A Two-Track Theory of The Establishment Clause

Abstract

Establishment Clause doctrine has long been informed by two mutually antagonistic values: the separation of church and state, and government neutrality with respect to religion. This puzzle of conflicting values mirrors that of Speech Clause doctrine, which has operated for decades with a value conflict between content-based and content-neutral regulation under the so-called "two-track" theory of the Speech Clause. This Article compares Establishment Clause doctrine with the two-track Speech Clause in order to illuminate how separation and neutrality might coexist. Just as Speech Clause doctrine provides an absolute minimum of constitutional protection for expression against even content-neutral regulation, so also Establishment Clause doctrine provides for an absolute minimum of church-state separation against even religiously neutral government action. As a result, neutrality has not totally eclipsed separation, which is the more fundamental Establishment Clause value.