Neutrality Fatality as between Government Speech and Religion and Nonreligion: How the Government Speech Doctrine Provides a Solution
Jankowski, Haley, Brigham Young University Law Review
The Free Speech Clause of the First Amendment protects the right to speak for all individuals and entities, including the government, but the Establishment Clause requires the government to maintain neutrality regarding religious speech and action.1 So what happens when these two constitutional rights collide? This Comment argues that because the Establishment Clause mandates neutrality only between religions and not as between religion and nonreligion (absolute neutrality), the government should be able to speak and endorse religion in general under the government speech doctrine.
One might argue that this is not a common collision because the Establishment Clause applies only to government. But this conflict arises whenever the government adopts as its own any religious speech.2 Under the relatively new government speech doctrine, the government has the constitutional power to "speak for itself."3 In other words, just as every U.S. citizen is entitled to speak freely, the U.S. government is entitled to have and express its own opinions. Of course, this doctrine is subject to some limitations, notably the Establishment Clause.4
The Court has been unclear about how it would handle a collision between the government speech doctrine and Establishment Clause neutrality. Even in cases that appear to have implicated both, the Court has not addressed the potential conflict.5 While scholars have discussed government speech and viewpoint neutrality in general,6 the legal literature has likewise sidestepped the more narrow discussion of how the government speech doctrine can provide a solution to the neutrality mandate. Scholars who discuss the government speech doctrine merely mention the Establishment Clause in passing, but they do not explore whether or how the clause limits government speech.7 Similarly, articles that focus on Establishment Clause neutrality note the government speech cases, but skirt the central issue of how the two concepts relate.8 The few articles that do discuss the interplay between the government speech doctrine and the Establishment Clause have either maintained a much narrower focus (e.g., by focusing on how the doctrines affect public schools),9 or explored the two doctrines to illustrate a separate and distinct argument regarding their relationship.10
This Comment first proposes that Establishment Clause neutrality should not apply to governmental endorsements of religion in general, meaning it does not mandate absolute neutrality. This approach would be almost impossible for the government to maintain for various reasons explained below,11 and the government should be held to a more manageable standard, which would require it not to prefer specific religious sects over one another. Where a governmental message endorses belief generally but not a particular religion, the Establishment Clause is not violated.
The Court has interpreted the Establishment Clause to prohibit the government's favoring any particular religion over others, which is largely undisputed.12 But the Court has also stated that favoring religion over nonreligion is prohibited,13 an assertion which is less certain. Although the Court has frequently repeated this apparent rule of neutrality between "religion and nonreligion,"14 it has never actually applied it in a real case, which makes the repetition of this phrase seem hollow. Therefore, this Comment concludes that while the government cannot show preference for one religion over another, the purported requirement of absolute neutrality is not part of Establishment Clause doctrine.
If the purported requirement of absolute neutrality does not exist and the Establishment Clause does not actually prohibit the government from endorsing religion in general, it follows that the government may take a stance on general moral and religious principles under the government speech doctrine - another argument mentioned by several works in different contexts but not yet fully developed. …