreligion, as well as being neutral to all religions. This promise evolved pursuant to the Supreme Court’s interpretation of the Establishment Clause. Nevertheless, the commitment to neutrality was never carried to fulfillment by the Court. The crisis may be illustrated by Congress’ addition of the words “under God” to the Pledge of Allegiance in 1954. This addition seemed to violate the promise of neutrality made by the Supreme Court in Everson v. Board of Education of the Township of Ewing. Furthermore, the Court proved unable to offer an alternative interpretation which would gain majority support among the Justices and the American people. Perhaps the tensions which led to the crisis could simply have been accepted as inevitable if the country had remained overwhelmingly religious and predominantly Christian. Yet, there is reason to think this will not be the case. Increasingly, parties who are not religious or come from other faiths will be calling upon the Court to fully redeem its pledge of government neutrality. Instead, today we have a country which appears to have rejected important aspects of the Court’s fundamental vision of the proper relationship of government and religion. The Court has used a variety of stopgaps and exceptions to uphold a number of governmental religious symbols in the face of its promise to neutrality. Thus, America will continue to have a crisis in Establishment Clause jurisprudence until the Court can forthrightly confront the question of whether a majority of the people of the United States may formally assert, through their government, that God exists and that the United States is subject to divine authority.
St. Mary's University School of Law
Could Government Speech Endorsing a Higher Law Resolve the Establishment Clause Crisis.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol41/iss1/2
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