Abstract
INTRODUCTION An extensive religious dimension in American public life, one which finds expression in rhetoric, rituals and symbols, poses a long-standing problem in establishment clause 1 jurisprudence. In this essay I will attempt a new approach to this problematic issue. First, I will trace the outlines of this public religion 2 and the constitutional ambiguities that trial in its wake. I will then focus on two recent decisions, Marsh v. Chambers 3 and Lynch v. Donnelly 4 . In these decisions, the Supreme Court developed what amounts to a de facto exception to traditional establishment clause doctrine, one that effectively allows government to acknowledge religion formally and publicly without somehow endorsing it. This doctrinal development is flawed in two respects: It is based on a misperception of the nature and origins of American public religion and creates as many constitutional problems as it purports to solve. I will then look to recent scholarly discussion of the history and sociology of American religion, focusing on the distinction that has been drawn between civil religion, an essentially secular, political phenomenon, and traditional, sacral religion. After discussing the roots of civil religion in the American historical experience I will look at how the phenomenon has been evaluated in light of the concerns that animate the establishment clause and, finally, suggest that by recognizing the existence of a civil religion and putting that recognition to use, courts can make good constitutional sense of American public religion. ...