establishment clause, separation, civil religion, ten commandments, Judeo-Christian

Document Type



In the recent Decalogue Cases, Justice Scalia argued that when it comes to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits th[e] disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists. Justice Scalia's argument represents the latest attempt to insulate American civil religion from Establishment Clause attack. A civil religion is a set of nondenominational values, symbols, rituals, and assumptions which create both reverence of national history and formation of a communal national bond.

The most recent incarnation of American civil religion is the Judeo-Christian tradition, which emerged in the 1950s as a set of spiritual values that was thought to be held by virtually all Americans. However, Judeo-Christianity no longer reflects the religious beliefs of all or nearly all Americans, if it ever did. Increases in unbelievers, Muslims, practitioners of non-Western religions, and adherents to postmodern spirituality now leave large numbers of Americans outside the boundaries of Judeo-Christianity.

As religious demographic trends have expanded American religious diversity beyond the bounds of Judeo-Christianity, political forces are contracting these same boundaries. In recent decades, conservative Christians have succeeded in projecting thick, sectarian meaning onto the purportedly inclusive symbols and observances of Judeo-Christianity, even as they continue to rely on the thin religiosity of civil religion to circumvent Establishment Clause limitations on government use of those symbols and observances. The contemporary ethic of religious equality that now informs Establishment Clause jurisprudence could regress into one of classic tolerance, under which the government would be constitutionally free to use a purportedly inclusive Judeo-Christian civil religion to endorse a sectarian Christianity. Similar tensions are evident in Europe.

The separation of government from thick conceptions of the good permits liberal democracy to function despite radically different religious beliefs that may exist among citizens. Insistence on an American democracy informed by Judeo-Christianity or, indeed, by any civil religion, is precisely the wrong solution to the problem of religious difference in the United States and elsewhere.


110 W. Va. L. Rev. 275

Publication Title

West Virginia Law Review