Higher Law Secularism: Religious Symbols, Contested Secularisms, and the Limits of the Establishment Clause

There are two dominant traditions of understanding the secular, both with long genealogical resonance in western thought: Christian secularity and secularism. The former links the secular to a theological narrative, while the latter defines the secular as standing over and against religion. Constitutional debate has commonly framed 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 generates, the Court's jurisprudence has instead concretized the binary.

Only by cultivating a new understanding of the secular in law might there emerge an approach to Establishment Clause jurisprudence that overcomes the regnant binary. This article offers the idea of higher law secularism as way of reconceptualizing the secular that opens the Establishment Clause to such alternative forms of meaning.