Religious Expression and Symbolism in the American Constitutional Tradition: Governmental Neutrality, But Not Indifference

In this article, I describe and analyze three principles of First Amendment doctrine. First, the Establishment Clause generally forbids governmental expression that has the purpose or effect of promoting or endorsing religion. Second, and conversely, private religious expression is broadly defined and is strongly protected by the Free Speech Clause. Third, as an implicit exception to the first principle, the government itself is sometimes permitted to engage in expression that seemingly does promote and endorse religion, but only when the expression is noncoercive, nonsectarian, and embedded within (or at least in harmony with) longstanding historical tradition. Comparing these three principles to the demands of French laïcité , I conclude that the United States and France share fundamental common ground on the first principle, but that the second and third principles demonstrate that the American approach is in some respects more protective and tolerant of religious expression in the public domain. I suggest that these variations are not accidental, but rather are the product of historical, philosophical, and cultural differences.

Two recent controversies highlight the French commitment to laïcité, which demands a strict separation of church and state. First, France has strongly resisted the inclusion of religious language in the proposed European Constitution. Second, it has banned students from wearing Islamic headscarves and other conspicuous religious apparel in public schools. These actions address the relationship between church and state in the context of expression and symbolism, that is, verbal or symbolic speech. Taken together, the actions suggest that the state should be secular in its expression and that religious expression should be confined to the private realm.

The French commitment to laïcité is matched by a similar commitment in the United States, but the American constitutional tradition in this context is nuanced and complex. Our understanding of separation, like that of France, goes well beyond the institutional separation of church and state. We are committed to the idea of secular as opposed to religious government, and our national Constitution is itself a secular document. At the same time, general references to God are commonplace in state constitutions and in other official pronouncements. It is an open question whether our tradition would sanction the contemporary adoption of religious constitutional language such as the religious language considered for the European Constitution. Depending on the wording, however, this type of religious language might be permissible in the United States. And there is little doubt about American constitutional principles in the context of student religious attire. A law like the one adopted in France would almost certainly be unconstitutional in the United States.

At first glance, the American approach to religious expression and symbolism might seem confused and inconsistent. Consider the following, additional examples. School-sponsored prayer is strictly banned from public schools, even during graduation ceremonies and at extracurricular events, and even when offered by students rather than teachers. But public schools are required to permit students and community groups to hold religious meetings after school on the same basis as nonreligious meetings. And even during the class day, public school teachers-at least for the time being-may lead students in reciting the Pledge of Allegiance to the American flag, complete with its reference to “one Nation under God.” By contrast, efforts to promote the religious content of the Ten Commandments by posting them in public schools and in other public buildings have been declared unconstitutional. Likewise, governmental holiday displays cannot endorse the religious aspect of Christmas. Yet no one doubts the constitutionality of our national motto, “In God We Trust,” which is prominently displayed on American coins and currency. And American presidents routinely declare days of prayer and offer religiously oriented Thanksgiving proclamations.

In this article, I will discuss the American approach to religious expression and symbolism, suggesting that the American approach is multifaceted but not incoherent. If the French conception of laïcité can be understood to require neutrality in the sense of governmental indifference to religion, the American approach calls for neutrality of a somewhat different character. The American conception of neutrality-sometimes called “benevolent neutrality”-generally demands that the government not favor religion over irreligion, but, as an apparent exception, it permits some governmental expression that seems to violate this principle. Perhaps more important, the American understanding of neutrality grants private religious expression strong protection under the First Amendment’s Free Speech Clause, including strong protection against discriminatory treatment, and this protection extends to expression in public schools and other public places. The United States and France thus share a similar commitment to the separation of church and state, but the American commitment is distinctive in significant ways.

In an attempt to explain the American approach, I will discuss three constitutional principles. First, the Establishment Clause of the First Amendment generally forbids governmental expression that has the purpose or effect of promoting or endorsing religion. Second, and conversely, private religious expression is broadly defined and is strongly protected by the Free Speech Clause. Third, as an implicit exception to the first principle, the government itself is sometimes permitted to engage in expression that seemingly does promote and endorse religion, but only when the governmental practice is noncoercive, nonsectarian, and highly traditional in a historical sense. In closing, I will suggest that the American departures from the French conception of laïcité should not be overstated, but neither should they be ignored. I will further suggest that the variations are not accidental, but rather are the product of historical, philosophical, and cultural differences.