Government Nonendorsement

Warm thanks to Marc DeGirolami and Mark Movsesian for including me this month.  I am looking forward to participating in this terrific forum.

It is often said among scholars of religious freedom that there is no secular Establishment Clause.  When the government speaks, according to this view, the only real constitutional restriction is the rule against religious endorsement.  So while public officials may not declare that “America is a Christian nation,” they may endorse environmentalism or denigrate smoking.  Religion has special constitutional status in this area, or so it is often assumed.

Likewise, scholars and judges writing about free speech commonly say that the only enforceable restriction on government speech is the rule against religious endorsement.  In the Summum decision, for example, the Supreme Court reiterated that the Speech Clause simply does not apply to government expression, and it implied or assumed that the only other constitutional restriction on official endorsement of ideas is the Establishment Clause.

Is this assumption—which is commonly repeated, although not commonly interrogated—actually correct?   In a draft article available on ssrn, I argue that it is mistaken.  In fact, government speech is properly limited in multiple situations by multiple constitutional doctrines, rooted variously in equal protection, due process, and free speech itself.   To take only the most obvious example, it would be unconstitutional for the government to declare that “America is a White nation,” even if that statement carried no material consequences.  In the piece, I give additional examples concerning electioneering, same-sex marriage exclusions, political gerrymandering, and messages about reproductive decisions.  From these examples, and from the principles supporting them, I derive a constitutional theme called government nonendorsement.

I also draw out implications of this argument for theoretical debates over political morality, free speech, and religious freedom.  With regard to the last, the principle of government nonendorsement bears on the pressing question of whether religion enjoys special constitutional solicitude.  Mostly, my argument supports the position that religion is not special, but it also leaves room for the possibility that some constitutional values barring government expression on religion do not have secular counterparts.

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One response to “Government Nonendorsement

  1. annedanielson

    With all due respect, although it is true that our Founding Fathers did not establish a State Religion, this Nation was, in fact, founded on Judeo-Christian principles which included the recognition of God’s Ten Commandments and respect for the personal and relational essence of the human person from the moment of our creation, which is not the moment of our birth.

    In regards to protecting our unalienable Right to Life, upon which our Liberty and Pursuit of Happiness depends, Roe v. Wade is a lie from the start because it is a self-evident truth that a human person can only conceive a human person and thus every human embryo, as a son or daughter of a human person, not being a human place or a human thing, can only be a human person.

    In regards to Religious Liberty, if our Founding Fathers did not believe in Religious Liberty, they would not have protected our inherent Right to Religious Liberty, to begin with. Since it is true that our Nation was founded on Judeo-Christian principles, then why would you suggest that our Founding Fathers believed our Government should serve to endorse values that are not consistent with our founding Judeo-Christian principles?

    In regards to Marriage and exclusions to Marriage, it is a self-evident truth that regardless of one’s race or ancestry, not every couple can live in relationship as husband and wife. For this reason, the fact that a father and daughter, mother and son, brother and sister, two children, two men, two women, one man and two women, one woman and two men, can not exist in relationship as husband and wife and thus can not be married to each other, is not unjust discrimination. Marriage, by its very essence, is restrictive to begin with.

    At the end of the day, our Government exists to secure and protect our unalienable Rights that have been endowed to us from God, not only for our sake, but for the sake of our prosperity and the posterity of this Nation.

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