Religion and the Public Square: Making Democracy Safe for Religious Minorities

In 1995, Judge Richard Posner ruled that the state of Illinois could not celebrate Good Friday as a statewide holiday for the public schools.\u27 Closing all Illinois public schools on Good Friday, Posner declared, violated the Establishment Clause of the Constitution by plac[ing] the support of the state behind a wholly sectarian holiday. The Ninth Circuit has disagreed, upholding Good Friday as a state holiday in Hawaii. Federal courts have similarly reached varying conclusions about the constitutionality of other symbolic endorsements of Christianity, including the use of a cross as part of a government seal, the inclusion of the phrase in the year of our Lord in government documents, and the singing of religious Christmas carols in public schools. Still other Christian rites are so intertwined with American life that they are largely uncontroversial: for example, no federal court has ever invalidated Sunday closing laws or the celebration of Christmas as a national holiday. Despite these numerous overt governmental endorsements of Christianity, a number of legal scholars have begun to conclude that there is not enough religion in our public life. They argue that in our secular society, religion is marginalized. Pointing to Supreme Court doctrines that prohibit the government from funding religion or religious education, that limit the religious symbols that may be displayed in public places, or that invalidate government-sponsored prayer, they charge that in the United States, religion has become a mere hobby. To reinvigorate the American religious spirit, these scholars urge that the government be permitted to engage in even more religious symbolism, and indeed to fund religion and religious education. In short, the government ought to encourage religious belief of all denominations. This Article focuses on one particular aspect of this growing debate over the appropriate role of religion in our society. What is often called the question of religion in the public square asks about the basis on which citizens and legislators ought to make public policy decisions. What, in our society, constitutes a legitimate reason for government action and public policy? The debate about religion in the public square is between those who maintain that all policies ought to be justified by secular reasons accessible to believers and non-believers alike, and those who maintain that religious justifications are as legitimate as secular ones