Nonestablishment Under God? The Nonsectarian Principle

Abstract

Using as a point of reference the Ninth Circuit's assertion in Newdow v. United States Congress that "[a] profession that we are a nation 'under God' is identical, for Establishment Clause purposes," to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god,' this essay attempts to disentangle three themes that the modern discourse of religious freedom often conflates, with baneful effect. We can call these the public secularism principle, the neutrality principle, and the nonsectarian principle. The essay argues that the first two of these principles have exercised a pernicious influence over First Amendment jurisprudence: but the third, if it could be extracted so that its own distinctive virtues could be appreciated, might provide valuable mooring for what is at present a deeply disoriented discourse.