Higher Law Secularism: Religious Symbols, Contested Secularisms, and the Limits of the Establishment Clause

Abstract

This paper considers whether religious symbols on public property might serve a permissible role within the secular polity, and whether there is a way to understand such symbols as compatible with secular commitments. While some attention will be given to constitutional issues, it is proposed that the jurisprudential incoherence in this area is less the result of legal interpretation and technique than with the way in which law has framed the concept of the secular. We are not facing a crisis in the Establishment Clause so much as a crisis in the secular. The aim of the paper is thus to explore how achieving greater coherence in Establishment Clause jurisprudence, and thereby making law an agent of constructive political engagement rather than a fomenter of religious culture wars, will require a rethinking of the secular.

The central claim of this paper is that a binary approach to the secular has created a sharp and irresolute cleavage within legal discourse about religious symbols. There are two dominant traditions of understanding the secular, both with long genealogical resonance in western thought: Christian secularity and secularism. Constitutional debate has commonly framed, both implicitly and explicitly, the issue of religious symbols as demanding resolution in favor of one of these traditions. Rather than offering a way to overcome the divide and the culture war it encourages, the Court’s jurisprudence has concretized the binary.

Whatever the relative intellectual merits of these two traditions — and the purpose of this paper is not to advance a normative position on the matter — neither has proven able to attract adequate cultural buy-in. One links the secular with a theological narrative that, to many, is narrow, exclusionary and fundamentally incompatible with the basic precepts of an open liberal society. The other defines the secular as standing over and against religion in a manner that fails to resonate with historical practices and the religious convictions of many citizens. What is instead needed is a way of conceptualizing the secular that opens the Establishment Clause to new forms of meaning. The primary aim of this paper is to offer such an account, which will be described as higher law secularism.

Keywords: Establishment Clause, Higher Law, Secularism, Secularity, Religious Symbols