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nor put her theory in direct conflict with George Washington s farewell
insight about the importance of religion to the nation s prosperity, as well as
the Declaration s presupposition of a Creator and man s natural yearning for
the transcendent. O Connor thus made a founding precept into a constitu-
tional transgression.
In 1776, as now, some of our fellow citizens did dissent from the reli-
gious beliefs of the majority. The speech clause in the First Amendment
affirms this right of dissent.27 What neither the speech nor religion clauses
envisioned was that dissenting voices had the equivalent of a heckler s veto
to weaken or erase the basis upon which the nation was incorporated. Yes,
a person s legal standing could not be made to turn on belief or practice,
but an endorsement of religion without imposed legal consequence is sim-
ply not belief or practice. Failure to see the difference invites a level of judi-
cial micromanagement of human freedom including the trivial aspects of
the decor of holiday displays that is seldom justifiable in any area of the
law, let alone an area like religion, where, as Hamilton observed, the federal
government was without competence.28
Justice O Connor resisted an originalist interpretation of the establish-
ment clause on the theory that it would render free exercise protection redun-
dant. O Connor derived this redundancy concern from the school prayer
cases and some scholarly comment,29 which had asserted (incorrectly) that
legal coercion was unnecessary to find an impermissible establishment. Legal
coercion should be put back at the heart of both clauses to construe them cor-
rectly. The clauses simply protect freedom from coerced belief or practice in
two separate ways by an immunity from legally coerced prescription (estab-
lishment) and legally coerced prohibition (free exercise). Religious liberty is
sacrificed either when one is forced to worship at a church not of his choos-
ing or stopped from worshipping in a chosen manner.30 One misconstruction
THE TRUTH OF THE HUMAN PERSON 141
of a clause does not justify another, however especially when it yields the
unintended exclusion of a central aspect of human nature. Interpreting the
establishment clause to demand secularity was the first judicial fabrication.
The no endorsement theory is the second. The no endorsement view took on
the semblance of necessity because it was thought necessary to exclude vol-
untary prayer from school or religious schools from public programs. The
newly composed Roberts Court may pierce this facade. Justice Kennedy help-
fully began the work of reconnecting establishment with legal coercion in Lee
v. Weisman.31 In addition, it is part of the legacy of the late William Rehnquist
that there is a greater acceptance of nonpreferential assistance to all schools,
especially through vouchers,32 thereby removing another precedential incen-
tive for an overly exclusionary no endorsement policy.
The no endorsement theory should be likewise abandoned. Justice
O Connor s explanations of how it could be reconciled with the religious
suppositions of the Declaration of Independence are highly strained, or
worse, dismissive of the meaning of these references to faith. O Connor
concedes the prevalence of practices such as legislative prayers or the open-
ing of Court sessions with God save the United States and this honorable
Court, but instead of acknowledging their obvious religious import, she
reduces them to the significance of a gavel banging a proceeding into ses-
sion. In her words, religious references merely solemnize a public occa-
sion. Instead of Winthrop s covenant with God, these recitals express
confidence only in the future, not in a loving Creator.33 Yet under the no
endorsement theory, references to God even for ceremonial purpose could
make an atheist observer uncomfortable. Justice O Connor mitigates this by
suggesting that such an observer would know from context that such ref-
erences in a secular world were without significant meaning. Writes O Con-
nor in Allegheny: the history and ubiquity of a practice are relevant
because they provide part of the context in which a reasonable observer
evaluates whether a challenged governmental practice conveys a message of
endorsement of religion.34 In short, by this sleight of (or back of the) hand,
words like God save the United States and this honorable Court do not,
despite their religious roots, convey a message of endorsement of particu-
lar religious beliefs. 35 As Justice Kennedy insightfully responds, the effort
at rationalization may nominally save precedent, but only at the cost of an
unjustified hostility toward religion. 36
142 RELIGION AND THE AMERICAN FUTURE
The no endorsement rationale does allow government to lift burdens it
has imposed on religion, but this merely illustrates that Justice O Connor s
handiwork overlaps with the free exercise clause. If properly applied, the
free exercise clause would itself supply needed exemption from govern-
ment imposition. But the free exercise clause, too, has been diluted. Ironi-
cally, as discussed below, it is Justice O Connor who comes to the defense
of the original understanding of free exercise against Justice Scalia s curious
diminution of that provision. As Justice O Connor would correctly argue in
the free exercise context, belief is absolutely protected, while religiously
inspired conduct is only qualifiedly so, subject to an inquiry into whether
there is a compelling health and safety (public order) need to displace a reli-
gious practice, but not subject to an evaluation of the centrality of the reli-
gious conduct to the believer. While the no endorsement theory affirms that
it is not an impermissible establishment to lift government burden, it nev-
ertheless is one-sided. The no endorsement theory is more attentive to the
sensitivities of hypothetical observers than religious believers. The no
endorsement test, for example, takes no account of the message sent by, say,
the removal of a religious display from a public square, implicitly assuming
it has little religious meaning.
What would be the consequence of refocusing the establishment clause
on legal coercion? Quite simply, it would disable the exclusionary impulse
mistakenly accepted since Everson. With that anti-religion bias removed,
public religious displays or acknowledgments which today are ensnared in
Justice O Connor s no endorsement theory would be unobjectionable. With
a return to the original meaning of the establishment clause, Ten Com-
mandments displays, the historical Latin Cross on Mount Soledad, and
Menorahs and crèches displayed in public settings during the holiday sea-
son would be fully constitutional. None of these symbolic efforts imposes
constitutional injury, for none compels belief or action under law. Return-
ing to the original meaning thus simplifies constitutional adjudication, but
it also importantly avoids the extraordinary costs and divisiveness associ-
ated with legal efforts that make even the most minor mention of religion
into complex federal litigation. Such litigation has led to unsatisfactory,
uneven, and unwarranted results. Unsatisfactory because the outcomes
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