The Supreme Court’s attempt to create a standard for evaluating whether the Establishment Clause is violated by religious governmental speech, such as the public display of the Ten Commandments or the Pledge of Allegiance, is a total failure. The Court’s Establishment Clause jurisprudence has been termed “convoluted,” “a muddled mess,” and “a polite lie.” Unwilling to either allow all governmental religious speech or ban it entirely, the Court is in need of a coherent standard for distinguishing the permissible from the unconstitutional. Thus far, no Justice has offered such a standard.
A careful reading of the history of the framing period reveals that those responsible for the initial implementation of the First Amendment were able to create a compromise that permitted the use of governmental religious speech in a way that was inclusive of all citizens, regardless of faith. Committed to creating an “American” vision of religious freedom, one that was distinct from the restrictive practices of the individual states, George Washington, Thomas Jefferson, and James Madison created a new template for public religious vocabulary. Through the use of non-sectarian, theologically equivocal language, they found a way to talk simultaneously to the most orthodox segment of the population and atheists, deists, and other members of religious minorities.
My Article proposes building on the lessons of the framing period to create a workable Establishment Clause jurisprudence. If we accept that non-sectarian phrases such as “endowed by their Creator” need not divide our nation, we can modify the traditional “endorsement test.” A workable test reflecting the Framers’ wisdom would only judge governmental speech as unconstitutional if it endorsed religion in such a way “that it sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Simple non-sectarian utterances, such as the Supreme Court’s invocation “God save the United States and this honorable court,” would be permitted, while the courthouse display of the Ten Commandments would be prohibited, and judges and lawyers would finally be able to rely on a usable, understandable Establishment Clause jurisprudence.
The Original Meaning of "God": Using the Language of the Framing Generation to Create a Coherent Establishment Clause Jurisprudence, 98 Marq. L. Rev. 1035 (2015)