This paper considers whether religious symbols on public property might serve a permissible role within the secular polity, and whether there is a way to understand such symbols as compatible with secular commitments. While some attention will be given to constitutional issues, it is proposed that the jurisprudential incoherence in this area is less the result of legal interpretation and technique than with the way in which law has framed the concept of the secular. We are not facing a crisis in the Establishment Clause so much as a crisis in the secular. The aim of the paper is thus to explore how achieving greater coherence in Establishment Clause jurisprudence, and thereby making law an agent of constructive political engagement rather than a fomenter of religious culture wars, will require a rethinking of the secular. The central claim of this paper is that a binary approach to the secular has created a sharp and irresolute cleavage within legal discourse about religious symbols. There are two dominant traditions of understanding the secular, both with long genealogical resonance in western thought: Christian secularity and secularism. Constitutional debate has commonly framed, both implicitly and explicitly, the issue of religious symbols as demanding resolution in favor of one of these traditions. Rather than offering a way to overcome the divide and the culture war it encourages, the Court's jurisprudence has concretized the binary. [ABSTRACT FROM AUTHOR] Copyright of Chicago Kent Law Review is the property of Chicago Kent Law Review and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)
Zachary R. Calo,
Higher Law Secularism: Religious Symbols, Contested Secularisms, and the Limits of the Establishment Clause,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol87/iss3/6