Document Type

Article

Publication Date

2010

Abstract

State invocations of God are common in the United States; indeed, the national motto is "In God We Trust." Yet the Establishment Clause forbids the state from favoring some religions over others. Nonetheless, courts have found the national motto and other examples of what is termed ceremonial deism constitutional on the ground that the practices are longstanding, have de minimis and nonsectarian religious content, and achieve a secular goal. Therefore, they conclude, a reasonable person would not think that the state was endorsing religion.

But would all reasonable people reach this conclusion? This Article examines the "reasonable person" at the heart of the Establishment Clause's endorsement analysis. The starting point is the feminist critique of early sexual harassment decisions, which often held that a reasonable person would not find that the alleged harassment created a hostile work environment. Feminists argued that the supposedly objective reasonable person was actually a reasonable man, that because of structural inequalities, men and women often have different perspectives on what amounts to sexual harassment, and that reliance on this unstated norm perpetuates male privilege rather than remedies it.

This Article argues that the same insights apply to the reasonable person used to evaluate ceremonial deism. The supposedly objective reasonable person too often equates to a reasonable Christian. Furthermore, just as men might find harmless comments that women would find offensive, Christians may find acceptable certain invocations of God that non-Christians would find alienating because of their status as religious outsiders. Finally, reliance on this norm perpetuates Christian privilege rather than ensures religious liberty and equality for all. Consequently, the constitutionality of ceremonial deism should be evaluated from the perspective of a reasonable religious outsider.

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