Warm thanks to Marc DeGirolami and Mark Movsesian for including me this month. I am looking forward to participating in this terrific forum.
It is often said among scholars of religious freedom that there is no secular Establishment Clause. When the government speaks, according to this view, the only real constitutional restriction is the rule against religious endorsement. So while public officials may not declare that “America is a Christian nation,” they may endorse environmentalism or denigrate smoking. Religion has special constitutional status in this area, or so it is often assumed.
Likewise, scholars and judges writing about free speech commonly say that the only enforceable restriction on government speech is the rule against religious endorsement. In the Summum decision, for example, the Supreme Court reiterated that the Speech Clause simply does not apply to government expression, and it implied or assumed that the only other constitutional restriction on official endorsement of ideas is the Establishment Clause.
Is this assumption—which is commonly repeated, although not commonly interrogated—actually correct? In a draft article available on ssrn, I argue that it is mistaken. In fact, government speech is properly limited in multiple situations by multiple constitutional doctrines, rooted variously in equal protection, due process, and free speech itself. To take only the most obvious example, it would be unconstitutional for the government to declare that “America is a White nation,” even if that statement carried no material consequences. In the piece, I give additional examples concerning electioneering, same-sex marriage exclusions, political gerrymandering, and messages about reproductive decisions. From these examples, and from the principles supporting them, I derive a constitutional theme called government nonendorsement.
I also draw out implications of this argument for theoretical debates over political morality, free speech, and religious freedom. With regard to the last, the principle of government nonendorsement bears on the pressing question of whether religion enjoys special constitutional solicitude. Mostly, my argument supports the position that religion is not special, but it also leaves room for the possibility that some constitutional values barring government expression on religion do not have secular counterparts.