In God We Trust: The Judicial Establishment of American Civil Religion

Abstract

Recent Federal Circuit Court rulings have approved the exclusion of individually expressed sectarian speech from publicly sponsored events on grounds that it is government speech, a principle affirmed with respect to private monuments on government property in the Supreme Court’s recent decision in Pleasant Grove City v. Summum, 555 U. S., 129 S.Ct. 1125 (2009). At the same time, courts have permitted non-sectarian religious speech that evidences a common “civic faith,” thereby permitting the advancement of individual expression of American Civil Religion at public events. The censorship of sectarian sentiments based on the argument that individual religious speech is governmental speech, threatens not only to extinguish the virtues of accommodation and diversity of religious expression in the public sphere, it imposes a dangerous monopoly on speech at public events in the name of government speech. By affirming the “civic faith” as the only permitted message, and restricting avenues for individual sectarian expression at governmental events, the judiciary amplifies avenues for the majoritarian intolerance that James Madison warned against in the Federalist papers. In the extreme, it opens the way to official manipulation of “non-denominational” civic faith to advance xenophobic or other ends, as evidenced in the conduct of the American Civil War. This article suggests that greater scrutiny is needed in the application of the government speech doctrine in order to avoid the diminution of precious First Amendment liberties. It concludes that the censorship of individually expressed sectarian sentiments at governmental events should be abandoned because the fiction that such speech is government speech is not sustainable and constitutes unlawful viewpoint discrimination, and because it will also serve to encourage religious tolerance and diversity, and disestablish American Civil Religion as the otherwise legally established religion of the country.

Keywords: First Amendment, American Civil Religion, Viewpoint Discrimination, Pleasant Grove City v. Summum