Hitting the Reset Button on Freedom of Conscience: Reading the Writing on the Wall

Abstract

The Supreme Court’s jurisprudence respecting the Establishment Clause oftentimes purports to prevent the establishment of religion by examining whether there has been a history of excessive entanglement with a particular faith, as well as whether a proposed action attempts to advance the cause of a particular religion. Yet also, at many times, the Court has gone further to attempt to secularize as much of the public sphere as possible, even when that is neither desirable nor possible. How would the Court handle the lawsuit filed in 2011 by the group American Atheists, who contend that a cross being erected at the 9/11 Museum made from materials from the wreckage, violates the civil rights of non-Christians? When the Court interprets the First Amendment in a manner that does not abide by the text, its decisions can commit generality-shifting errors that impose a non-textual provision onto a work that was the legislative product of a “bundle of compromises”. Of course, within this regard there is the fact that religious neutrality may be the only way to keep the peace between an America that is filled with an ever increasing religious diversity daily. Should we necessarily treat the clause as one subject to an evolving standard like the Eighth Amendment? Should we strictly limit it to the four corners of the compromises hammered out by the Founders? This Article attempts to explore the text, the history, the common law, and the statistics of religion in America in a search for a solution to this hotly debated dilemma within the law.