Beyond Separation and Neutrality: “Non ‘Market Participant’” As the Central Metaphor of Religion Clause Jurisprudence

A metaphor has always dominated the Supreme Court\u27s religion clause jurisprudence. The metaphor prescribes the proper legal and political relationship between religion and government; it is a constitutional norm. This Article traces the historical development of this central metaphor—from separation to neutrality—and finds both metaphors lacking in normative adequacy. These inadequacies lead to the proposal of a new metaphor: government as a non \u27market participant.\u27 This metaphor essentially combines Justice Holmes\u27s marketplace of ideas with the market participant in the Court\u27s Dormant Commerce Clause jurisprudence, but with an important twist. The normative obligations of the new metaphor prevent government from regulating the behavior of citizen competitors in the religion market (free exercise) and from becoming a competitor or engaging in competitor behavior in that market (establishment). Both sets of governmental duties are aimed at achieving the single goal of maximal religious liberty for citizens