Steven Smith is correct: the Barnette principle as Justice Jackson states it is too sweeping to make sense. The principle has not done the mischief Smith attributes to it, however, because it has been subjected to some familiar qualifications that dispel his objections. Jackson's dictum applies only to religion, not to other possible objects of official orthodoxy. Even with respect to religion, it only prohibits action that explicitly endorses a religious view. This rule serves the purposes of the Establishment Clause well. In light of our deep disagreement about religious matters, and the obvious fact that religion can and does thrive without state support, there is no need for the state to declare any official religious line, and there is danger in letting it try.
No Expressly Religious Orthodoxy: A Response to Steven D. Smith,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol78/iss2/10