Could Government Speech Endorsing a Higher Law Resolve the Establishment Clause Crisis?

Bruce Ledewitz, Duquesne University School of Law

Abstract

The crisis in Establishment Clause interpretation consists in the Supreme Court’s unwillingness to enforce the promise of government neutrality toward religion made in Everson in 1947 and its inability to offer an alternative interpretation that would gain majority support among the Justices and the American people. The crisis is symbolized by the Court’s reversal on standing grounds of the Ninth Circuit’s judgment that the words “under God” in the Pledge of Allegiance violate the Establishment Clause, thus “ducking” the case and the principle involved. The government speech doctrine would redeem Everson’s promise of neutrality without imposing a purely secular public realm on an American people unwilling to accept that kind of public life. Government may endorse the concept of higher law, and may do so using certain religious symbols, images and language, without establishing religion. Without specifying the relationship to the Establishment Clause, the Court used the government speech doctrine to decide the Pleasant Grove Ten Commandments case, thus suggesting the doctrine’s utility in this field. The government speech doctrine suggests changes in some, but by no means all, of the caselaw in Establishment Clause jurisprudence.