Religious Expression and Symbolism in the American Constitutional Tradition: Government Neutrality, But Not Indifference

In this article, I describe and analyze three principles of First Amendment doctrine. First, the Establishment Clause generally forbids governmental expression that has the purpose or effect of promoting or endorsing religion. Second, and conversely, private religious expression is broadly defined and is strongly protected by the Free Speech Clause. Third, as an implicit exception to the first principle, the government itself is sometimes permitted to engage in expression that seemingly does promote and endorse religion, but only when the expression is noncoercive, nonsectarian, and embedded within (or at least in harmony with) longstanding historical tradition.

Comparing these three principles to the demands of French la'fcit6, I conclude that the United States and France share fundamental common ground on the first principle, but that the second and third principles demonstrate that the American approach is in some respects more protective and tolerant of religious expression in the public domain. I suggest that these variations are not accidental, but rather are the product of historical, philosophical, and cultural differences. La Conception Américaine de la Laïcité, Symposium. University of Paris II (Panthéon-Assas) – Paris, France, January 28, 2005