Divisiveness, National Narratives, and the Establishment Clause

Abstract

The Supreme Court habitually justifies the Establishment Clause as a means to prevent political division, protect the civil peace, and forestall citizen alienation. In spite of this popularity among the judiciary, legal scholars have emphatically rejected the political division theory. They state that religion is not especially divisive, and that even if it was, there is no reason to think non-establishment will prevent such political harm. This rejection relies on the misconception that the validity of the political division theory requires that all forms of religion must foment civil strife. This is a mistake. Often, laws apply to a wider category than to the core of what they seek to address. If this is the case, then even if non-establishment comes to merely prevent an especially erosive type of state and religion involvement, it may still be a valid and useful theory. In this Article, I argue that the political division theory is compelling when it is applied to a religion which seeks to collapse the distinction between politics and religion. To achieve this, I portray one such form of establishment of religion: American Christian Nationality, an ideology which sees the United States as having deep religious meaning and promotes Christianity as the central attribute of American identity. This Article will show that the combination between nationality and religion is uniquely divisive because it promotes a religious-based exclusionary understanding of who is a “real” American citizen. Many of the canonical Establishment Clause doctrines seem tailored to protect against government involvement in such religious movements.