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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.


File nameDate UploadedVisibilityFile size
6 Sep 2022
2.27 MB



  • Subject
    • First Amendment

  • Journal title
    • Boston College Law Review

  • Volume
    • 43

  • Issue
    • 5

  • Pagination
    • 1071

  • Date submitted

    6 September 2022